By the Court:
Grover, J.The court did not err in overruling the objection of defendant’s counsel to the introduction of the plaintiff as a witness in her own behalf. She was a competent witness in the cause, and it was proper for her to be sworn as such. The court, in overruling the objection, did not decide anything as to what testimony it was competent for the plaintiff'to give, but only that she should be sworn as a witness in the cause. There was no objection made to any testimony given by the witness, nor any ruling made by the court upon the competency of any part of it. No question upon that point can be entertained by this court.
There was evidence given tending to show that plaintiffs father had abandoned all claim to her services while a minor. He had consented to her going to live in the family of defendant’s testator when she was thirteen years old, and shortly after removed to Wisconsin, leaving the plaintiff in the family, and after she went there to live provided nothing for her, and took no care whatever of her (Steel agt. Dorr, 5 Wend., 205, and cases cited.)
The motion for a non-suit being predicated upon the right of the father to recover for the services of the plaintiff, there was no error committed by its denial.
The defendant’s counsel requested the court in substance, to instruct the jury that the plaintiff could not recover for the reason that she went to live with the testator as a member of hi ■ family, to be provided for, brought up, and educated as such, and that this relation continued during all the time services were rendered by her for the testator.
The court refused to give the instruction requested, and the defendant’s counsel excepted.
If the evidence was such that a verdict finding the facts different from those claimed by the counsel should be set aside as against evidence, the judge erred in refusing to instruct the jury as requested.
*408It has been repeatedly held by the court, that it was error to refuse to direct a verdict in cases when a finding contrary to the direction prayed for would be set aside.
That the law is as was claimed by the counsel in his request upon the facts stated by him, has been repeatedly held by the supreme court, and settled by the determination of this court (Williams agt. Hutehinson, 3 Coms., 312, and cases cited.)
The inquiry, therefore, is whether the evidence established the facts claimed by the defendant’s counsel, or whether there was such conflict as rendered it proper to submit the case to the jury.
John C. Bennett, a son of the testator, testified, that in the fall of the year, that plaintiff came to live in the family of the testator, her father came to his (testator’s) house, and while there had a conversation with testator as to plaintiff’s living there. That the testator stated to him the terms; that she was to live there until of age, and that he was to take care of her as a member of his family; to send her to school, and care for her as a child; that her father assented to the terms, and said that was as he understood it, and desired her to remain as a member of the family.
It was proved that the plaintiff was about thirteen years old when she went to live in the family, and that from that time the testator and his wife had the exclusive care of her, provided all her clothing, sent her to school as farmer’s daughters usually were sent, dressed her in similar style, and that upon her marriage she had a cow, bed and bedding and a box of clothing. That no accounts were ever kept by the testator with the plaintiff, or so far as appeared by the plaintiff with him. That the testator lived upward of four years after the plaintiff’s marriage, and after she left the family to reside with her husband, and that no claim against the testator for her services was made by the plaintiff' during his life,' and for some time after.
This proof was met by the plaintiff’s proof that at the *409time the testator took her from her aunt’s, with whom she was then living, to go and live with him, he said he would do well by her; and that he said to his neighbors several times while the plaintiff was living with him; that the plaintiff was a good girl to work; that he did not know how he could get along without her, and that he would pay her well; facts, I think quite, if not more consistent with the defendant’s theory than that of the plaintiff.
The evidence that plaintiff milked and sometimes drove the cows to and from pasture, a distance of about thirty rods, occasionally fed calves that the testator was raising and sometimes fed hogs, furnished no evidence that the testator expected to pay, or the plaintiff to receive wages as a servant to any mind acquainted with the services frequently performed by farmers’ daughters in the country.
The testator’s wife handing the plaintiff ten dollars about the time of her marriage, coupled with the remarks that she would pay her more, but that that was all she had then, was not evidence against the defendant, as there was no proof that the testator was present.
The testimony of plaintiff’s husband, that the testator let plaintiff have a heifer, and said she would make a good cow, and that he said he let her have the cow for twenty dollars, but she must pay for her' keeping, &c., was to my mind no more evidence of an understanding that plaintiff was at work for wages, and that the cow was delivered as partial payment, than it was of an existing demand of the testator against the plaintiff for the cow.
An examination of the testimony satisfies my mind that there was no evidence really in conflict with the strong proof of the defendant’s, tending to show that plaintiff lived with the testator, and was .provided and cared for by him and his wife as a member of the family, without any idea of paying or 1 eceiving wages otherwise, and that the judge erred in not instructing the jury as requested by the defendant.
*410The judgment should therefore, be reversed, and a new trial ordered, costs to abide event.