#### Oates, Respondent, vs. Erskine’s Estate, Appellant.

*January 16*

February *3, 1903.*

*Estates of decedents: Claims: Express contract: Evidence: Instructions to jury.*

1. An action against the estate of a decedent for hoard was based on an express contract. The claimant and decedent were not relatives. The court instructed the jury, that “it is not absolutely necessary to the establishment of an express contract' that the witnesses should be produced who were present when the contract was made. It may be inferred from circumstances-established to the satisfaction of the jury as true by the evidence, if from such facts and circumstances the jury are convinced that the express contract claimed was in fact made.” *Held,*that no error was thereby committed, as the rule that an express contract for board or service can only be established by direct and positive evidence, or by circumstantial evidence’ equivalent to direct and positive evidence, only applies where-the parties are near relatives. *Tyler v. Burrington,*39 Wis. 376, and *Wells v. Perlcins,*43 Wis. 160, distinguished.

2. In an action on an express contract the defendant is not prejudiced by correct instructions as to implied contracts, the jury having been expressly charged that there can be no recovery on an implied contract. Such instructions amount to a warning to the jury, fairly tending to warn them against the error-of bringing in a verdict based on an implied agreement, in case an express contract was not shown to their satisfaction.

Appeal from a judgment of the circuit court for Iowax county: Geo. Clementsoe, Circuit Judge.

*Affirmed.*

*587This is a claim against an estate to recover the reasonable-value of several years’ board furnished to the intestate in her lifetime. It appeared that the deceased, who was an unmarried woman, began boarding with the plaintiff at Ohicago-Eebruary 1, 1887, and continued to board there until November 15, 1893; that such board was reasonably worth the-sum of $4 per week, and that no part of it was ever paid for also that there was no relationship of any. kind between the-parties. The plaintiff claimed that at the time the deceased commenced to board with her it was agreed that the board should be paid for when William Walker, an uncle of the-deceased (seventy years of age), should die, and the deceased come into possession of his estate, as she expected to do. The answer denied the making of this contract, and pleaded the-statute of limitations. The evidence showed that William Walker died May 25, 1899, leaving his property to said Sarah Erskine, who died February 3, 1900, while the estate of William Walker was being administered. The principal contest upon the trial was upon the question whether the express contract above mentioned was ever made. The only direct evidence upon the subject was the testimony of the-plaintiff’s father, who testified, in substance, that when the-deceased came to board with the plaintiff it was understood that she expected to receive a large portion of the estate of her uncle, William Walker, and that she then said that when she came into possession of that property she would make the-board all right. There was also testimony by other witnesses of conversations held with the deceased at various-times, in which she stated that she intended to pay the plaintiff, or that she proposed to give her $1,000, or that some day she would be able to pay the plaintiff, and words of similar-import. On the part of the defendant there was testimony showing that the deceased received $5,000 in property and money from the estate of an uncle in 1888 and 1889. The-death of William Walker, leaving an estate of $10,000 to the *588deceased, in May, 1899, was admitted, and it was shown that the deceased took immediate possession of said estate, and made some loans therefrom; also that she made two or three ■small loans to the plaintiff’s father and brother while she was living with the plaintiff. The court, upon defendants’ motion, instructed the jury to the effect that the burden of proof to establish the contract claimed was on the plaintiff, and that payment might be inferred from facts proven to their satisfaction, and that it is not necessary that payment be proven by receipt or instrument in writing. In connection with this instruction the court further charged the jury that:

“It is not absolutely necessary to the establishment of an «express contract that witnesses should be produced who were present when the contract was made. It may be inferred from facts and circumstances established to the satisfaction -of the jury as true by the evidence, if, from such facts and ■circumstances, the jury are convinced that the express contract claimed by the plaintiff to have been made was in fact made.”

The court further, after stating plaintiff’s claim, charged the jury of its own motion as follows:

“(2) One who goes to board with another, whether anything is said about the price of board or not, is, by the law, .implied to agree to pay what his board is reasonably worth.

“(3) So, when Miss Erskine went to board with the plaintiff, the law would imply that she was bound to pay for her board what it was reasonably worth, from time to time, ■and the whole of what was due for board would be due and payable at once after she quit boarding with the plaintiff. "What I have just stated you will understand to refer only to •the supposed case that there was no agreement made between the plaintiff and Miss Erskine regarding her boarding and the time when the amount owing for her board was to be paid.

“(4) The plaintiff can recover nothing in this action upon ■an implied contract, for the reason that, as I have stated, ■upon such a contract all the indebtedness for board would be ■due and collectible on November 16, 1893, the day after she *589left finally as a boarder tbe borne of tbe plaintiff, and tbe six-years statute of limitations would begin to run against the-plaintiff’s claim upon that day, and on November 16, 1899,. tbe claim would be barred, and be noncollectible against Miss-Ersldne; and ber estate, after ber death, would not be liable-for it.

