This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
The rule that there is no implied agreement for a compensation for services between persons in domestic relations living together as members of a family, is merely a prima facie rule. In the absence of any evidence there is a presumption that such services are gratuitous.1 This presumption is rebuttable,2 and it has been held error when evidence has been introduced to show that there was an understanding for compensation to charge that there was a presumption of law against such claim.3
8Sprague v. Sea, 152 Mo. 327; 53 S. W. 1074.
9 Glenn v. Gerald, 64 S. C. 236; 42 S. E. 155.
10Pfeiffer v. Michelsen, 112 Mich. 614; 71 N. W. 156; Cates v. Gilmer (Tenn. Ch. App.), 4S S. W. 280.
11Lackey's Estate, 181 Pa. St. 638; 37 Atl. 813.
1 "A presumption of law arises that such service is gratuitous."
Bixler v. Sellman. 77 Md. 494, 496; 27 Atl. 137.
2 Pitts v. Pitts, 21 Ind. 309; Resso v. Lehan, 96 la. 45; 64 N. W. 689; Bixler v. Sellman, 77 Md. 494; 27 Atl. 137; Ulrich v. Ulrich. 136 N. Y. 120; 18 L. R. A. 37; 32 N. E. 606; Gorrell v. Taylor. 107 Tenn. 568; 64 S. W. 888.
3 Ulrich v. Ulrich, 136 N. Y. 120; 18 L. R. A. 37; 32 N. E. 606.
The force of the presumption has been held to depend upon the relationship of the parties, the presumption becoming "weaker and therefore more easily rebutted as the relationship recedes."4 It is for the person alleging that such mutual services were not gratuitous to prove that fact.5 An express contract to make compensation between the persons between whom such services are rendered is sufficient to create a liability on the part of the person receiving such services to make compensation therefor,6 as where a father promises to make compensation to his son for furnishing board and lodging.7 Thus where a brother-in-law induces his sister-in-law, who was a member of the family and worked in her brother-in-law's store as well as in the family, to believe that she would receive pay for such services, he is liable to her therefor, even if he did not intend to make such compensation, and was jesting when he made the statement on which she relied.8 It is not necessary, however, that the express contract between the parties should be enforceable. Even though for some reason it may be unenforceable as a contract, it may, nevertheless, suffice to show that the services were not rendered gratuitously.0 Thus, where a step-daughter rendered services for her step-father under an oral agreement which is unenforceable by reason of the statute of frauds, she may recover a reasonable compensation for the services thus rendered.10 So where a mother makes an agreement with the guardians of her insane son when he comes to live at her house that she shall be paid for caring for him out of his estate, such agreement is sufficient to show that such services were not rendered gratuitously even though the contract was unenforceable because the appointment of the guardians was void.11 So it has been held that recovery can be had for services rendered upon the understanding that the party for whom they were rendered would make compensation by will, where he dies without making any such provision in his will, even though there was no agreement as to the amount of such compensation.12 So, if there has been an express enforceable contract, the person rendering such services may, in case of a breach of such contract for any reason, recover a reasonable compensation for such services.13 Thus, where a son supported his father for life, under a contract by which the father was to devise to the son certain realty, and the father by reason of subsequent insanity, was unable to perform such contract, the son may recover a reasonable compensation for such services, not exceeding the value of the land to be devised to him.14 So recovery may be had for services rendered by a son to a father under a contract which has since been rescinded, in which case the son is obliged to account for personalty received by him under such contract and not surrendered when the contract was terminated.15 While an express contract is the most satisfactory and safe method of showing that the services-were not intended to be gratuitous, it is not, however, necessary. If the facts and circumstances of the case show that there is in fact an understanding between the person rendering the services and the person for whom they were rendered, that a compensation should be made therefor, the person rendering the services may recover a reasonable compensation.16 Such understanding, however, must be clearly proven,17 or as some courts have held, there must be an express contract or its equivalent.18 Some courts have gone further than this. They have declared that such a contract can be proven only by direct and positive evidence, and that it is erroneous to charge the jury that such a contract may be proved by clear and satisfactory evidence ;19 or have spoken as if an express contract, were indispensable.20 This statement, however, carries the rule too far. The true rule is, that the rendition of such services is not by itself any evidence that there was an agreement between the parties for compensation, and does not of itself impose any liability upon the party for whom they were rendered. No liability exists, unless there is proof of a contract, implied or expressed for compensation ; and the rendition of such services is not such evidence. It has even been held not to be necessary to have in fact a mutual understanding that the services rendered between relatives are for compensation in order to create a liability therefor. If the person rendering such services expects to be compensated and the circumstances under which they are rendered are such that the person for whom they are rendered must, as a reasonable man, know that they are rendered for compensation, he is liable therefor even if he did not in fact know of such expectation.21 Declarations to third persons, made by the person for whom services are rendered by a member of his family, to the effect that such services are valuable and will be paid for are not sufficient to show the existence of a contract to pay therefor.22
4Gorrell v. Taylor, 107 Tenn. 568; 64 S. W. 888.
5 Enger v. Lofland, 100 la. 303; 69 N. W. 526; Bixler v. Sellman, 77 Md. 494; 27 Atl. 137.
6 Frailey v. Thompson (Ky.), 49 S. W. 13; O'Connor v. Beckwith, 41 Mich. 657; 3 N. W. 166; Johanke v. Schmidt, 79 Minn. 261; 82 N. W. 582; Jackson v. Jackson. 96 Va. 165; 31 S. E. 78; Harris v. Orr, 46
W. Va. 261; 76 Am. St. "Rep. 815; 33 S. E. 257.
7 Harris v. Orr. 46 W. Va. 261; 76 Am. St. Rep. 815; 33 S. E. 2.17.
8 Platt v. Durst, 42 W. Va. 63; 32 L. R. A. 404; 24 S. E. 580.
9 Ellis v. Cary, 74 Wis. 176; 17 Am. St. Rep. 125; 4 L. R. A. 55; 42 N. W. 252.
10 Ellis v. Cary. 74 Wis. 176; 17 Am. St. Rep. 125; 4 L. R. A. 55; 42 N. W. 252.
11Jessup v. Jessup, 17 Ind. App. 177; 46 N. E. 550.
12 Schwab v. Pierro, 43 Minn. 520; 46 N. W. 71.
13Johanke v. Schmidt, 79 Minn. 261; 82 N. W. 582.
14 Hudson v. Hudson, 90 Ga. 581; 16 S. E. 349; s. c, 87 Ga. 678; 27 Am. St. Rep. 270; 13 S. E. 583.
15 Walker v. Walker, 100 la. 99; 69 N. W. 517; reversing on rehearing, 63 N. W. 331.
16Murrell v. Studstill. 104 Ga. 604; 30 S. E. 750; Neish v. Gannon, 198 III. 219; 64 N. E. 1000; Warren v. Warren, 105 111. 568; Morton v. Rainey. 82 111. 215; 25 Am. Rep. 311; Jones v. Adams. 81 111. App. 183; Collins v. Williams, 21 Ind. App. 227; 52 N. E. 92; Rid-ler v. Ridler, 103 la. 470; 72 N. W. 671; Gorrell v. Taylor, 107 Tenn. 568; 64 S. W. 888; Westcott v. Westcott, 69 Vt. 234; 39 Atl. 199;