The following opinion was filed March 19, 1907:
Wikslow, J.
As appears by the statement of facts, the circuit court allowed an amendment to the original claim as filed in the county court which added two entirely new items, aggregating $185.06, and submitted them to the jury. This was clearly erroneous. This court has held that matters not presented in the county court cannot be brought into the controversy upon appeal, because the theory of the statute is that only claims which haye been passed upon by the probate court are to be considered upon the appeal. Sloan v. Duffy, 117 Wis. 480, 94 N. W. 342. The circuit court has undoubtedly power to allow amendments in its discretion to such [42]*42claims, but the amendment must be within the scope of the claim presented to the county court. It cannot present an entirely new item or claim. Where the original claim is for the value of definite property or services, an amendment increasing the amount of such value is permissible, because such an amendment cannot be considered as adding a new or independent claim, but as merely making change in the scope of the claim upon which the county court passed. Dayton v. Estate of Dakin, 103 Mich. 65, 61 N. W. 349. See, also, Longwell v. Mierow, 130 Wis. 208, 109 N. W. 943.
The appellant moved for a nonsuit and also for a directed verdict on the ground that no express contract to pay for the alleged services had been shown, and as the rulings on these motions present the same general question they will be considered together. In such consideration it becomes necessary to make some further statement of the evidence.
The evidence showing that the claimant was received into the family of the deceased and was called a son and treated in all respects as a son from his fifth to his twentieth year as well as during a number of months after his return from the army in his twenty-fifth year has already been quite fully stated. At this latter time the deceased sold his farm and the claimant started out to make his own way. No change appears to have taken place in the feelings of the parties toward each other at this time. The deceased still continued to speak of the claimant as his son and his boy, and the claimant apparently lost none of his filial regard, and his children seem to have considered and treated the deceased as their grandfather. In April, 1893, the deceased requested the claimant and his family to come and live with him in his house in Wauwatosa, and the claimant did so, and from that time until September, 1895, they all lived together as one family. The testimony seems to show that during this time the claimant furnished the food and such care as the deceased needed, while the deceased furnished the house without [43]*43charge for rent In September, 1895, the claimant moved to another house near by, but still continued to furnish meals and care to the deceased, who continued to room in his own house until October, 1896. There is no direct evidence of any contract by the deceased to pay for the board and services so rendered, but there was considerable evidence by the claimant’s children, as well-as by disinterested witnesses, that the deceased said at numerous times that he was reserving the house for his son J ohn (the claimant) or that he was going to give the house in which he lived to his son J ohn for the help which John had always given him. It will he readily seen that the question whether the relations between the deceased and the claimant during the time they lived together were those of parent and child or of strangers to each other becomes a very important one. The circuit judge recognized its importance and charged the jury in substance that if they found the relations to be those of parent and child they must also find an express contract to pay for the services in order to find a verdict for the claimant, but if such were not the relations the claimant might recover upon implied contract.
The general questions involved have been frequently considered by this court and the following propositions have been very definitely settled: Where a child lives in -his parent’s household, even after his majority-, eating at his parent’s table and rendering services such as are ordinarily rendered by the members of a household to each other, the presumption is that the board and services mutually rendered are intended to be gratuitous, and no contract to pay therefor on either side will be implied; but there must be an express contract shown either by direct and positive evidence, or by circumstantial evidence equivalent to direct and positive. Pellage v. Pellage, 32 Wis. 136. The same rule applies between, brother and sister (Hall v. Finch, 29 Wis. 278), stepfather and stepson (Wells v. Perkins, 43 Wis. 160; Ellis v. Cary, 74 Wis. 176, 42 N. W. 252), foster parent and child (Tyler [44]*44v. Burrington, 39 Wis. 376; Martin v. Estate of Martin, 108 Wis. 284, 84 N. W. 439), uncle aud niece (Leitgabel v. Belt, 108 Wis. 107, 83 N. W. 1111); and it has been recently said that in all cases “where there is close relationship between the parties, and they live under the same roof, the rule is almost universal that services rendered by one to the other are presumed to be simply natural acts of kindness, and intended as a gratuity” (Williams v. Williams, 114 Wis. 79, 89 N. W. 835). In the last-named case it was further said that “there doubtless are cases where, though the parties do not live in the same household, still, from the closeness of the relationship and the fact of dependence of the one upon the other, as of an aged parent upon a son, or a feeble sister upon a brother, the same presumption may arise.”
The facts as to the relations of the parties in the present case were all undisputed. The deceased always regarded the claimant as a son, and treated him as such both during the latter’s childhood and during his adult years, and the claimant responded by treating the deceased as a father. In the claimant’s youth he was dependent upon the deceased, and in the old age of the father- he was in turn dependent upon the claimant. We think that upon the undisputed facts the presumption arose that the claimant’s services for his father from 1893 until October,T896, were gratuitous, and that the jury should have been so instructed. This conclusion does not necessarily mean, however, that a nonsuit should have been ordered or a verdict for the defendant directed. It simply means that the jury should have been told that no recovery could be had unless an express promise by the deceased to pay for the services had been first proven, either by direct and positive evidence, or by evidence of circumstances which in their nature are equivalent to direct and positive proof. The principle is that, if such express promise be proven, it removes the presumption that the services were gratuitously rendered; if the express promise be to pay money or will per[45]*45sonal property, it may be enforced according to its terms; if it be in whole or in part a promise to will real estate, it cannot be enforced because of tbe statute requiring such contracts to be in writing, sec. 2304, Stats. (1898), but it still removes the presumption and leaves the ground clear for a recovery of the reasonable value.
