Mr. Justice Shakswood
delivered the opinion of the court, Janjuary 6th 1876.
This was an action instituted in the court below by the plaintiffs to recover- upon an alleged contract by Adam and Martha Neal in their lifetime, that if the plaintiffs would stay with them until they were respectively twenty-one years of age, Adam and Martha Neal would “ at their death give them all they had.”. Assuming, on the authority of Graham v. Graham’s Ex’rs, 10 Casey 475, that the measure of damages, in an action for the breach of such a contract, is the value of the services rendered, it was submitted to the jury to find a verdict for the value of such services, which they accordingly did. We will consider the assignments of error in their order.
The first assignment is that the court erred in instructing the jury “ that if Elias Gilmore (one of the plaintiffs) was absent learning a trade and serving in the army by consent of Martha Neal, that that amount of time should not be deducted from the whole value of the services up to the time he arrived at the age of twenty-one years.” There was no error in this instruction properly understood. The learned judge certainly did not mean to say that the plaintiffs were entitled to recover for the time during which either of them was absent by permission, but that such absence should not work a forfeiture of any part of their wages while they were rendering service. He instructed the jury that they were entitled to recover the whole value of their actual services — not for time while they were not rendering service.
The second error assigned is that the court charged the jury “ that the twenty-five acres of the farm given by Martha Neal to Richard Gilmore (in her lifetime) should not be taken into account or deducted from the value of the services rendered.” It is undoubtedly true that in an ordinary contract of hiring, a present made by the master to his servant is not to be allowed or deducted from his wages. But here the plaintiffs set up and relied upon a special promise to give them all that the Neals had at their death. It would be strange if, in a claim for the value of the services under such a contract, the defendants could not show the value of what the decedents had actually given in their lifetime in part performance of it. It is sticking in the bark to say that the contract [426] was specific to give them what they had at their death. If during their lives they gave as much as the services were worth, it would be an anomalous result to allow them still to recover the full value of their services besides. The presumption, in the absence of evidence, was that the gift was intended as pro tanto a payment on account — as it certainly would have been if the law had permitted a recovery according to the terms of the contract of the whole estate of Adam and Martha Neal at their death. We think there was error in this instruction.
The third assignment is based upon the refusal of the court to affirm the first point of the defendants below. The point assumed that the plaintiffs had declared upon a contract with Martha Neal alone and not upon a joint contract by her and Adam Neal. But, although the first count of the amended declaration is as assumed in the point, the second count is on a joint contract, and the action was against the executors of the survivor of the two joint contractors. We think therefore that it would have been error to have affirmed this point.
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Mr. Justice Shakswood
delivered the opinion of the court, Janjuary 6th 1876.
This was an action instituted in the court below by the plaintiffs to recover- upon an alleged contract by Adam and Martha Neal in their lifetime, that if the plaintiffs would stay with them until they were respectively twenty-one years of age, Adam and Martha Neal would “ at their death give them all they had.”. Assuming, on the authority of Graham v. Graham’s Ex’rs, 10 Casey 475, that the measure of damages, in an action for the breach of such a contract, is the value of the services rendered, it was submitted to the jury to find a verdict for the value of such services, which they accordingly did. We will consider the assignments of error in their order.
The first assignment is that the court erred in instructing the jury “ that if Elias Gilmore (one of the plaintiffs) was absent learning a trade and serving in the army by consent of Martha Neal, that that amount of time should not be deducted from the whole value of the services up to the time he arrived at the age of twenty-one years.” There was no error in this instruction properly understood. The learned judge certainly did not mean to say that the plaintiffs were entitled to recover for the time during which either of them was absent by permission, but that such absence should not work a forfeiture of any part of their wages while they were rendering service. He instructed the jury that they were entitled to recover the whole value of their actual services — not for time while they were not rendering service.
The second error assigned is that the court charged the jury “ that the twenty-five acres of the farm given by Martha Neal to Richard Gilmore (in her lifetime) should not be taken into account or deducted from the value of the services rendered.” It is undoubtedly true that in an ordinary contract of hiring, a present made by the master to his servant is not to be allowed or deducted from his wages. But here the plaintiffs set up and relied upon a special promise to give them all that the Neals had at their death. It would be strange if, in a claim for the value of the services under such a contract, the defendants could not show the value of what the decedents had actually given in their lifetime in part performance of it. It is sticking in the bark to say that the contract [426] was specific to give them what they had at their death. If during their lives they gave as much as the services were worth, it would be an anomalous result to allow them still to recover the full value of their services besides. The presumption, in the absence of evidence, was that the gift was intended as pro tanto a payment on account — as it certainly would have been if the law had permitted a recovery according to the terms of the contract of the whole estate of Adam and Martha Neal at their death. We think there was error in this instruction.
