* This cause was decided at the last term of this Court at Morganton, but was omitted from the report of that term accidentally. The plaintiff declared for work and labor done; he was the illegitimate son of a daughter of the defendant's testator, and the mother and son had both lived in the family of the testator's from the birth of the plaintiff, to the time of the testator's death, at which time the plaintiff was fifteen years old.
It appeared in evidence that the defendant's testator boarded and schooled the plaintiff; that the schooling was mostly in the winter season; that, after he became able to labor, he worked on the farm, assisted in getting wood, and taking care of stock when not employed in school, and that the testator spoke of him as a good boy, saying at the same time that he would do something for him; that in April, 1848, the testator called on one of the witnesses and told him to draw a note for a hundred dollars, saying that he wished to give it to the plaintiff; that he was a good boy, and he would give him that for the services of that year; that the note was drawn and signed by the testator, but was not delivered, and was *Page 218 found among the testator's papers after his death. There was conflicting evidence as to the value of the plaintiff's services; some of the witnesses rating them as worth $150 a year, while others said they were worth nothing beyond his victuals and clothes. It was proved that his mother made his clothes, and he offered to prove that her services were worth his boarding, schooling, c., which evidence was objected to by the other side, and excluded by the Court, for which plaintiff excepted.
The Court charged the jury, that the law, under the circumstances, did not raise a promise on the part of the testator to pay the plaintiff for his services, and he could not recover upon an implied assumpsit; but, if they could collect from the testimony, that there was an understanding or engagement between the parties, that the testator was to pay the plaintiff for his services, he would be entitled to recover. Plaintiff excepted.
Verdict and judgment for the defendant. Appeal by the plaintiff. The evidence in support of the allegation of an express promise to pay for the plaintiff's work, was certainly very slight; and we incline to the opinion, that his Honor would have been justified in telling the jury, there was no evidence to support it. The facts, that the defendant's testator said the plaintiff was a "good boy," had a note for $100 drawn, saying "he wished to give it to him," for his services for that year, and afterwards signed the note and left it among his papers, without delivering it, have a tendency to show a contemplated gratuity in respect to the plaintiff's services, rather than a special undertaking to pay for them; consequently, the plaintiff has no right to complain of this part of the charge.
The fact that the mother of the plaintiff performed services in the family, equivalent to his board, schooling, c., had *Page 219 no legitimate bearing, and was properly rejected; it was calculated to mislead by serving the purpose of a "make-weight" in getting up an impression that the plaintiff's was a "hard case."
The question then is, under the circumstances of this case, did the law imply a promise to pay the plaintiff for his services?
When work is done for another, the law implies a promise to pay for it; this is the general rule; it is based on a presumption, growing out of the ordinary dealings of men. But an exception is made, whenever this presumption is rebutted by the relation of the parties. The case of a parent and child is an exception; also, that of a step-father and child;Hussey v. Roundtree, Busbee 111, "The step-father is not bound to support his step-children, nor they to render him any services; but if he maintain them, or they labor for him, they will be deemed to have dealt with eachother in the character of parent and child, and not as strangers." The same principle applies to a grand-father and child, when the one assumes to actin loco parentis.
In our case, this relation existed to all intents and purposes. The circumstance that the plaintiff was illegitimate, has no bearing on the application of the principle; the "old man," in the fullness of his affection, forgave the transgression of his daughter, and allowed her and her child "to live with him as members of his family up to his death." The relation of the parties rebuts the presumption of a special contract, and puts the idea, that he was to be paid for furnishing them a home, or they were to have "a price" for work and labor done, out of the question. In the language of RUFFIN, Judge, "Such claims ought to be frowned on by courts and juries. To sustain them, tends to change the character of our people, cool domestic regard, and in the place of confidence, sow jealousies in families;" Williams v. Barnes, 3 Dev. 349. In that case, a son, after he was twenty-one years of age, continued to live with his mother and act as overseer for her, and it was held by a majority of the court, that the relation of the parties was a circumstance that ought to have been left *Page 220 to the jury, as tending to rebut the presumption, that he was to be paid "a price" for his work. In this, the plaintiff had been raised and cared for as a son by his grand-father, and the relation, per se, rebuts the presumption of a promise to pay for his services, during his minority. There is no error.
PER CURIAM, Judgment affirmed.
NOTE: His Honor, the CHIEF JUSTICE, was prevented by sickness from attending the court during the greater part of this term, which accounts for the fact that so few opinions of his appear in this number. *Page 221