Ormerod v. Dearinan. the effects of trials, whether to obtain a liberation of a prisoner by money to the jailor, or to obtain a pardon by the use of money directly or indirectly, must be void." Yet it is admittedly lawful for a governor to pardon, and for a citizen to solicit a pardon in a proper way. For a similar reason this court held in Clippenger v. Hepbaugh, 5 W. & S. 315, that a contract with an attorney, to procure or endeavor to procure the passage of an act of the legislature, is void, as being inconsistent with public policy and the integrity of our political institutions. Bowman v. Coffroth, 9 P. F. S. 19, was an action by an attorney to recover compensation for his services before the department in procuring the discharge of a drafted man. It was held that the contract was against public policy and void, whether the compensation for the services was fixed or contingent. Those referred to Other cases might be cited were it necessary. establish the principle that contracts which have for their subjectmatter any interference with the creation of laws or their due enforcement are against public policy and therefore void. The law, guards with jealousy every avenue to its courts of justice, and strikes down every thing in the shape of a contract which may afford a temptation to interfere with its due administration. That, the case in hand comes within the principle referred to is too plain. for argument. The defendant may have rendered some professional services to the plaintiff for which he would be entitled to compensation. But the contract which he sets up by way of de-. fense to the note being void as against public policy, the learned judge committed no error in directing a verdict for the plaintiff. This view of the case renders a discussion of the remaining assignments of error unnecessary. VOL. XLV-50 Judgment affirmed. Miller's Appeal. MILLER'S APPEAL. (100 Penn. St. 568.) Parent and child — contract for board — evidence. Where a son supports his decrepit parents in his own house, the presumption that it is gratuitous may be overcome by declarations by the parent of an intention to pay; but the parent's declarations, not in the son's presence, cannot be received to prove a contract more favorable for himself. A PPEAL from Orphans' Court. The opinion states the facts. Lemuel Todd and W. J. Shearer, for appellant. J. P. Rhodes and W. F. Sadler, for appellees. TRUNKEY, J. Implied contracts are such as reason and justice dictate, and which the law presumes from the relations and circumstances of the parties. Nothing is better settled than that the performance and receipt of services, or the furnishing of board, raises an implied assumpsit by the one who receives to compensate the other, yet this implication may be rebutted by proof of facts which repel the idea of a contract. Ordinarily parents and children do not expect to pay or receive payment for acts of kindness to each other, nor do other members of a family. For services rendered by members of a family to each other no promise is implied for remuneration, because they were not performed in the expectation, by either party, that pecuniary compensation would be made or demanded. No action can be maintained for such services in the absence of an express contract or engagement to pay for them. Updike v. Titus, 2 Beasly, 151; Smith v. Milligan, 43 Penn. St. 107; Butler v. Slam, 50 id. 456; Douglas' Appeal, 82 id. 169. Frequently, it has been said that "relationship, either by consanguinity or affinity, is a fact which tends to rebut the presumption which the law raises, that a promise to pay is intended when personal services are rendered. But alone it does not overcome that presumption except in the case of parent and child. In all other cases there must be evidence beyond the relationship that the creation of no debt was intended." The nearer the relationship, the less expecta Miller's Appeal. tion of payment, and greater strictness of proof to overcome the presumption. And when the parties are members of the same family the relationship excludes the implication of a promise. An instance of such exclusion is Duffey v. Duffey, 44 Penn. St. 399. Between parent and child the rule is, that there can be no recovery for service, boarding, or the like, in the absence of an express contract to pay therefor. The degree of proof to establish it cannot be the same in all cases. Nor is a contract for the payment of money for services or goods subject to the same rules respecting its proof as are applied to oral contracts for the conveyance or devise of land by a father to his son, as was the case in Harris v. Richey, 56 Penn. St. 395. When a son continues in his father's family and service after his majority, as before, he cannot recover wages, unless there be direct, clear and positive proof of an express contract. But there it has not been held essential that a witness was present with the parties face to face and heard their bargain. However, the circumstances require much stronger proof to establish a contract, than when the son had left his father's home, had done business for himself for years, and the father requested his return, care and service. In one case the circumstances are opposed to the idea of a contract, in the other they are corroborative of the father's declarations to third persons that he promised his son to pay