Gentlemen of the Jury:
The plaintiff in this case avers that she furnished board, mending and washing, for one D. M. Jenkins, from July 26, of 1885, to October 15,1890, a period of two hundred and fifty-five weeks, after deducting certain times when he was absent for which no claim is made. She further says, that said D. M. Jenkins is a nephew of the defendant, and was in his employ; that said board, mending and washing, were furnished by her at the special instance and request of said defendant, and that the same was worth $?.00 per week. She asks judgment.against the defendant for 8765.00, with interest from the 15th day of October, 1890.
Defendant has also filed an amendment to his original answer, in which he further •avers, that at the time mentioned in the petition, plaintiff was and still is.a married woman, the wife of C. J. Spayne, and that the said C. J. Spayne and the defendant, in 1885, entered into a contract whereby said Spayne, with his family, including the plaintiff, removed into the house and upon the premises of defendant Port William, and continued to reside thereon up to March, 1891,under contracts made each year during their residence on said premises; that at the expiration of each annual contract, defendant and said Spayne made full and complete settlements of all matters of dealings between them, including the matters set up in the petition ; that said contracts and settlements were made in the presence and with the knowledge of the said plaintiff, and with out any claim upon her part that she should Teceive any additional sum upon the pretended claim set out in the petition ; and the defendant denies all indebtedness to the plaintiff upon said cause of action.
Plaintiff,by way of reply to these matters of defense, admits that she and said O. J. Spayne were husband and wife,and that she and her husband resided on the farm of defendant, and she denies all other allegations in said amendment to said answer.
And by an amendment to the petition,the plaintiff avers that she performed the services in boarding, washing and mending for said Jenkins, with the knowledge and consent of her husband,and with the agreement that it. should be on her own separate account, and that she should receive the compensation therefor.
These further allegations of the plaintiff are denied by the defendant.
Such, in brief, gentlemen, are the claims of the parties as set forth in their pleadings in the case.
It is proper, however, thac 1 should here say to you that the plaintiff now admits that she received pay for all boarding, etc., furnished in the year 1885, and that twenty-eight weeks of the time and 884.00 in amount, should be deducted from her claim as set forth in the petition, leaving the whole time now claimed for two hundred and twenty-seven weeks — and the amount now claimed, $681.00, with interest from October 15, 1890.
Prom the foregoing statement of the claims of the respective parties, you will observe that the following facts stand admitted by the pleadings, to-wit:
First: — Ihat plaintiff was at the time of furnishing said board,etc.,a married woman and the wife of said C. J. Spayne.
Second : — That they at the time resided together on the farm of the defendant.
And while it is not stated in the pleadings, I understand it to be admitted also, that plaintiff was not at said time engaged in the separate or independent business of keeping a boarding house, or of taking in washing and mending for persons outside of the family.
Defendant in his original answer ny way of defense, says, that he admits that said Jenkins is his nephew, and nas been occasionally in his employ; but he denies each and •every other allegation of said plaintiff in her petition.
What is claimed is,that said D. M. Jenkins, during the time specified, boarded and lodged in the family; that he ate at the family table; that what ha ate was supplied and prepared along with what was supplied and prepared for the use of the family ; and that his washing and mending were done along with the washing and mending of the family, and she seeks to recover in this action in her own name and right for the board thus furnished to. and the washing and mending thus done for said Jenkins.
Under this state of the issues presented for your determination, the plaintiff must prove before she can recover in this case, and the burden is upon her to show by a fair preponderance of the evidence, the following facts:
First: — That she boarded said Jenkins and did his washing and mending during a part or all of the time claimed for; and that he was at the time employed by defendant.
Second: — That said boarding, washing and mending were furnished under a contract between her and said defendant by *300which said defendant agreed to pay her therefor.
Third : — That said services in boarding, washing and mending, were rendered by plaintiff with the consent of her husband and with an understanding between them that the services rendered should be on her own account,and that she should receive the compensation therefor.
Fourth : — The length of time or number of weeks such services were rendered and the fair and reasonable value thereof.
I will now call your attention to each of these matters more fully, and explain the law in relation thereto.
First: — Did she board,wash and mend for said Jenkins during a part or all of the time now claimed for by her, and was he at that time in the employ of the defendant? These are matters of fact which you must determine from the evidence. You have heard the testimony of the parties and other witnesses upon these points, and from this you must determine at what times and for how long within the period named, Jenkins was in the employ of the defendant, and whether plaintiff, during said time, furnished him with boarding washing and mending as claimed by her. Having determined these matters, you will then proceed to inquire as to the second and third matters above stated,namely :
“Were such boarding, washing and mending furnished by plaintiff under a contract between her and the defendant by which he agreed to pay her therefor?
