Curry v. Curry , 114 Pa. 367 ( 1886 )

Mr. Justice Trunkey

delivered the opinion of the court,

Were this an equitable ejectment, a principle contended for by the plaintiff in error would apply, namely, that the judge acts as a chancellor, and if he is not moved as a chancellor to grant the equitable relief sought, he may withdraw the case from the jury by binding instructions, or refuse to enter judgment on a verdict that is contrary to equity.

But this is a suit at law, and all controverted questions of fact were for the jury. The judge had no right to give binding instructions as to what the verdict should be, for there was no conclusive fact proved by written testimony, nor was there any essential fact in the making out of the plaintiff’s case of which there was not sufficient testimony to submit. Even if the judge thought the testimony to establish a material fact was incredible, he could not instruct them to cast it aside; nor could he instruct them to find a controverted fact proved by oral testimony, for the jury judge of the credibility of witnesses and might disbelieve them.

The performance and receipt of services generally raises an implied promise by him who receives to compensate him who performs, but the implication may be rebutted. When the parties are parent and child, or members of the same family, the relationship excludes the implication of a promise. In all cases except that of parent and child, there must be evidence beyond the relationship, that the creation of no debt was intended. Where the parties are brother and sister, the sister claiming compensation for her services, the burden of showing family relationship, or other cause, to exclude the implication of his promise to pay for the services, is upon the brother. Because of the fact that they are brother and sister less evidence besides would be required to establish that they lived together, as a family, than if they were strangers. If he shows that they so lived, the jury ought not to find an implied promise.

At the trial the plaintiff clearly proved that she performed services for her brother, William H. Curry. Strong testimony of the existence of the family relation between them during the time of said service was adduced by the defendant, in addition to what was testified by the plaintiff’s witnesses, tending to prove said relationship. Had there been nothing more it is unlikely that the verdict would have been for the plaintiff, and had. it been, it is probable that the court would have promptly set the verdict aside and granted a new trial.

There is ample testimony that the parties to the deed made and received it for the very purpose of preventing the plaintiff from collecting the money due her for her services. William H. Curry told his brother that he expected Mary would bring suit for her work, and if she did, it would not cost him less than a thousand dollars; the brother advised him to convey the land to some one soon as he could, and then she could not get anything for her work; and the deed was made to this brother’s wife, for the named consideration of fifteen hundred dollars, but she paid nothing for the land. If the jury believed the testimony respecting that transaction, it would have weight on the question whether Mary was entitled to compensation for her services, or was merely a member of William H. Curry’s family. The brothers believed she was entitled to compensation, and contrived to cheat her out of it by a collusive and fraudulent conveyance. In the view of such testimony how could the court charge, “ that under the law and the evidence in this case the plaintiff cannot recover?” The defendants’ sixth point was rightly refused.

The Act of 1869, .including its supplement, made no person an incompetent witness, under circumstances where he was competent before. Prior to that enactment William H. Curry would have been a competent witness for the plaintiff, under like circumstances, and he is now.

The defendant’s second, third and fourth points were well answered, and the instructions of the court on the subjects of these points were not only accurate, but proper to enable the jury to intelligently perform their part in the trial.

Judgment affirmed.