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The following opinion was filed March 19, 1907:
Wikslow, J.
As appears by the statement of facts, the circuit court allowed an amendment to the original claim as filed in the county court which added two entirely new items, aggregating $185.06, and submitted them to the jury. This was clearly erroneous. This court has held that matters not presented in the county court cannot be brought into the controversy upon appeal, because the theory of the statute is that only claims which haye been passed upon by the probate court are to be considered upon the appeal. Sloan v. Duffy, 117 Wis. 480, 94 N. W. 342. The circuit court has undoubtedly power to allow amendments in its discretion to such [42]*42claims, but the amendment must be within the scope of the claim presented to the county court. It cannot present an entirely new item or claim. Where the original claim is for the value of definite property or services, an amendment increasing the amount of such value is permissible, because such an amendment cannot be considered as adding a new or independent claim, but as merely making change in the scope of the claim upon which the county court passed. Dayton v. Estate of Dakin, 103 Mich. 65, 61 N. W. 349. See, also, Longwell v. Mierow, 130 Wis. 208, 109 N. W. 943.
The appellant moved for a nonsuit and also for a directed verdict on the ground that no express contract to pay for the alleged services had been shown, and as the rulings on these motions present the same general question they will be considered together. In such consideration it becomes necessary to make some further statement of the evidence.
The evidence showing that the claimant was received into the family of the deceased and was called a son and treated in all respects as a son from his fifth to his twentieth year as well as during a number of months after his return from the army in his twenty-fifth year has already been quite fully stated. At this latter time the deceased sold his farm and the claimant started out to make his own way. No change appears to have taken place in the feelings of the parties toward each other at this time. The deceased still continued to speak of the claimant as his son and his boy, and the claimant apparently lost none of his filial regard, and his children seem to have considered and treated the deceased as their grandfather. In April, 1893, the deceased requested the claimant and his family to come and live with him in his house in Wauwatosa, and the claimant did so, and from that time until September, 1895, they all lived together as one family. The testimony seems to show that during this time the claimant furnished the food and such care as the deceased needed, while the deceased furnished the house without [43]*43charge for rent In September, 1895, the claimant moved to another house near by, but still continued to furnish meals and care to the deceased, who continued to room in his own house until October, 1896. There is no direct evidence of any contract by the deceased to pay for the board and services so rendered, but there was considerable evidence by the claimant’s children, as well-as by disinterested witnesses, that the deceased said at numerous times that he was reserving the house for his son J ohn (the claimant) or that he was going to give the house in which he lived to his son J ohn for the help which John had always given him. It will he readily seen that the question whether the relations between the deceased and the claimant during the time they lived together were those of parent and child or of strangers to each other becomes a very important one. The circuit judge recognized its importance and charged the jury in substance that if they found the relations to be those of parent and child they must also find an express contract to pay for the services in order to find a verdict for the claimant, but if such were not the relations the claimant might recover upon implied contract.
The general questions involved have been frequently considered by this court and the following propositions have been very definitely settled: Where a child lives in -his parent’s household, even after his majority-, eating at his parent’s table and rendering services such as are ordinarily rendered by the members of a household to each other, the presumption is that the board and services mutually rendered are intended to be gratuitous, and no contract to pay therefor on either side will be implied; but there must be an express contract shown either by direct and positive evidence, or by circumstantial evidence equivalent to direct and positive. Pellage v. Pellage, 32 Wis. 136. The same rule applies between, brother and sister (Hall v. Finch, 29 Wis. 278), stepfather and stepson (Wells v. Perkins, 43 Wis. 160; Ellis v. Cary, 74 Wis. 176, 42 N. W. 252), foster parent and child (Tyler [44]*44v. Burrington, 39 Wis. 376; Martin v. Estate of Martin, 108 Wis. 284, 84 N. W. 439), uncle aud niece (Leitgabel v. Belt, 108 Wis. 107, 83 N. W. 1111); and it has been recently said that in all cases “where there is close relationship between the parties, and they live under the same roof, the rule is almost universal that services rendered by one to the other are presumed to be simply natural acts of kindness, and intended as a gratuity” (Williams v. Williams, 114 Wis. 79, 89 N. W. 835). In the last-named case it was further said that “there doubtless are cases where, though the parties do not live in the same household, still, from the closeness of the relationship and the fact of dependence of the one upon the other, as of an aged parent upon a son, or a feeble sister upon a brother, the same presumption may arise.”
