
    
      Samuel Price and others vs. Cuthbert Price, executor of Cuthbert Price, deceased.
    
    A son, who had lived with his father and served him, as an overseer, many years, with an understanding that his services were not to be gratuitous; but who, in consequence of intimations that he would be more than paid after the old .man’s death, forbore to demand compensation ; was entitled, on the death of his father, who left him nothing by his will, to the value of his services out of the estate.
    The son’s foibearance to press his demand having occurred in consequence of the intimation that it would be satisfied aftei his father’s death, the Statute of Limitations did not commence to run, against any part of it, ’till the father’s decease.
    Heard before Johnston, CL, at Chester, June, 1837.
    Bill against Cuthbert Price, Jun, as executor and administrator of the deceased, his father, to compel a distribution. The defendant set up a claim, on his own part, of $200 a year, for personal services, for eight years, as overseer to the testator. Upon a reference, the commissioner reported against his demand. The report was excepted to and the exception partially sustained; as appears by the annexed extract from the decree of his Honor Ch. Johnston.
    The first exception of the defendant appears to be well founded. From the testimony, it appears that defendant went •to live with the testator and to perform service for him, at his instance and request. There was no stipulation as to compensation.
    If services are rendered without any express stipulation as to price, the law raises an implied contract to pay as much as they are worth; unless there was an interest, on the part of him who renders them, not to make a charge, or a reasonable expectation, on the part of him who receives them, that he is to receive them as a gratuity.
    
