The common pleas court, at the conclusion of the evidence offered by Kathryn Baker, plaintiff in error, hereinafter called plaintiff, directed the jury to return a verdict in favor of the defendants in error, Charles Kimball and others, hereinafter referred to as defendants. Plaintiff prosecutes these proceedings in error to reverse the judgment entered by the court upon the verdict so returned.
The amended petition of plaintiff contained two causes of action; the plaintiff electing at the trial to proceed upon the issues made in the first of these, wherein it is alleged that an express contract was made between plaintiff and defendants, whereby plaintiff agreed to remain with and care for Elizabeth Kimball, the mother of defendants, defendants agreeing to pay to plaintiff the reasonable value of such services.
When plaintiff was 13 years old, she was an inmate of a Wood county orphanage, from which she was taken by Mrs. Kimball into her home. Plaintiff was not adopted by Mrs. Kimball, but continued to reside at her home during her lifetime. The defendant Charles Kimball, a butcher by occupation, was then residing with and continued to reside with his mother while she lived. The defendant Mary Ethel Cook was then married, and was then living, and continued to live, with her husband in a separate household. Plaintiff was clothed and sent to school by Mrs. Kimball, and in return therefor did such work in and about the home as there was, or as she was directed to do. She became 18 years of age in 1918.
There is some evidence that Mrs. Kimball was lame, because of a broken leg, and had been somewhat *Page 147 ill prior to April, 1919, but on April 3d of that year she suffered a stroke of paralysis, and from that time to February 2, 1923, when she died, required more or less constant attention. The plaintiff testified, in substance, that she told both defendants, prior to April 3, 1919, that the work was too heavy for her, and that she wanted to leave and become a nurse, and that each of the defendants asked her to stay, and said that, if she would remain, she would be well repaid; that, after the paralysis of Mrs. Kimball, she had several similar conversations with both of the defendants, some when the defendants were together, and some with them separately; that on one occasion Mrs. Cook said "she had rheumatism and was sickly herself and couldn't stay and take care of her mother," and asked plaintiff to stay, saying she would be well repaid if she did; that the defendant Charles Kimball said to her that, if she would remain "and take care of things and take care of his mother," she would be well repaid; that about a year later she was talking to both of the defendants about money; that they gave her a little, and said that when Charlie sold the farm she would be paid. The plaintiff testified as to other conversations of similar purport, which she claims to have had with the defendants.
We are of the opinion that the evidence tends to prove the contract alleged by plaintiff, and that the trial court erred in directing a verdict for the defendants. Considered in her relation to Mrs. Kimball and to the defendant Charles Kimball, plaintiff was a member of the family, all of them residing together, but she bore no such relation to Mrs. Cook, who resided with her husband and *Page 148 family in a home of her own. The defendants had a natural interest in having their mother properly cared for, and were privileged to contract with respect thereto if they so saw fit.
Plaintiff was under no legal obligation to give this care, and, regardless of whatever, if any, moral obligations she may have been under, told defendants, if her testimony is to be believed, that she would not remain longer with Mrs. Kimball. As the evidence stands in the record, defendants evidently believed she intended leaving, and this belief was the basis of the conversations had between them. If the jury were to find that such was the mutual expectation and intention of the parties, then plaintiff would be entitled to a verdict in her favor for the reasonable value of her services as shown by the evidence. The parties to the alleged contract were the plaintiff and the defendants; the subject-matter of the contract was the care of Mrs. Kimball. If the plaintiff refrained from leaving the home of Mrs. Kimball, as she claims, and continued to remain and care for Mrs. Kimball because of what she claims was said and done by the defendants, and both the plaintiff and the defendants so understood and intended, then there was a valid consideration for the alleged contract.
For the reasons given, the judgment of the common pleas court is reversed, and the cause remanded to that court for further proceedings according to law.
Judgment reversed and cause remanded.
RICHARDS and WILLIAMS, JJ., concur. *Page 149