
    STONE, Respondent, v. TROLL, Public Administrator, Appellant.
    St. Louis Court of Appeals,
    December 1, 1908.
    1. CONTRACTS: Implied Contract: Gratuitous Service. The presumption that services rendered by a child to its parent are gratuitous may be overcome by evidence of an express promise by 'the parent to pay for the services or by evidence which shows that the child rendered the services with the expectation of payment and that the parent intended to pay for them.
    2. -: -: -: Prima-Facie Case. Where a working man with a large family lived in a tenement and his father came to live with him and was assigned a room in the tenement, was furnished board and had his laundry done by the plaintiff’s wife, and where it was shown that he expressed his appreciation of the services rendered and stated to several friends that he intended to give his son everything he possessed as a reward to him and his wife for the treatment they had given him, this was sufficient to make out a prima-facie case of his intention to compensate for the services; and also was evidence tending to show there was an understanding between the father and son that the latter should be compensated for his services.
    Appeal from St. Louis City Circuit Court.— Hon. Moses N. Sale, Judge.
    Affirmed.
    
      Henderson & Beclcer and J. R. Van Slylce for appellant.
    
      J. L. Hornsby for respondent.
   BLAND, P. J.

Defendant is the administrator of the estate of Charles K. Stone, deceased. The action was begun in the probate court of the city of St. Louis, by the presentation therein of the following account for allowance against the estate of Charles K. Stone:

“Charles K. Stone, deceased, to Albert Stone, Dr.
“To board and lodging for deceased from May 4, 1904, to Feb. 17, 1906, 95 weeks, at $5.50 per week.$522.50
“To amount paid for telegrams and other expenses and loss of time on account of deceased . 27.50
“Total .$550.00.”

In due course the cause was appealed to the circuit court, where on a trial de novo, the court sitting as a jury, the finding and judgment were for plaintiff. Defendant appealed.

The facts developed at the trial, briefly stated, are these: In May, 1904, Charles K. Stone, the father of Albert Stone, the plaintiff, came from Minnesota to St. Louis and thereafter resided with his son in said city, urttil February 17, 1906, when he died. His son was a pattern maker and had a wife and eight or ten small children residing with him in a five-room tenement house. In this tenement a room was set apart for Charles K. Stone which he occupied until the date of his death. He was also furnished board by his son, and his laundry was done by plaintiff’s wife. The evidence shows that deceased was well cared for by plaintiff and his wife and that he appreciated the good treatment and the services rendered him by them, and on several occasions stated to a neighbor and intimate friend, that- everything he had, “everything he possessed,” he intended to give to his son, and that he could not reward him and his wife enough for the treatment he had from them; that he would give to his son and his son’s children an eighty-acre farm he owned in Minnesota as soon as they would move to it. Plaintiff also offered evidence tending to prove his account. Defendant offered no evidence. At the close of plaintiff’s evidence, defendant offered a demurrer thereto which the court refused.

At defendant’s request the court declared the law as follows:

“The court further declares the law to be that before the plaintiff can recover in this case, he must prove, by a preponderance or greater weight of the evidence, either an express contract to pay between the father and son for said services and support or that at the time said services were rendered and said support was furnished, that the father intended to pay his son for said- services, and at that time the son intended to charg-e his father for said services and support. And if the court believes that plaintiff has failed to so establish these facts, then the court declares th.e law to be that plaintiff is not entitled to recover and its verdict will be for the defendant.
“The court declares the law to be that the mere fact that Charles K. Stone lived with Albert Stone, his son, does not entitle Albert Stone to charge the estate of his father with board and lodging during said time.
“The court declares the law to be that in this case the law presumes that there was no intention op the part of the father to pay, or on the part of the son to receive pay for the value of services rendered or the support furnished.
“The court .further declares the law to be that before plaintiff can recover in this case, he must prove, by a preponderance or greater weight of the evidence, that at the time said services were rendered and said support was furnished, that the father intended to pay his son for said services, and at that time the son intended to charge his father for said services and support. And if the court believes that plaintiff has failed to so establish these facts, then the court declares the law to be that plaintiff is not entitled to recover and its verdict will be for the defendant.”

Barring bis demurrer to the evidence, defendant got all tbe declarations of law be asked for, so tbe sole question in tbe case is whether or not tbe court should have sustained tbe demurrer.

Tbe legal presumption of a promise to pay for services rendered by one person at tbe request of another, where there is no contract or agreement for compensation, is reversed when tbe services are rendered by a child to its parent. In such circumstances the law implies tbe services were gratuitous. But this is only a presumption of fact which may be overcome-by evidence of an express promise by tbe parent to pay for tbe services, or where the evidence shows tbe child rendered tbe services in expectation of paymeii! and the parent intended to pay for them. There is no evidence of an express contract between deceased and bis son, tbe plaintiff, that deceased should pay for tbe services rendered him by bis son, but there is evidence that plaintiff was a working man, with a wife and large family of children, living in a rented tenement, and there is evidence tending to show deceased intended to pay plaintiff and bis wife for taking care of him. John Weiland, a witness for plaintiff, testified that deceased not only once, but many times, told him that be intended that bis son should have everything be bad for tbe good treatment be and bis wife bad given him. Nothing was said by deceased to Weiland about making a will in favor of bis son. Tbe purpose of tbe deceased, from the evidence, seems to have been to turn over everything be possessed to bis son in bis lifetime. We think this evidence clearly shows be intended' to compensate bis son for tbe services. Tbe evidence, of an intention on plaintiff’s part, to charge deceased for taking care of him is not so clear, but tbe declarations of deceased, that be intended bis son should have everything be possessed, and that be intended to give him bis farm in Minnesota, is some evidence of an understanding between the father and son that the latter should be compensated for his services. [Hayden v. Parsons, 70 Mo. App. 493; Lillard v. Wilson, 178 Mo. 145.] This evidence, considered in the light of plaintiffs occupation as a wage earner, and the fact that he had a large family of his' own to support and lived in a rented tenement, we think tends to shoAV the services Avere not rendered as a gratuity and hence that the demurrer to the evidence was properly overruled.

The judgment is affirmed.

All concur.  