P. H. and Mary A. Barnhill v. A. W. Kirk, Adm'r, 44 Tex. 589

Reeves, Associate Justice. This suit was brought by the appellants to establish a claim against the estate of S. C. Kirk, deceased, for the sum of $743.50, for board and services rendered the deceased in her lifetime. The account attached to the petition shows the character and kind of the services so rendered. It does not appear on what ground the administrator rejected the claim.

He avers in his answer to the petition that his intestate furnished and contributed to the plaintiffs, (appellants,) during the period of her residence with them, her services, means, and provisions, more than sufficient to compensate them for any outlay on her behalf, and that in consideration of such contributions they promised to make no charge against her, but to regard her as one of the family; and further, that his intestate was the daughter of the plaintiff, Mrs. Mary A. Barnhill, and, as such, was a member of the family.

On the trial the appellants’ counsel introduced one of the appellants to prove the account sued on, to which appellee’s counsel objected, on the ground that they proposed to prove transactions that accrued between them and the deceased in her lifetime. They further proposed to prove by one of the appellants that they had paid for the medicines as prescribed by the physician who attended the deceased in her sickness, as charged in their account. This evidence was also objected to by appellee, and the court sustained both objections and refused to allow the plaintiff to testify. In this there was no error.

The statute provides that neither party shall be allowed to testify against the other as to any transaction with or statement by the testator, intestate, or ward, unless called to testify thereto by the opposite party or required to testify thereto by the court. (Paschal’s Dig., art. 6827.) It appears from the evidence that Mrs. Kirk, formerly Mrs. Parrott, was the daughter of Mrs. Barnhill and stepdaughter of P. H. Barnhill, the plaintiffs in this suit.

One of the witnesses stated that she came to live with the plaintiffs in June, 1871, and left them on her second marriage, in December, 1872; that she had two children when she came to plaintiffs’ house—one of the children died at plaintiffs’, the other died in Burleson county. The witnesses speak of the house of the plaintiffs as being the home of Mrs. Kirk, and that she was treated as a member of their family. The circumstances under which she first went to live with the plaintiffs, or, after having left, returned the second time, were not clearly shown in evidence.

The tendency of the evidence was to show that she came to the plaintiffs’ house at their instance, or at least it does not appear that she sought it of her own accord. P. H. Barnhill brought her to his and her mother’s home on both occasions, and bringing with her a small store of family supplies and her furniture, without solicitation on her part, so far as can be known from the evidence.

On the death of her husband, leaving her a widow, with two children, sick and helpless, it might be expected that her mother would offer her a home without any expectation on either side of pecuniary reward for parental care and attention.

The plaintiffs were under no legal obligation to render the services, but having done so, it will not be implied that such services were to be paid for by the daughter without proof of a contract, or proof of such facts as would warrant the inference that the relation between the parties was that of debtor and creditor, and not the relation of parent and child, and was so understood by the parties at the time. (Hayne’s Adm’r, v. Waggoner, 25 Ind., 174; Williams v. Hutchinson, 5 Barb., 122; Miller v. Miller, 16 Ill., 296; Hall v.

Finch, Adm’r, 29 Wis., 278.) The charge of the court limiting the plaintiffs to proof of an express contract to recover on the account was not strictly correct. An implied promise may be shown by proof of facts and circumstances which show that both parties intended that the services should be paid for.

The instructions sought by the plaintiffs were erroneous, in asking the court to charge that a promise to pay was implied by law if the plaintiffs rendered the services, without directing the attention of the jury to the relation the parties sustained to each other ; and was also erroneous in placing the burden of proof on the defendant to show that the services were gratuitously bestowed, if such was the intention of the parties. In reference to the facts of the case, the error in the charge of the court was not material.

The facts warranted the jury in coming to the conclusion that it was not intended by the parties that the deceased should pay for the services; and the verdict being right, it ought not to be disturbed. Affirmed.