I find error commanding reversal.
Plaintiff presented a claim for 30 years' services as a farm hand at an agreed price of $20 per month and, to avoid the statute of limitations (3 Comp. Laws 1929, § 13976), claimed that the contract was a continuing one without modification or change and, therefore, the action for recovery was not outlawed by lapse of time. Plaintiff claimed $20 per month from January 1, 1905, to October 7, 1935, a period *Page 685 of 369 months, or $7,380. The jury awarded $5,275, or $2,105 less than the amount claimed, or a deduction of between eight and nine years.
It is quite evident that the jury found the contract urged by plaintiff did not continue without change, but that a change came when the farm had been mostly let out to share-croppers and plaintiff had obtained a team and tools and worked some fields.
Defendant requested the following instruction:
"I charge you that there can be no recovery in this case of any amount whatever unless you find, as a matter of fact, from the preponderance of evidence in the case, that the contract of employment existing in the year 1898, by which claimant was to have compensation for acting as a farm-hand on said farm at the rate of $20 per month actually continued at all times to exist in all its terms without modification. You cannot award anything to the claimant on any other basis than the contract of employment as a farm-hand continued at the same wage during that entire period."
Plaintiff sought recovery under a continuing contract and both plaintiff and defendant made that the sole issue in the case.
The circuit judge, however, sua sponte, instructed the jury in part as follows:
"I charge you that you will first determine, was there an express contract between the deceased, Frances Van Buskirk and claimant, Charles Decker, and, if you find, having all the testimony in mind, that there was such an express contract, you will then determine what claimant is entitled to, if anything, by reason of that contract. Now, I think under the proofs in this case, I am justified in saying to you as a matter of law that if such contract were made it contemplated the services to be performed, the work *Page 686 to be done, having in mind the condition of the farm, the animals and fowl kept thereon, the crops raised and the general repair of the premises at the time it was so made. That if you find there was such a contract, then it is your duty to find how long the same continued, the same conditions existed. In other words, if you find such express contract based upon the conditions that then existed, it then becomes your duty to go on and find how long those same conditions existed, requiring the same services contemplated at the time the contract was entered into. Under the proofs in this case, there is no dispute but that those conditions changed and it is not reasonable to assume that if deceased had made any such contract with the claimant that he would be entitled to the same wages for much less requirement and having also in mind that he was a man, under the testimony here, of 49 or 50 years of age at the time of the alleged contract and has since been subject to the same laws of nature as all of us. I will so charge you that if you find such contract was entered into and as a result thereof you find that the claimant is entitled to a certain sum for a certain length of time during which the same conditions existed and the same amount of service of the same nature was required of claimant, you will then determine whether or not there was an implied contract from that time on. In other words, after those conditions ceased whether from that time on there was an implied contract, having the definition as I have heretofore given you in mind of an implied contract, by reason of which implied contract, — meaning whether there were services performed there by him, to repeat, which services were accepted by Miss Van Buskirk and which services were not paid for by her, which you must also find if you find for claimant, that by reason of these services, whatever they were, having been performed during that time that the claimant is entitled to reasonable compensation therefor. I will repeat, that if you find such contract by reason of *Page 687 which claimant is entitled to the fair value of services so performed for the deceased from the time of the termination of the express contract down to the time of her death. If you find such implied contract you will then proceed to determine the amount to which claimant is entitled, if any, having in mind, as I have already called to your attention, the changed conditions on the farm in question, the nature and amount of work required and the impairment, if any, in the ability of claimant to perform the same.
"If, after careful consideration, you find an express contract in favor of claimant and determine for what length of time under these instructions that express contract continued and arrive at a figure which you believe claimant is entitled to under the terms of the express contract and you do not find any implied contract, that will end your deliberations and you will return a verdict for the amount he is entitled to receive under the terms of that express contract. If, after careful consideration, you resolve both of these propositions, that is, namely that there was an express contract which terminated by reason of these matters, facts and circumstances that I have gone over here with you and you then find there was an implied contract from that time on for the payment of any certain amount constituting the reasonable value of the services that claimant did perform there, whatever they were, down until the death of Frances Van Buskirk, so that what I mean by both propositions, if you find in favor of claimant with reference to the express contract and find an implied contract from that time on, in other words, if you resolve both propositions in favor of claimant, you will then return a verdict of such amount as you find in favor of claimant under both of these situations."
This instruction, relative to an implied contract, was wholly without supporting evidence and directly contrary to any issue in the case. *Page 688
Some years ago, the time being indefinite, the plaintiff purchased a team and farming tools and used the same in working certain fields, leaving other fields to be rented out to share-croppers. This was undoubtedly in pursuance of some new arrangement and, necessarily, interrupted continuance of the contract, made in 1905, for personal services only.
Defendant's quoted request should have been given for it presented the only issue claimed by the plaintiff.
Under the instructions given and the verdict rendered it is impossible to say upon what theory the plaintiff recovered. He could not recover upon an implied contract and quantum meruit, for that would be contrary to his claim and wholly unsupported by evidence.
The jury disallowed $2,105 of his claim. Why the deduction, if the contract was a continuing one? If the jury found that there was a change, when did the change take place? If there was a change, on what theory was compensation awarded?
I find no evidence of value of services, except under the original contract.
The statute, 3 Comp. Laws 1929, § 15682, provides that: "no claim barred by the statute of limitations shall be allowed by the commissioners in favor of or against the estate, as a set-off or otherwise."
This being an appeal to the circuit court from disallowance of the claim by the commissioners it was incumbent on plaintiff to show that his claim was not barred by the statute of limitations. He attempted to do this under an issue that the contract was a continuing one and that issue, as the sole one, should have been submitted to the jury along with defendant's claim that, under the evidence, there was a change, sufficient in point of fact and law to remove *Page 689 the presumption of continuance relied upon by plaintiff.
We cannot say from this record what the jury found on this point beyond the fact that the jury disallowed a large part of plaintiff's claim.
There should be a new trial and it should be so ordered, with costs to defendant.
FEAD, C.J., and NORTH and BUTZEL, JJ., concurred with WIEST, J.