The third assignment is based upon the refusal of the court to affirm the first point of the defendants below. The point assumed that the plaintiffs had declared upon a contract with Martha Neal alone and not upon a joint contract by her and Adam Neal. But, although the first count of the amended declaration is as assumed in the point, the second count is on a joint contract, and the action was against the executors of the survivor of the two joint contractors. We think therefore that it would have been error to have affirmed this point.
The last assignment is that the court erred in admitting the deposition of Oliver O. House. The first objection was that it related to a joint contract made by Adam Neal and Martha Neal with plaintiffs, the suit being against Martha Neal’s executors alone, and the plaintiffs having so declared. But, as we have seen in' examining the third assignment, this objection is founded on an error of fact. The second count of the amended declaration is upon a joint contract, and the action is properly brought against the executors of the survivor. Another objection to the deposition was, that it was incompetent and irrelevant. But the witness was surely competent, and the evidence he gave competent and relevant. If for no other reason, it was pertinent to the issue, because it showed the relation in which the parties stood to each other, and the circumstances under which the plaintiffs went to live with Adam and Martha Neal. If, as is probable, the defendants below meant to object that the testimony of Oliver O. House was not sufficient of itself to be submitted to the jury as evidence of a contract, the objection should have been, not to the admission of the deposition, but to its effect when admitted. The court might have been asked to charge the jury upon the effect of it. This, however, was not done. As the case goes back for another trial, we think it proper to express an opinion upon this point, although not raised on this record. Adam and Martha Neal were the first cousins of the plaintiffs. The mother of the plaintiffs having died and their father being intemperate, Adam and Martha Neal took the two boys, Elias and Richard Gilmore, to live with them. They had no children of their own. The boys were then of the ages of two and six years, respectively. A short time after the witness House — a half-brother of the plaintiffs — went to see [427] them. He says the Neals “ stated to me they had taken a great liking to the children, and would like to keep them, and if their father, John Gilmore, would stay and work the place and behave himself, they would give him a certain share of the crop, and if they, the children, would stay until they were of age, they would take them and raise them as their own. They would give them a good common education, and at their death would give them what they had.” This was evidently a mere declaration of the intention of the Neals towards the children. It has none of the marks of a contract. There was no stipulation that the boys should render them service of any kind. They would raise them as their own. It was a contract all on one side. It is true that if you assume that there was a contract, the mere agreement that the boys should stay with them and afford them the comfort of their society would be a sufficient consideration. But in determining whether there was a contract at all, the fact that 'all the important benefits were on one side is most significant. These children were of tender years; they were to be nurtured and watched; fed, clothed, and lodged; nursed and provided with medical attendance in sickness; sent to school, and launched into the business of life when they attained majority. The Neals declared that they would stand to these children in the relation of parents. They did so faithfully. It would have been a cruel thing if, without sufficient cause, they had repudiated their promise and turned them out of doors. We are compelled to think, however, they could have done so. Their alleged contract was a mere declaration of their intention at that time. It does not mend the matter that the witness added : “ I informed Gilmore of the facts in the ease and made what I considered a fair, well-understood contract.” With whom and by whose authority did he make this contract ? He does not say that the Neals gave him authority to contract with the father, and from his own statement they made no contract with him. If there was no contract such as was set up, there was then a preliminary question, which ought to have been submitted to the jury, whether the plaintiffs were living with their cousins upon an implied contract to be paid for their services. What the character and extent of the services were we are not informed by the paper-books. It is true that their relation as first cousins was not such as of itself to 'rebut the legal presumption of an implied contract arising from services rendered and accepted. But if the parties lived together with the understanding that the Neals assumed the place and duty of parents — if the boys lived with them as their children and members of the family — the jury ought to have been instructed that the plaintiffs could not recover. Nothing is better settled than that while the performance of labor by one for another raises an implied assumpsit to compensate it, yet this implication may be rebutted by proof of circumstances showing such a relation between [428] the parties as repels the idea of contract: Urie v. Johnston, 3 P. R. 212; Swires v. Parsons, 5 W. & S. 357; Defrance v. Austin, 9 Barr 309. In cases of this character — claims against the estates of decedents for services rendered by members of their family — it is important that the reins should be held by the courts with a firm and steady hand. There should be great precision and positiveness in the instructions given to the jury, who are too apt to be carried away by their sympathy for claimants who have been disappointed in their perhaps just and reasonable expectations .from the gratitude or affection of decedents.
Judgment reversed and a venire facias de novo awarded.