And were said services rendered by the plaintiff with the consent of her husband and with an understanding between them, that the same were rendered on her own account and that she should receive pay therefor?
By the common law the legal existence of the wife was held to be so far merged in that of the husband that she was held to be incapable of entering into any contract which might be the foundation of a legal right which she could assert by an action in her own name.
But the strictness of the common law in this regard had been greatly modified by statute in thiB state, and the disabilities of the wife to make and enforce contracts in her own name have been in a large measure removed. A wife may now make legal and valid contracts in reference to her own property rights as if she were unmarried. She may enter into contracts in reference to any separate business in which she is engaged, and she may contract to perform labor or services on her own account,and may in her own name sue for and recover compensation for the labor performed or services rendered.
But these statutes enlarging the rights and liabilities of the wife and making her capable of entering into such contracts have not abrogated her relations as a wife, nor released her from her wifely duties of doing and caring for her own household,nor deprived her husband of his common law rights to the services of his wife in the discharge of her. household and domestic duties. The-husband is still the head of the family, and the services of the wife in the performance of such duties belong to the husband in right, of that relation.
Where, therefore, a person is taken into the' family to board ; when such person eats at the family table; when what he eats is supplied and prepared along with that which is provided for the use of the family; and where his washing and mending are done with that of the family ; the right of action, for the board so furnished and the services: so rendered, is, in the absence of an understanding to the contrary, in the husband and. not in the wife, but this right of the husband he may waive and release to and in favor of the wife, and where such services, are rendered by the wife, and the husband, consent that the wife shall have and claim as her own and in her own right the compensation therefor,and the contract therefor is made between the wife and the person for,, or on whose account such services are rendered, with the consent of the husband, a> right of action therefor accrues to the wife, and she may sue therefor in her own name, and this would be true though the husband, might furnish the whole or part of the provisions for the table. But before the wife-can recover for such services in- her own name she must prove the essential facts-above stated; that is, she must prove by a fair preponderance of the evidence, that the-husband consented that such services should be rendered on her own account, and that she should receive the pay therefor ; and that, the contract for the same was made by ana between herself and the person on whose account the same were rendered with the husband’s consent,and if she fails to show these facts, she cannot recover.
Now, the defendant in this case denies-that he ever agreed to pay either the plaintiff or her husband for boarding, washing or-mending for said Jenkins, and he denies, that he ever made any such contract with the plaintiff; he further avers that all his-dealings and contracts were with the husband, C, J. Spayne,and that all matters, including all claims for boarding, etc., were fully settled between him and said Spayne and in the presence and with the knowledge of the plaintiff, and without any claim on her part to receive any additional sum on her own account.
Now, gentlemen, you have heard all the evidence bearing upon these issues. You should apply this evidence in the light of the law as given jou by the court. In addition to the testimony of the'parties and other witnesses,you may take into consideration all the acts and conduct of the parties as disclosed by the evidence so far as the same may in your judgments,have any bearing upon these questions. You must carefully weigh and consider all the testimony- and all the facts and circumstances in the evidence, and if you find that the plaintiff has failed to show that the defendant contracted with her to pay her for services 1 end*301ered in boarding, washing and mending for said Jenkins,and that her husband .consented thereto, and that said services should be rendered on her own account, and that she should receive the pay therefor, then your verdict will be for the defendant. If defendant did agree to pay for said boarding, etc., but this agreement was made with the husband, then plaintiff cannot recover. It must be shown that the contract, if any was made, was with the plaintiff before she can recover.
As bearing upon tne question whether the defendant ever entered into any agreement with plaintiff to pay for said board, evidence has been offered by the defendant for the purpose of showing that he extended to the husband of the plaintiff for the benefit of himself and family,certain rights and privileges of a valuable character beyond what he was required to do under his contract. It is claimed by the defendant that he gave extra privileges in the way of fruit from the orchard ; and the use of a patch of ground for raising potatoes,corn and vegetables,and the privilege of keeping and raising a large number of chickens on the farm, the privilege of using the milk from his cows, and making and selling butter therefrom ; the privilege of using his horses and buggy and perhaps other matters referred to in the evidence; that these privileges were valuable, and that it was expressly understood both by the husband and by the plaintiff,that under these circumstances, and because of the granting of these extra privileges,he was not to be expected to pay anything for the board of Jenkins. These claims of defendants are denied by plaintiff. She claims that if it should appear from the evidence that the defendant did grant any privileges beyond what his contract with the husband required, they were of no great value, and that a reduction was made in the wages of her husband on account of such privileges. She also claimed that she and her husband gave defendant extra privileges beyond what the husband’s contract required, in the way of furnishing him meals when he was out at the farm; entertaining persons who came to the farm on business with the defendant, in giving him chickens, eggs, etc., in doing extra work by the husband, in the way of training horses, and perhaps other matters, for which no charges were made; and that the granting of extra privileges was mutual between the parties, and had nothing to do with the matters of boarding Jenkins.
