
    Railroad Company v. Lee.
    Where a prosecuting attorney appears before a magistrate, at tbe request of a citizen, and prosecutes one charged with the commission of a felony, preparing the papers necessary for such purpose, there is no implied contract that such citizen will pay him for such services. ■
    Error to the District Court of Erie County
    On May 22, 1875, Benjamin E. Lee brought suit in the Court of Common Pleas of Erie county, against the Cincinnati, Sandusky and Cleveland Railroad Company, to recover for services rendered as an attorney at law, for and at the request of the company. The services, it is alleged, rendered in February, 1874, were the prosecution of suits, drawing and copying papers, and giving advice to the company’s agents in its business.
    The answer is as-follows: “Between the 10th and 20th days of February, 1874, the plaintiff was the duly elected and qualified, and acting prosecuting attorney of Erie county, Ohio, which said office was held by the plaintiff from the first day of January, 1873, to the 1st day of January, 1875, and the certain suits in said petition referred to were criminal suits for felonies against a citizen of said Erie county, instituted before the mayor of the city of Sandusky, in said Erie county, and that all the services referred to and mentioned in said petition, were services rendered in counseling and advising and prosecuting said criminal suits before the mayor, and writing and copying papers necessary thereto. And this defendant admits that its officers did consult the plaintiff in regard to said criminal prosecutions, and state the facts relating to the same to the said plaintiff, and ask his advice and direction therein, and that the said plaintiff did advise the prosecution of said criminal suits, and aid in the preparation of papers for the same, and appear before the said mayor, in the prosecution of the same, at the request of the officers of this defendant; but this defendant denies that the plaintiff was offered or promised any compensation therefor, or that he is entitled to any.
    A demurrer was interposed to this answer and the same was sustained ; and no further answer having been filed, the cause was, by consent of parties, submitted to the court on the petition and evidence, and judgment was rendered in favor of Lee for $300 and costs, which judgment was affirmed in the district court. This petition in error is filed to reverse both judgments.
    
      S. A. Bowman, for plaintiff in error:
    
      Gilmore v. Lewis, 12 Ohio, 281; Goulden v. State, 11 Georgia, 47. And see Rea v. Smith, 2 Handy, 193
    
      T. P. Finefrock, for defendant in error, and B. F. Lee, in person:
    
      Smith v. Portage County, 9 Ohio, 25. And see Sharp v. Kirkendall, 2 J. J. Marsh. 150 ; Davis v. Munson, 43 Vt. 676.
   Okey, C. J.

Lee having performed services as an attorney, in pursuance of the request of the railroad company, the agreement of the company to compensate him would be implied, in the absence of any other fact. But the law does not -imply such promise in all cases where one performs service at the request of another. Take the familiar example of a son who continues, after arriving at age, to live with his father, and perform services at his request. The son may have expected to be paid wages, but.from the mere fact that he acted under direction of his father in the same way as during his minority, a contract to pay wages will not be implied.' To constitute an agreement to pay wages in such a case, it is not essential that any price should be fixed, but words must be employed showing that both parties understand that wages are to be paid.

It is the duty of the prosecuting attorney to conduct the prosecution of offenders in the court of common pleas; but in Smith v. Portage County, 9 Ohio, 25, it is said that he is not bound to appear before a justice of the peace or mayor, in a criminal case. The law remains the same to the present day. But, in fact, that officer, in many cases, appears voluntarily in the examining court,-and conducts the prosecution there. He doss the same thing sometimes at the request of a citizen, without any expectation on his part to receive, or on the part .of the citizen to pay, compensation for the services.

¥e cannot say, looking to the facts stated in this answer, that there was an implied contract on the part of the company to pay Lee compensation for his services. The further proposition is urged by the counsel for the company that even an express agreement to pay would have been void, as contrary to public policy. But upon that question we express no opinion ¥e hold the answer to be sufficient, and, hence, that it was error to sustain a demurrer to the answer. The judgment will be reversed and the cause remanded for further proceedings.

Judgment reversed.  