      I think there is no evidence, here, that the defendant intended, or that the testator expected, a gratuity. On the contrary, the father intended, and the son expected him, to make compensation. It is true that the father intended to make that compensation in a legacy, (far exceeding, perhaps, the value of the services;) and the son, in consideration of this superior remuneration, part of which would have been a gratuity on the part of the father, forbore to press his demands. But the legacy formed no part of the contract between them. The contract consisted, simply, in the son’s undertaking and performing services at the instance of the father. If there was no understanding that they should be gratuitous, they form the consideration of an implied promise to pay for them: Ward vs. Turner, (2 Ves. Senr. 444.) There is nothing in Trammel vs. Salmon, inconsistent with this view. On the contrary, it is admitted, in that case, that, if the evidence had not shewn an intention not to charge, the son-in-law would have been entitled to his demand for boarding the mother-in law. Here, there is no evidence to rebut the presumed intention. The difference between the two cases is in the evidence, and not in the law.
    But take the case supposed by the commissioner. Suppose that the son had served the father in consideration of a promise to give him, by will, all his after acquisitions. The ■son performed his part of the contract: the father failed in his. Shall the breach of a contract be received as a reason why it ■should not be performed 1 Does a man become released from his obligations merely by violating them í I think, on the contrary, that the failure of the father to perform his contract lays the strongest foundation for the interposition of this Court, to remunerate the son.
    The case of mutual wills stands on this principle, and this alone, that, when one performs and the other fails, this performance is the foundation for a decree: Izard vs. Myddleton, 
      (1 Des. Eq. 116, notes.) That principle applies with all its force to the case supposed by the commissioner, and would conduct us, I think, irresistibly, to the conclusion that, if the contract had been, that the son was to be paid by a legacy of the after acquisitions, a decree ought to have been given for them. But this was no part of the contract. It was, simply, that the son should serve and should be paid. To this he is entitled.
    It appears, however, that the son and his family were supported by the father; that the latter paid his accounts and discharged his contracts. These advances should be discounted against his wages. If actual proof cannot be obtained, of what the son’s expenses were, general estimates, or circumstantial evidence, of what the son must have cost the father, annually, in this way, may be resorted to.
    With this direction, the exception is sustained and the report re-committed.
    The commissioner, in a second report, made in obedience to the above decree, estimated the amount due the defendant at fifty dollars per annum, during the time he had lived with his father.
    To this report, both parties excepted; the defendant because the amount was less than the evidence entitled him to, and the complainants on the ground that the defendant’s claim, except for the last four years, was barred by the statute of Limitations.
    The case was heard, on these exceptions, in June, 1838, before his Honor, Ch. Dunkin, who made the following decree:
    The only question submitted to the consideration of the Court is, the amount of compensation to be allowed to the de- > Cendant, for services rendered to the testator. The defendant insists that the annual allowance reported by the commisr .sioner, is too small; and the-complainants interpose the plea of the Statute of Limitations to any account or demand beyond four years prior to the testator’s death.
    Cuthbert Price, Sen’r., the testator, and father of the defendant, made his will in July, 1826. At that time his wife was alive, and all his children were settled off; the defendr ant, who was the last, having married in the December previously, and shortly afterwards removed about one and a half miles from the testator’s place. It appears from the testimony ? that the defendant was far advanced in years; and in a conversation with one of the witnesses, John Price, the old man said “he wanted Bird, (the defendant,) back, and he could hardly do without him,” -To another witnes, Tobias Phillips, he said ‘“he must have him, (defendant,) back to live with him, that his negroes were neglecting their business, and that he was too old and infirm to attend to the negroes and horses, and that he must have him, let it cost him ever so much.” In three or four months after the defendant’s removal, the testator proved him back; “ and the defendant and his negroes, and the testator and his negroes, all worked on the old man’s plantation together.” At first, the defendant and his wife resided ip a house about one hundred yards from the testator. In Septepiber, 1826, Mrs. Price, the wife of testator, died. Some time after her death, the defendant removed into the house with his father, and so continued to reside with him until the testator’s death, in 1834. The defendant’s wife died in September, 1828, and he again married in the fall of 1832.
    In a former report, the commissioner had rejected altogether, the claim of the defendant to compensation for the services of himself and his wife. On exceptions filed, the phancellor, at June term, 1837, reversed the decision of the commissioner, in respect to the allowance of compensation fpx the services of the defendant, and directed the report to bn re-committed. The commissioner, in his last report, recommended an annual allowance of fifty dollars, and the defendant has excepted to this, as manifestly inadequate according td the testimony submitted.
    A very careful review of the testimony has left on my mind' an impression, the same as seems to have influenced the Chancellor who pronounced the previous decree. It is a misapprehension that this is an attempt to convert into a charge what was originally intended as a gratuity. When Cuthbert Price, the younger, at the request of his father, gave up his" own establishment and returned to take charge of the testator’s business, it was evidently not the understanding of either party that his service was to be gratuitous. The uniform declarations of the testator shew his' consciousness of what Was1 due to his son; his recognition of the understanding between them, and that he intended to provide liberally for him, as a compensation for his acquiescence in his wishes, and his conduct in his employment. It is not less clear, from' the testimony, that this was the expectation of the son.
    If the son was content to wait for his remuneration until the decease of his father, and, from any cause, the testator failed to fulfil his'promise, I think, in the language of the Chancellor, that sO far from relieving-his estate “the failure of thé’ father to perform his contract lays the strongest foundation for the interposition of the Court, to remunerate the son.” I think' the testimony,-too, well warrants the presumption of an agreement that, in consideration of the services to be rendered by the defendant, the testator would, at his death, provide for himJ at least as much as the management of his business was reasonably worth. Nor do I think that this view does full justice to either party. The son was married and had commenced life on his own account. The father’s declaration's to' Phillips," shew that he did not expect him to sacrifice either his plans or his independence for a trifle. Neither party believed that the sou was to be placed on the footing of a common hireling, or to be paid as such.
    It is admitted that the ordinary wages of an overseer for such an establishment, is about two hundred dollars per an-num. As far as I can gather from the testimony, the defendant appers to have been well occupied, not only in the ordinary duties of an overseer, but in attending to other matters which are said not properly to belong to this station. But, it is said, the crops prove that he is not entitled to the wages of a competent and faithful overseer. This is not always an infallible criterion; nor, does it seem to me, strictly applicable to this case. No person was so well qualified, or had so good a right to judge of the competency of his oveiseer, or of the manner in which his affairs should be conducted, as the testator himself. His lands were much worn — he had many small negroes — he was, himself, much advanced in life, yet, frequently attending to plantation affairs, and the son went with his cotton to Columbia, or was engaged in wagoning on his father’s account, or in settling his other business. Under these circumstances, it may readily be conceived that large crops would not be made, and were not expected; and yet, that the services of the son were quite as important and useful to the father, as those of the most exacting overseer. It may be remarked, also, that the affairs of the testator continued to improve. He added another tract of land to his farm, and paid for a family of negroes which he had purchased. When it is considered that the defendant had abandoned his own arrangements, and devoted to the service of his father eight of the best years of his life, I think it is in fulfilment of the uniform understanding, that a liberal remuneration should be allowed. Some of the witnesses, who had frequent opportunities of observing the conduct of the defendant, estimated the value of his services during the several years at from two hundred to three hundred dollars. All the witnesses except one, I think, agreed that the ordinary wages to an overseer of such a force as that of the testator, is two hundred dollars. It has been seen that the duties and the services of the son were not confined to the employment of an ordinary overseer.
    When, in 1834, the defendant expressed a desire to remove to the West, he was dissuaded by the testator, who then repeated the assurances of full satisfaction for his services. On the whole, I think, that these engagements of the testator are fulfilled in moderate measure, when his estate pays to the defendant no more than he would himself have been compelled to pay to an overseer, who had faithfully superintended his plantation.
    The view I have taken, disposes of the Statute of Limitations. It was not the understanding of the parties, that the defendant should be compensated until the death of the testator, and the right did not accrue until that event.
    It is ordered and decreed that the case be re-committed to the commissioner, with instructions to reform his report, by allowing to the defendant credit as of the date of the sales bill, for the sum due for his services while in the employment of the testator, estimating the same at the rate of two hundred dollars per annum.
    From this decree the complainants appealed, on the ground of the Statute of Limitations; and also because his Honor ought to have ordered the debts and expenses of the defendant, paid by his father, to be discounted against his demand.
   Curia, per

Dunkin, Ch.

The Court sees no cause to revise either of the decrees which are the subject matter of appeal. Nor is it perceived that the supposed discrepancy exists. The decree of June, 1838, merely fixes the amount at which the defendant’s services should be estimated. If the testator furnished any supplies to the defendant, not usually allowed to' an overseer, or paid his accounts* there is nothing in the decree of June 1838, which would prevent the commissioner, in making up the account, from' discounting (in the language of the former decree,) such advances from the annual sum at which the services are directed to be estimated.

Mills, for the motion*

The decrees are affirmed, and the appeal dismissed.

Johnson, Harper and Johnston, Ch., concurred;  