Page:North Dakota Reports (vol. 48).pdf/786

 trial granted, because the court had told the jury that an implied contract resulted from furnishing board and lodging. Krapp v. Krapp, 181 N. W. 951. This court correctly held that as between relations an implied contract does not arise from common hospitalities in furnishing board and lodging. The presumptions of law are presumed to be found- ed on reason and common sense. The general rule is that a child is always welcome to the home of the parent and a parent to the home of a child, and in such cases the law does not imply a contract to pay. Custom makes the rules of law and the presumptions, and, when the reason of the rule ceases, so does the rule itself. This court has held that the reason of the rule ceases in the case of board and lodging of a menial character. Bergerson v. Mattern, 41 N. D. 404, 170 N. W. 877. And so the reason of the rule ceases when it appears that the ties of affection no longer exist and when, as in this case, it appears that the “old man” is rich and his children poor, when the “old man” sues his son, and makes him pay interest on money loaned, and treats him as a stranger, and when the “old man” dies, leaving $15,000 to one son and only $5 to the son who is the hushand of the plaintiff. When a father treats his son in that manner, the law does not presume that the son or son’s wife will give him free board, lodging, and washing.

The evidence clearly shows that the parties lived and treated each other as strangers, and on that showing the rules of law are the same as those which pertain to strangers. Hence, on the evidence given at the second trial, the plaintiff was entitled to recover on an implied promise; but that is of little consequence, because the jury was instructed that the plaintiff can only recover on an express contract to pay for the board and lodging, and the evidence does well sustain an express contract. J. L. Krapp testifies that the deceased said he would pay his board. He said he had paid $1 a day in Iowa, and that he would pay her (the plaintiff) $1 a day, and she agreed to that. That was about 10 days after he commenced boarding, and of course the agreement applied to the past as well as the present. And so Regina Krapp testified that at several times he spoke of paying his board. He said that, when his son paid him in full, he would pay his board money; and so he told the hired man that he was paying his board.

It is vain to urge that the express contract applied only to the first nine months. When a contract to pay for board and lodging is proven, the presumption is that it continues as long as the boarding continues.