The opinion of the court was delivered by
Ross, J.The only doubt we have had in regard to the correctness of the judgment of the court below, is occasioned by that clause in the auditor’s report in which he states: “ From the facts and circumstances above stated, I find that it was not the expectation of either party when the plaintiff commenced her services for the intestate, nor at any time previous to his death, that he was to pay her wages for her services, or that she was to account for the money received by or expended for her, or for any articles received by her, or procured on his account.” If the plaintiff could have been a witness in her own behalf, and had admitted that such was her expectation, it would have furnished a complete answer to her claim against the estate. The law, when no express promise is shown to pay for services, never raises or implies a promise to pay for such services, contrary to the expectation of the parties as it existed at the time the services were performed. If this finding by the auditor is to be regarded as an inference drawn wholly from the facts and circumstances before stated by him, without the existence of any other facts or circumstances in the case to influence him in making such finding, we are all agreed that it is not warranted by the facts and circumstances stated by him, and might be disregarded by the county court in rendering its judgment. We are inclined to think it is capable of receiving this construction. The auditor says : “ From the facts and circumstances above stated, I find,” &c., thereby limiting-*577his finding to an inference from- the facts and circumstances stated by him. Immediately following this finding, the auditor further says: “ If, however, I have erred in any matter of -law- in this case,” there is due the plaintiff, &c. The finding of-a fact by the auditor is, usually, conclusive of its existence upon the -county court. If, however, -the fact found is merely an inference, or - a fact which the law would infer from other facts found and stated by the auditor, and the auditor has made a mistake in the law, as applicable to the facts stated by him, and so erroneously inferred a fact to exist, the county court may disregard the finding of the auditor, and make such an inference as the law would warrant from the facts stated, and render judgment accordingly. The- decision and judgment of the county court must stand,' unless error is made to appear. We think from the explicit statement of the auditor that he found that the plaintiff did not expect pay for her services from the facts and circumstances stated by -himj the county court was justified in disregarding that fact .in rendering its judgment, if the law would not warrant the finding of such fact from the facts and circumstances stated by the auditor. We think the law does not justify the auditor in inferring ■ that the plaintiff did not expect pay for her services, from the facts and circumstances stated by him. In ail the cases in which it has been held that the law will not imply a promise to pay for valuable services rendered with the knowledge of the recipient, such a relation has existed between the parties before the rendering-of-the services, that the defendant was not bound to pay for the services-. This relation is usually that of parent and child. When the child arrives at majority, but remains with or returns to the parent, or when the parent goes to live with the child, the law presumes the parties have retained or returned to the relation that once existed between them, and will not presume that they thereby assumed the relation of debtor and creditor, unless it is shown that they mutually understood that they came together with their relation changed from what it formerly had been, to that of debtor and creditor. In all the cases cited by the defendant’s counsel, the relation of parent and child had once existed between the-parties. We are not aware of any decided cases in which it is held that *578the law will not imply that the relation of debtor and creditor exists, where one labors for another with his knowledge and approval, except in cases where the parties, at some time previous to the rendition of the services for which payment is demanded, have stood in such a relation to each other that the rendition of such services by the plaintiff did not make the defendant his debtor. We do not say such a relation might not exist between brother and sister. It might. The brother might have brought up the sister, and so stood to her in the double relation of brother and parent; or they might have been bereft of their parents when minors, and continued the family relation till of age. If in such case the brother continued to live upon the homestead, and the sister, after having been away, returned to live with him, we think the law might presume she returned to the relation she once had with her brother, and, by rendering him services, might not make him her debtor, unless they were rendered under such circumstances as to.show she expected to receive pay for her services. It is evident that the auditor had the impression that the fact that the plaintiff and intestate were blood relatives, rendered it necessary for her to show an express promise, or what in law would amount to an express promise, by the intestate to pay for plaintiff’s services. It is true that the relation, a return to which would not raise the presumption of debtor and creditor between the parties, generally exists between blood relatives, but not always. It has been held to exist between foster-child and foster-parent.' Relation by blood, or the family relation, does not rebut the ordinary presumption that valuable services are to be compensated; but the fact that the parties have once so stood related to each other that the one rendering services could not exact payment therefor of the other. In the case at bar, it does not appear that the plaintiff, by remaining with the intestate after his daughter’s decease, resumed a relation which had once existed between them, in which the performance by her of valuable services for him, with his knowledge and approval, did not place him under obligation to make compensation. The law will not presume that such a relation once existed between them, simply because they were brother and sister. The case finds that the plaintiff never had, up to the *579time of his daughter’s decease, made the intestate’s house her home. She then took upon herself the charge of his house with his knowledge and approval, and rendered him valuable services, which the law implies a promise to make reasonable compensation for. From the fact they were brother and sister, they might have had more confidence in each other, and not have dealt with each other with the exactness either of them would have done with a stranger. The time she rendered him service, was well known, as probably was what, he had paid for her. The latter we infer from the entries found to exist in .his cash-book, and from the memoranda of expenses paid for her when she was sick, and especially of what he paid the doctors, as well as the fact that she usually brought him a bill of what things she obtained for herself on his credit. Though neither party had any formal book account against the other, they, between them, had sufficient data to enable them to settle at any time. We have no doubt from the facts stated, if the plaintiff had left the intestate’s employment (for we cannot consider it in any other light) during his life,' the parties would amicably have settled, and he would have compensated her reasonably for her services for him, and that such ,was their mutual expectation during the time of service. We have no doubt but the auditor would have come to the same conclusion, had it not been that he labored under the impression that, because the plaintiff was sister to the intestate, therefore what would in law amount to an express promise to pay for her services, must be shown, to enable her to- recover,
Judgment affirmed.