The facts as to the relations of the parties in the present case were all undisputed. The deceased always regarded the claimant as a son, and treated him as such both during the latter’s childhood and during his adult years, and the claimant responded by treating the deceased as a father. In the claimant’s youth he was dependent upon the deceased, and in the old age of the father- he was in turn dependent upon the claimant. We think that upon the undisputed facts the presumption arose that the claimant’s services for his father from 1893 until October,T896, were gratuitous, and that the jury should have been so instructed. This conclusion does not necessarily mean, however, that a nonsuit should have been ordered or a verdict for the defendant directed. It simply means that the jury should have been told that no recovery could be had unless an express promise by the deceased to pay for the services had been first proven, either by direct and positive evidence, or by evidence of circumstances which in their nature are equivalent to direct and positive proof. The principle is that, if such express promise be proven, it removes the presumption that the services were gratuitously rendered; if the express promise be to pay money or will per[45]*45sonal property, it may be enforced according to its terms; if it be in whole or in part a promise to will real estate, it cannot be enforced because of tbe statute requiring such contracts to be in writing, sec. 2304, Stats. (1898), but it still removes the presumption and leaves the ground clear for a recovery of the reasonable value. A recovery under this latter principle is logically and truly a recovery upon implied contract, but it is differentiated from an ordinary recovery upon implied contract by the fact that it only becomes possible by virtue of the previous establishment of the express promise, while in controversies between strangers no such previous express promise need be shown. Ellis v. Cary, 74 Wis. 176, 42 N. W. 252; Estate of Kessler, 87 Wis. 660, 59 N. W. 129; Leitgabel v. Belt, 108 Wis. 107, 83 N. W. 1111; Martin v. Estate of Martin, 108 Wis. 284, 84 N. W. 439; Loper v. Estate of Sheldon, 120 Wis. 26, 97 N. W. 524. The broad statement sometimes made, that in such cases as the present there can be no recovery upon implied contract, is therefore inaccurate, if not positively incorrect. Correctly speaking, the principle is that there can be no contract implied merely from the fact of the rendition of the services; but where they are rendered under an express promise to devise land in return, a contract to pay the reasonable value may be implied and recovered upon, provided such express promise is satisfactorily proven. As it has been before stated, there were a number of declarations proven to have been made by the deceased in his lifetime to the effect that he was going to give the property to his son J ohn, that he was reserving it for John, that it would be John’s some day, and other statements that he would make it all right with John some day. These, we think, were sufficient to go to the jury in connection with the other circumstances in the case upon the question whether an express promise to pay for the services in some way was made by the deceased.
Another question becomes important at this point, namely, [46]*46the effect of the statute of limitations. It has been twice held by this court that in case of recovery upon implied contract, arising because of the invalidity of an express promise to will real estate, the cause of action accrues when the services are rendered as in other cases of implied contract, so that if the services were rendered more than six years before the death of the deceased the statute of limitations will run against them and bar a recovery, unless the operation of the statute be in some way suspended.. Martin v. Estate of Martin, supra; Loper v. Estate of Sheldon, supra. The decision in the Kessler Case, which might at first glance seem to be to the con trary, is .not really so, because in that case the services 'were continued up to the time of the death of the promisor. In the present case it appears that the services entirely ceased in the month of October, 1896, and that the deceased died April 16, 1902. It therefore appears that there could be no recovery upon implied contract for the services and board rendered prior to April 16, 1896, because they were rendered more than six years before the death of the testator, unless it further appeared that the running of the statute was suspended. There was proof that the deceased left Wisconsin and went to Indiana October 30, 1896, and thereafter spent most of his time in Indiana, returning to Wisconsin occasionally -until his death in April, 1902. This constitutes the entire proof upon the subject, unless the facts' that he retained his ownership of his homestead and that his estate is being probated in Milwaukee county be considered as bearing on the subject. This proof seems to have been considered as establishing the fact that he ceased to reside in this state, and hence that the operation of the statute of limitations was suspended. The statute, sec. 4231, Stats. (1898), provides that if, after a cause of action has accrued against any person, “he shall depart from and reside out of this state,” the time of his absence shall not be deemed as a part of the time limited for the commencement of the action. Departing from the state and remaining [47]*47absent a large portion of the time do not necessarily prove that the party so departing has changed his residence. The proof was not sufficient to show that the deceased departed from and resided out of the state; and, in the absence of an express contract to pay for the services in money at the death of the testator, all claims np to April 16, 1896, seem to be barred by the statute of limitations.
Exception was tahen by the defense to that part of the charge of the trial court on ‘the subject of the burden of proof- and the preponderance of evidence. As this alleged error was not assigned in appellant’s brief we do not consider it, but we do not deem it improper to call attention -to the fact that it seems to be practically identical in language and meaning with the instruction disapproved by this court in the case of Anderson v. Chicago B. Co. 127 Wis. 273, 106 N. W. 1077. A number of exceptions to the admission of evidence were argued, but we have found no error in them, and do not regard them as of importance enough to discuss in detail.
By the Court. — Judgment reversed, and action remanded for a new trial.
A motion for a rehearing was denied May 21, 1907.