(after stating the facts.) 1. The appellee testified in his own behalf as to the services he performed in nursing his father. The testimony of appellee related to transactions had with the intestate by which appellee attempts to recover upon the strength of a contract, express or implied, to pay for such services. The suit is against the administrator, and under section 2 of the Schedule of the Constitution and the decision of this court in Cash v. Kirkham, 67 Ark. 318, the testimony was improper. See also Jarvis v. Andrews, 80 Ark. 277; Wilson v. Edwards, 79 Ark. 69; Miller v. Jones, 32 Ark. 337.
2. The court declared the law of this case in instruction number one given at the request of appellee. But the court erred in giving instruction number two requested by appellee; also in modifying requests for instructions numbered eight and ten, asked by appellant, by adding the word “ordinary” before the words “domestic service.” Under the second instruction, if the services were found by the jury to be extraordinary, the law raised, ipso facto, an obligation on the part of the appellee’s father to pay for same. It does not follow as matter of law that there is an implied contract or obligation on the part of the parent to .pay because the child rendered extraordinary services. Such services, where proved, may be considered by the jury in determining the question as to whether there was an implied contract for compensation. But the question is still one for the jury, even if there were extraordinary services. The question is one of fact, hot of law. In Smith v. Meyers, 19 Mo. 433, it is said: “In all such cases it will be a question for the jury, taking into consideration the nature and degree of the relationship, circumstances in life of the parties, and other matters which may affect it, whether there was any implied contract for compensation.” Hart v. Hart, 41 Mo. 441.
Prayer for instruction number eight declared the law without the modification by the court, and this modification was improper, and rendered the instruction as given erroneous. Likewise the modification to instruction number ten. These instructions, taken together, told the jury in effect that in case of ordinary domestic services rendered the father by his child there is no presumption that the child is to receive pay for such services, and that the burden of proof in such cases is on the child claiming remuneration for such services to show a contract, express or implied, for compensation before he can recover. But that this burden is discharged when the child shows a state of facts from which a contract is necessarily implied. The converse of the proposition which follows by adding the word ordinary before the words “domestic services,” is that where the domestic services are “extraordinary” the presumption is overcome. The plain purport of these instructions, when taken in connection with instruction number two supra, was to tell the jury that appellee had met the burden of proof as to contract for compensation if he had shown extraordinary domestic services rendered his father, and that if the jury found that such services had been rendered the law implied an obligation upon the part of the father to pay for same. The instructions did not declare the law applicable to the facts, and were erroneous and misleading. The' words “extraordinary” and “ordinary”' should have been omitted from the court’s charge.
In Hogg v. Laster, 56 Ark. 385, this court quoted from the Supreme Court of Massachusetts, where Chief Justice Shaw, speaking for the court, said: “That it would be quite competent for the jury to infer a promise from all the circumstances of the case; and that, although the burden of proof is upon the plaintiff, as in other cases, to show an implied promise, the jury ought to be instructed that if, under all the circumstances of the case, the services were of such a nature as to lead to a reasonable belief that it was the understanding of the parties that pecuniary compensation should be made for them, then'the jury should'find an implied promise and a quantum méruit; but, if otherwise, 'then they should' find that there is no implied promise.” Guild v. Guild, 15 Pick. 130.
The second instruction given at the instance of appellee was also misleading in that it allowed the jury to consider the question of the acceptance of the services by appellee’s fáther in determining whether or not there was an implied contract.
The presumption is that services rendered by members of the same family, and especially between father and son, are gratuitous. Such services are enjoined by the reciprocal duties of the family relation, and are always presumed to have been prompted by natural love, rather than by the promise or the hope of pecuniary reward. “Courts are reluctant to infer a pecuniary recompense from the performance’ of filial or parental duties such as humanity enjoins.” Hence the burden is upon him who claims a money recompense for personal services performed, whether voluntarily, or upon the request of the other, to establish a contract, expressed*or implied, for such consideration. Page on Cont. p. 1183, § 788; Schouler, Dom. Rel., § 269; Rodgers on Dom. Rel., § 483; 1 Beach on Contracts, § 655; Reynolds v. Reynolds, 92 Ky. 556; Zimmerman v. Zimmerman, 129 Pa. 229; In re Kirkpatrick’s Estate, 34 S. C. 255. See also Lewis v. Lewis, 75 Ark. 191. The court did not err in refusing prayers for instructions relating to the partition of the lands of R. E. Walden in the chancery court. That matter was not germane to the issue here.
We find no reversible error in the rulings of the court upon other assignments of error in the motion for new trial. But for those indicated the judgment is reversed, and the cause is remanded for new trial.