“(5) Wbat I bave said in reference to tbe law of implied'' contract, I bave thought it best to say for your information,, although tbe plaintiff does not seek to recover in this actiom upon an implied contract.

“(6) Tbe plaintiff bases ber claim upon an express contract.

“(Y) Tbe contention of tbe plaintiff is that, when Miss-Erskine began to board at ber home, or about that time, she-made known tbe fact that she was, or expected to be, tbe heir or tbe devisee of ber uncle, William-Walker, when be died, and that it was then understood and agreed between the-plaintiff and ber that she would board at the plaintiff’s home, and pay the plaintiff wbat was coming to ber for such board,, when ber uncle died, and she came into bis property.

“(8) If you are convinced by tbe preponderance of the-evidence, taking into careful consideration all tbe facts and' circumstances established by it, that tbe contention of the-plaintiff as set forth in tbe last paragraph is true, and if you. are also convinced that tbe board aforesaid has not been paid for, your verdict should be in favor of the plaintiff for such a sum as you are convinced by tbe evidence was tbe reasonable-amount due to tbe plaintiff under express contract for the-board of Miss Erskine on the 16th day of October, 1900, the-date of tbe filing tbe plaintiff’s claim in tbe county court,, with interest thereon from tbe date last mentioned to to-day at six per cent.

“(9) If you are not convinced that there was such an express contract between tbe plaintiff and Miss Erskine as is set forth in tbe foregoing paragraph No. Y, your verdict will' be for tbe defendant.

“(10) Also, if you find that all that was due tbe plaintiff’ for board was paid by Miss Erskine in ber lifetime, your-verdict will be for tbe defendant. I bave instructed you already that tbe burden of proof is upon tbe plaintiff to convince you that tbe agreement for tbe payment for tbe board as*590-set forth in the seventh paragraph of my instructions was made, but I omitted to instruct yon, as the law requires, and as I now do, that the burden is upon the defendant to con-wince you that the board was paid for. In other words, one ■who claims that a debt he owes has been paid must prove it.”

The jury returned a verdict for the plaintiff for $1,479.33. A motion to set aside the verdict and for a new trial was made and overruled, and from judgment upon the verdict the ■defendant appeals.

For the appellant there was. a brief by *J. M. Smith*and *.Spensley & McIThon,*and oral argument by *Calvert Spensley.*

For the respondent there was a brief'by *Fiedler &*Fiedler, ;and oral argument by *F. C. Fiedler.*

WiNsnow, J.

The defendant’s most important contention -is that the court made fatal errors in instructing the jury as -to the proof necessary to establish the making of the express ■contract alleged. What the court said upon this point was as follows:

> “It is not absolutely necessary to the establishment of an ^express contract that witnesses should be produced who were present when the contract was made. It may be inferred from facts and circumstances established to the satisfaction of the jury as true by the evidence, if from such facts and circumstances the jury are convinced that the express contract -claimed by the plaintiff to have been made was in fact made.”

The defendant claims that the same rule of evidence applies in this case as would apply had the parties been near relatives, namely, that such an express contract “can only be •established by direct or positive evidence, or by circumstantial evidence equivalent to direct and positive.” *Tyler v. Burrington,*39 Wis. 376; *Wells v. Perkins,*43 Wis. 160. The idea is plainly erroneous. The very stringent rule above -cited is a special and exceptional rule, which has been laid down by the courts in cases of services rendered or board rfurnished by one near relative to another, because in such *591cases no contract to pay for them can be implied; but, on the other hand, there is a positive presumption that the services or board were intended to be gratuitous. To meet this presumption, and guard against the possibility of the implication of a contract by the jury in such cases, it was deemed that the exceptional rule above stated should be applied. In the absence of such relationship, however, as in the present case, there is no presumption to be overcome, and an express Contract may be shown by proof of independent facts and circumstances which convince the jury that the contract was in fact made, just as any other fact in issue may be proven by such evidence. This was, in substance, what the court charged the jury in the present case, and there was, therefore, no error.

The defendant also claims that the trial court erred in giving any charge to the jury on the subject of implied contract, for the reason that there could be no recovery in the case on an implied contract to pay because it would be barred by the statute of limitations; hence the question was not in the case and instructions thereon were liable to confuse the jury. The law, as stated by the court, was certainly correctly stated; and, while there was no recovery sought on implied contract, we think the instructions were entirely proper for the information of the jury in order that they might more fully appreciate the situation of the parties. The court expressly told the jury that there could be no recovery on such a contract, and that the express contract alleged must be proven, in order to entitle the plaintiff to recover. That part of the charge pertaining to this subject, when taken together, amounts rather to a warning to the jury, fairly fending to guard them against the very natural error of thinking that they might find a verdict based on an implied agreement in case the express _ contract was not shown.

The remaining contentions made by the appellant are all embraced in the claim that the evidence submitted was in*592sufficient to prove tbe express contract alleged. We shall not review tbe evidence. It must be enough to say that, in our judgment, it was sufficient.

*By the Court.*— Judgment affirmed.