The presumption of an expectation of payment does not arise when services are rendered by one member of a family to another member, and in such a case it is necessary for the plaintiff to prove affirmatively that the services were rendered not as a gratuity but in reliance upon a supposed contract right to compensation:
Disbrow v. Durand, 1892, 54 N. J. L. 343; 24 Atl. 545: McGill, Ch. (p. 345): " Ordinarily, where services are rendered and voluntarily accepted, the law will imply a promise on the part of the recipient to pay for them; but where the services are rendered by members of a family, living as one household, to each other, there will be no such implication, from the mere rendition and acceptance of the services. In order to recover for the services, the plaintiff must affirmatively show either that an express contract for the remuneration existed, or that the circumstances under which the services were rendered were such as exhibit a reasonable and proper expectation that there would be compensation. The reason of this exception to the ordinary rule is that the household family relationship is presumed to abound in reciprocal acts of kindness and good will, which tend to the mutual comfort and convenience of the members of the family, and are gratuitously performed; and, where that relationship appears, the ordinary implication of a promise to pay for services does not arise, because the presumption which supports such implication is nullified by the presumption that between members of a household services are gratuitously rendered. The proof of the services, and, as well, of the family relation, leaves the case in equipoise, from which the plaintiff must remove it or fail. The great majority of cases in which this exception to the ordinary rule has been given effect have been between children and their parents, or the representatives of the parents' estate; and that fact appears to have led the courts of some of our sister states to speak of it as restricted to cases where such a relationship in blood existed ; but it is not perceived how, within the reason for the exception, it is to be limited to mere propinquity of kindred. It rests upon the idea of the mutual dependence of those who are members of one immediate family, and such a family may exist, though composed of remote relations, and even of persons between whom there is no tie of blood." 1
1 See De Cesare v. Flauraud, 1902, 69 App. Div. 299; 74 N. Y. Supp. 593, (services as barber).
2 Van Buren v. Reformed Church, 1872, 62 Barb. (N. Y.) 495, (services as organist in village church).
This exception to the general rule, as explained in the opinion just quoted, rests upon the family relationship, rather than that of consanguinity or affinity, and includes the cases of services rendered by an adopted member of a household,1 by a visitor,2 or by a concubine.3 Apparently it does not cover the case of services rendered by one who, though a near blood relative, is not living under the defendant's roof.4
1 Accord: Hogg v. Laster, 1892, 56 Ark. 382; 19 S. W. 975, (foster child); Friermuth v. Friermuth, 1873, 46 Cal. 42, (son); Walker v. Taylor, 1901, 28 Colo. 233; 64 Pac. 192, (foster child); Hudson v. Hudson, 1892, 90 Ga. 581; 16 S. E. 349, (son); Freeman v. Freeman, 1872, 65 111. 106, (son); Collar v. Patterson, 1891, 137 111. 403 ; 27 N. E. 604, (niece by marriage); Niesh v. Gannon, 1902, 198 111. 219 ; 64 N. E. 1000, (niece); Hill v. Hill, 1889, 121 Ind. 255; 23 N. E. 87, (brother-in-law) ; McGarvey v. Roods, 1887, 73 la. 363; 35 N. W. 488, (daughter); Wyley v. Bull, 1889, 41 Kan. 206; 20 Pac. 855, (foster child); Marple v. Morse, 1902, 180 Mass. 508; 62 N. E. 966, (mother); Harris v. Smith, 1889, 79 Mich. 54; 44 N. W. 169; 6 L. R. A. 702, (stepdaughter); Guenther v. Birkicht's Admr., 1856, 22 Mo. 439, (stepson); Lillard v. Wilson, 1903, 178 Mo. 145; 77 S. W. 74, (parents); Bell v. Rice, 1897, 50 Neb. 547; 70 N. W. 25, (stepfather); Disbrow v. Durand, 1892, 54 N. J. L. 343; 24 Atl. 545, (sister); Carpenter v. Weller, 1878, 15 Hun (N. Y. Sup. Ct.) 134, (sister); Stallings v. Ellis, 1904, 136 N. C. 69; 48 S. E. 548, (father); Mosteller's Appeal, 1858, 30 Pa. St. 473, (son); Houck's Executors v. Houck, 1882, 99 Pa. St. 552, (daughter); Dash v. Inabinet, 1898, 53 S. C. 382; 31 S. E. 297, (daughter); Gorrell v. Taylor, 1901, 107 Tenn. 568; 64 S. W. 888, (son-in-law); Andrus v. Foster, 1845, 17 Vt. 556, (foster child); Jackson's Admr. v. Jackson, 1898, 96 Va. 165; 31 S. E. 78, (grandson); Cann v. Cann, 1894, 40 W. Va. 138; 20 S. E. 910, (son); Bostwick v. Bostwick, 1888, 71 Wis. 273; 37 N. W. 405, (parents). But see In re Bishop's Estate, 1906, 130 la. 250; 106 N. W. 637, (father resided with widowed daughter; no presumption here of gratutity from family relation); Dance's Admr. v. Magruder, 1904, 26 Ky. L. Rep. 220; 80 S. W. 1120, (brother and sister: burden of proof on defendant to show that services consisting of nursing and washing clothes rendered gratuitously); Houser v. Sain, 1876, 74 N. C. 552, (grandfather and granddaughter).