This testimony was admitted by the court and is to be considered by you solely for the purpose of throwing whatever light it may on the question whether there was or was not a contract between the defendant and the plaintiff by which he agreed to pay her for boarding said JenKins.
You will carefully consider all the evidence as to these matters,and determine therefrom what the facts are. You will look 'to the evidence to ascertain what privileges were granted by defendant to the husband under the terms of the contract between them ; and what services the husband was required to perform under said contract; that is, determine from the evidence just what were the contract rights and duties of the parties. Then ascertain from the testimony what, if any, extra rights or privileges were granted on either hand beyond the contract obligations. And when you have ascertained what the real facts are in relation to these matters, you will give these facts such weight as to you seems proper in determining whether defendant did or did not expressly agree to pay plaintiff for the services claimed for in her petition; and if after carefully weighing and considering all the evidence in the case including the testimony of the parties and other witnesses and all the facts and circumstances in the evidence which may throw any light unon the questions, you find that the plaintiff hos failed to prove by a fair preponderance that the defendant entered into a contract with her to pay her for said services, then she cannot recover. But if plaintiff has shown by a fair preponderance of the whole evidence, that board, washing and mending, was furnished said Jenkins, and that he was at the time in the employment of the defendant and that the defendant did enter into a contraer with her to pay her for said boarding, etc., then if she had also shown that the comract between her and the defendant was made with the knowledge of her husband and that he consented thereto, and that she might have the pay for said services as her own, then she will be. entitled to recover the value of the services so rendered while said Jenkins was in the employment of defendant; unless you shall find in favor of defendant upon a question to which I shall now call your attention. It is claimed, as I understand it, that a claim for boarding Jenkins was made at the time of the fall settlement of 1890; that the plaintiff was present at the time and knew that such claims was made; that the matter was considered and talked over at the time by the parties in the presence of the plaintiff; and that after consideration and talking over the matter the claim for the board was abandoned or released with the knowledge and consent of said plaintiff, and that defendant there proceeded to settle in full with the husband of the plaintiff and to pay him the balance found due on such settlement. If all these facts are shown by the evidence the plaintiff would be precluded from now recovering upon such claim.
You have heard all the evidence bearing upon this question. You must weigh and consider this evidence and determine what the facts are. But on this point the burden would be upon the defendant to prove all the foregoing facts by fair preponderance of the evidence tefore he would be entitled to a verdict on this ground.
Gentlemen, yon have heard the evidence bearing upon all the issues arising in this case. In determining whether there was an express agreement between the plaintiff and the defendant by which he agreed to pay her for said services.and in determining whether the husband consented, that the plaintiff *302should have and receive in her own right the pay for said services, you have the right to take into consideration all the acts, conduct and declarations of the parties in connection with all the other evidence in the case which may throw any light upon these questions; and if you find that the plaintiff has failed to show by a fair preponderance of the evidence any fact essential to her right to recover, then your verdict will be for the defendant. But if you find that she has shown by such preponderance all the facts which she must prove to entitle her to recover and that the settlement as claimed by the defendant with the knowledge and consent of the-plaintiff is not shown, then you will proceed to determine from the evidence the length of time or number of weeks that said Jenkins was furnished with boarding, washing and mending while he was in the employ of the defendant,and the fair and reasonable value thereof.
Smith & Savage, for plaintiff in error.
Hayes & Swaine, for defendant in error.
These are questions of fact which you must determine from the testimony of the witnesses and from all the facts and cicrumstances in evidence in the case.
Recurring again to the matter of the con tract, the court instructs you that if you find from the evidence that the defendant did enter into a contract with plaintiff to pay her for boarding Jenkins,then you must determine when that contract was made; for the plaintiff, if you shall find in her favor, can only recover for the board,etc., furnished after the contract was made; unless it is shown that boarding has been furnished Jenkins before that time and when in the employment of the defendant, and that by the terms of said contract, such boarding was also to be paid for by the defendant.
[Note — Verdict and judgment for defendant, King. Reversed by circuit court for alleged error in those parts of the charge printed in italics. Judgment of the circuit court reversed by the supreme court and common pleas affirmed.]