him. The question always is, whether the parties contemplated payment and dealt with each other as debtor and creditor. A son who takes his decrepit parents into his house and supports them, is presumed to do so from the promptings of natural affection; no contract is implied. But if the father, before they go and afterward, repeatedly declares that he was to pay for their board, such declarations are evidence, and with the circumstances may be so direct and strong as to compel belief that he expressly agreed to pay for it. Loose declarations made to the son or others will not answer. That which may be only the expression of an intention to compensate is not evidence of an agreement to compensate. If he intended to pay and often said so to others, he was not bound. It must appear that he purposed to assume a legal obligation, capable of being enforced against him. A mother made a visit to her son in a distant State, remained some months and died there. She said that she intended to pay what was right for her boarding. It was held that "there is nothing like evidence of a contract in that." Lynn v. Lynn, 29 Penn. St. 369. Had she said that before she went she had agreed Miller's Appeal. to pay him for her boarding, there would have been evidence of a contract, and its sufficiency would have depended upon the proof of circumstances. A contract to pay for services or boarding may be express and binding, without all the terms being defined. The gist is an actual agreement to pay, and if the sum be not expressed it will be implied to be the value. A contract of this kind should not be confounded with a parol contract for sale of land. On April 1st, 1872, Adam Miller and his wife went to live with their son George and remained with him during their respective lives. The mother died in December, 1876, aged seventy-eight years, and the father in 1879, aged over eighty years. Before going to George's they had lived in a house of their own- their daughters had married and left them alone. The father was feeble, unable to cut his wood, and required some one to attend to him. His wife was able to do but little. One witness testified, "I knew old Mr. Miller. I had a conversation with him before he moved to George's. He says, 'I am moving to George's.' Says I, 'How is that?' He says, 'I might as well move there as hire somebody to take care of me and the old woman."" Another witness, who lived at George Miller's in 1872, testifies that soon after Adam Miller and his wife came there, he told her that he had it better here than when he lived by himself, had no care on his mind, and all he had to do, he said, "I have to pay our boarding." Numerous witnesses testify to his declarations at different times, "that he paid for his boarding," "that he was paying for his boarding," "we are paying our boarding," under circumstances showing that he was well aware of what he was saying. The evidence is convincing that Adam Miller expressly contracted to pay for the board of himself and wife, that George kindly and faithfully performed his part, and that the amount claimed is reasonable and justly due. This appears to be a meritorious claim which ought not to be defeated by application of any principle found necessary to protect estates of decedents from false demands. The learned and able auditor found that there was a contract by George to board his father and mother for the interest on a note for $900 and the services of the mother. That there was an actual contract is scarcely denied, and the exceptants were allowed to prove the declaration of Adam Miller, in absence of George, that the interest of the note was what he paid for the board. His declarations Coyle v. Commonwealth. tending to establish a contract were proved; it was not competent for those claiming under him to prove other declarations of a contract more favorable to himself. All the declarations agree that there was a contract; those proved by appellant show a liability for the value of the boarding, and those by the appellees, a liability for less than one-fourth the value. It is fallacious to say that the latter were admissible, because the party made them against his interest; and the second and third specifications of error are sustained. The findings of fact by the auditor, approved by the court below, are entitled to great weight and rarely are reversed. From the auditor's citation of authorities and reasoning, it is clear that if we agreed with him respecting the law of the evidence, we would also in his conclusion. Decree reversed, exceptions to the administrator's account dismissed and said account confirmed, and record remitted for further proceeding. Appellees to pay the costs of this appeal, Judgment reversed. COYLE V. COMMONWEALTH. (100 Penn. St. 573.) Criminal law — evidence of insanity — burden of proof. The defense of insanity in a criminal case must be affirmatively proved by fairly preponderating evidence to avail, but it need not be clearly preponderating.* Attempt at suicide is not by itself evidence of insanity. JONVICTION of murder. The opinion states the points. CONVICTION H. I. Fisher and W. C. Chapman, for plaintiff in error. MERCUR, J. It was clearly proved that Coyle killed Emily Myers. That fact is admitted. The only defense set up is that he was insane at the time. * See O'Connell v. People (87 N. Y. 377), 41 Am. Rep. 379. |