This is a second appeal from a verdict and judgment against the defendant for 612 days’ board and lodging at $1 a day. The board w:as furnished to Johan Krapp, deceased, the father-in-law of the plaintiff, and the defense is that because of the relationship the deceased should have been given free board, unless he expressly promised to pay for it. The first verdict and judgment was set aside and a new *762trial granted, because the court had told the jury that an implied contract resulted from furnishing board and lodging. Krapp v. Krapp, 181 N. W. 951. This court correctly held that as between relations an implied contract does not arise from common hospitalities in furnishing board and lodging. The presumptions of law are presumed to be founded on reason and common sense. The general rule is that a child is always welcome to the home of the parent and a parent to the home of a child, and in such cases the law does not imply a contract to pay. Custom makes the rules of law and the presumptions, and, when the reason of the rule ceases, so does the rule itself. This court has held that the reason of the rule ceases in the case of board and lodging of a menial character. Bergerson v. Mattern, 41 N. D. 404, 170 N. W. 877. And so the reason of the rule ceases when it appears that the ties of affection no longer exist and when, as in this case, it appears that the “old man” is rich and his children poor, when the “old man” sues his son, and makes him pay interest on money loaned, and treats him as a stranger, and when the “old man” dies, leaving $15,000 to one son and only $5 to the son who is the husband of the plaintiff. When a father treats his son in that manner, the law does not presume that the son or son’s wife will give him free board, lodging, and washing.
The evidence clearly show£ that the parties lived and treated each other as strangers, and on that showing the rules of law are the same as those which pertain to strangers. Hence, on the evidence given at the second trial, the plaintiff was entitled to recover on an implied promise; but that is of little consequence, because the jury was instructed that the plaintiff can only recover on an express contract to pay for the board and lodging, and the evidence does well sustain an express contract. J. L. Krapp testifies that the deceased said he would pay his board. He said he had,paid $1 a day in Iowa, and that he would pay her (the plaintiff) $1 a day, and she agreed to that. That was about 10 days after he commenced boarding, and of course the agreement applied to the past as well as the present. And so Regina Krapp testified -that at several times he spoke of paying his board. He said that, when his son paid him in full, he would pay his board money; and so he told the hired man that he was paying his board.
It is vain to urge that the express contract applied only to the first nine months. When a contract to pay for board and lodging is proven, the presumption is that it continues as long as the boarding continues. *763The interruption of a few days, or a month, is of no consequence. The evidence does well sustain the express contract, as well as an implied contract. The defendant had no right to compel the plaintiff to elect between such contracts. But he cannot complain of a decision which was made on his own motion, and it was altogether in his favor. In actions of this kind the plaintiff may be entitled to recover on an express contract, and also on an implied contract, or on either one, as proven by the evidence. In such a case it would be a strange and bungling practice for a party to sue on an express contract^ and then, in case of defeat, to bring a second action on an implied contract, to be met with the objection that the first action was a bar to the second. The defendant has had a fair trial, and the verdict is well sustained by the evidence.
Affirmed.