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Friermuth v. Friermuth

Supreme Court of California
Apr 1, 1873
46 Cal. 42 (Cal. 1873)


[Syllabus Material]          Appeal from the District Court, of the Third Judicial District, County of Santa Cruz.

         The plaintiff was the son of the defendant. The complaint contained three counts, one for services performed by the plaintiff for his father and Steigleman, who were partners during the minority of the plaintiff, from the eighteenth day of June, 1867, to the eighteenth day of June, 1869, and another for like services, from the eighteenth day of June, 1869, when the plaintiff is alleged to have attained his majority, to the first of May, 1871. These two counts averred special promises to pay the plaintiff twenty-five dollars per month during the first period, and seventy-five dollars per month during the second period. The second count alleged that the partnership existed up to January 14, 1871, and that on the last-named day Steigleman died.

         The third count was on a quantum meruit for plaintiff's services during the entire period, and also averred Steigleman's death, and that defendant was left sole surviving partner.

         The defendant demurred to the complaint, because it did not state facts sufficient to constitute a cause of action, and because two causes of action were united. The Court below overruled the demurrer. The defendant answered, and the cause was tried by the Court.

         On the trial the plaintiff elected to abandon the second count of the complaint, and proceed on the third count, upon the quantum meruit; and against defendant's objection, was allowed to introduce evidence to show a special contract, as tending to show the value of his services.

         The Court found that the plaintiff's services, after he attained his majority, were reasonably worth seventy-five dollars per month, and gave the plaintiff judgment for the services performed after he attained his majority. The Court says: " For the services rendered after plaintiff became of age there is a count upon a quantum meruit, and there is proof that the services were rendered and were reasonably worth the sum of seventy-five dollars per month."

         The defendant appealed.


         It was error in the Court to allow plaintiff to introduce evidence of a special contract in support of the quantum meruit count: 7 Cowen, 92; 18 Johns, 456; 10 Johns, 36. Such testimony is only admissible when plaintiff is prevented from performing the contract, or when the terms of the contract have been varied: 6 Cal 111.

         The plaintiff being the son of the defendant, and living with and being supported by defendant, seeks to recover from him the value of his services upon a general count in assumpsit, or in the absence of a special agreement therefor. This never was law in any age or country: 1 Blackstone, 453; Dye v. Herr, 15 Barb. 444; Andrus v. Foster, 17 Verm. 556; Resor v. Johnson, 1 Carter, Ind. 100; Rix v. Low, 1 B. & Ald. 179; Cropsey v. Sweeney, 27 Barb. 310; S. C., 7 Abbott's Pr. 129; Moore v. Moore, 21 How. Pr. 211.

         Our Code Commissioners have very correctly and succinctly embodied the common law upon the subject in the following words: " When a child after attaining majority, continues to serve and be supported by the parent, neither party is entitled to compensation in the absence of an agreement therefor:" Sec 210, Civil Code.

         Julius Lee and J. A. Barham, for Appellant.

          Craig & DeWitt and A. Hagan, for Respondent.

         Plaintiff had a right to sue Friermuth, alone, after the death of Steigleman: May v. Hanson, 6 Cal. 643; Humphreys v. Yale, 5 Cal.; People v. Evans, 39 Cal. 429. The Court did not err in admitting testimony upon all the counts in the complaint. The verdict or decision being special, as to the single count, there could be no error injurious to appellant. After the plaintiff became of age, he was of course, emancipated and entitled to pay for his services. The Court finds that the services were performed after plaintiff attained his majority: Schouler's Domestic Relations, 345; 2 Kent, 193.

         OPINION          By the Court:

         The demurrer to the complaint was properly overruled. The action was brought against the defendant as surviving partner of the firm of Friermuth & Steigleman, to recover for work and labor performed by the plaintiff, and the complaint is sufficient both in substance and form.

         Upon the question of the value of the plaintiff's services the testimony was conflicting. Aside from the evidence in reference to a special contract, there was testimony tending to prove that the services were worth seventy-five dollars per month. In such case we cannot interfere with the finding of the Court below.

         We see no valid objection to the judgment, because it was based upon a quantum meruit. When a son remains with and performs services for his father after reaching his majority, the law will not ordinarily imply a promise on the part of the father to make pecuniary compensation for the labor. But if the circumstances show that it must have been the expectation of both parties that he should receive compensation, then a promise will be implied: Andrus v. Foster, 17 Vt. 556; Dye v. Kerr, 15 Barb. 444.

         Judgment and order affirmed.

Summaries of

Friermuth v. Friermuth

Supreme Court of California
Apr 1, 1873
46 Cal. 42 (Cal. 1873)
Case details for

Friermuth v. Friermuth

Case Details

Full title:H. E. W. FRIERMUTH v. G. A. FRIERMUTH

Court:Supreme Court of California

Date published: Apr 1, 1873


46 Cal. 42 (Cal. 1873)

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