Schultz v. Andrus

190 N.W. 83, 178 Wis. 358, 1922 Wisc. LEXIS 33

• Court: Wisconsin Supreme Court
• Decided: October 10, 1922
• Status: Published

Opinion

Doerfler, J.

Where one renders valuable services for another, as a rule a contract to pay a reasonable value for such services will be implied.

However, “Where near relatives by blood or marriage reside together as one common family, and one of them renders services to another, and such other furnishes him board and lodging or other necessaries or comforts, a presumption arises that neither party, intended tO' receive or' to pay compensation for the services rendered on the one hand, or for the board and lodging or other necessaries or comforts on the other; that they were intended as mutual acts of kindness done or furnished gratuitously.” Estate of Kessler, 87 Wis. 660, 664, 59 N. W. 129.

A close relationship having existed between the claimant and the deceased, by marriage, and she having lived in the family of the deceased, performing services in and about the household, and not being required to pay for rent or lodging, in order to enable the claimant to- recover it was incumbent upon her to show by competent evidence either an express agreement or facts and circumstances to rebut the presumption of law that the services were performed gratuitously. The only competent evidence in the case affecting the subject of compensation for services is based upon the testimony of Mrs. Annie Duerr, who testified that prior to the time that claimant left the household of the deceased he told the witness that if claimant remained with him as long as he lived she would receive pay at the rate of $5 a week.

It is contended by the appellant that the agreement last referred to constitutes an entire contract, and that in leaving the employ of the deceased prior to the latter’s death she breached such contract and should therefore be denied any compensation.

It appears from the evidence, conclusively, that claimant performed her services either under and pursuant to the express entire contract testified to by Mrs. Duerr, or that such services were performed without any contract whatever. The contract testified to was clearly an entire contract and obligated the claimant te» substantially perform the same before she would be entitled to compensation thereunder, and she having failed to perform her contract, and the liability of the estate for the amount claimed in this action depending upon such performance, the claimant cannot recover. Moritz v. Larsen, 70 Wis. 569, 36 N. W. 331; Manthey v. Stock, 133 Wis. 107, 113 N. W. 443; Prautsch v. Rasmussen, 133 Wis. 181, 113 N. W. 416; McDonald v. Bryant, 73 Wis. 20, 40 N. W. 665; Boutin v. Lindsley, 84 Wis. 644, 54 N. W. 1017; Warehouse & B. S. Co. v. Galvin, 96 Wis. 523, 71 N. W. 804; Widman v. Gay, 104 Wis. 277, 80 N. W. 450.

Where a valid express contract is proven no recovery can be had on an implied contract. Manning v. School Dist. 124 Wis. 84, 102 N. W. 356; Pearson v. Switzer, 98 Wis. 397, 74 N. W. 214; White v. Lueps, 55 Wis. 222, 12 N. W. 376; Werre v. Northwest T. Co. 27 S. Dak. 486, 131 N. W. 721; Lowe v. Jensen, 22 N. Dak. 148, 132 N. W. 661; Hunt v. Tuttle, 125 Iowa, 676, 101 N. W. 509; Ecker v. Isaacs, 98 Minn. 146, 107 N. W. 1053; Wade v. Nelson, 119 Mo. App. 278, 95 S. W. 956; 9 Cyc. 749.

Under the foregoing authorities it is therefore held that claimant’s contract with the deceased was an entire contract, and, such contract having been breached by her, no recovery thereon can be sustained. Claimant’s claim being based upon an express contract, no recovery under the evidence in this case can be had on a quantum meruit basis.

By the Court. — Judgment of the court below is reversed, and the cahse remanded with instructions to dismiss the complaint.