Mar. 1902.] Opinion of the Court HADLEY, J. fied that the only payment ever made on account of her services was a payment of $30 made just as she was leaving home, after she had quit rendering services; and further, that she never asked for payment before. She alleges that her services were reasonably worth $25 per month, in addition to her board and lodging, and that the whole thereof is unpaid, except said sum of $30. She brought this suit to recover said balance, and demands judgment in the sum of $1,982.50. The defense is that the respondent is the sister of appellant and lived with appellant as a member of his family, with no agreement to pay for her services, and with no expectation that she should be compensated therefor. The statute of limitations is also interposed as a defense. The cause was tried by a jury and a verdict returned for respondent in the sum of $1,982.50. Appellant moved for a new trial, which was overruled; and thereafter judgment was entered upon the verdict of the jury for the full amount thereof, together with interest and costs. From said judgment his appeal is taken. It is assigned as error that the court sustained the demurrer of respondent to appellant's plea of the statute of limitations, and admitted testimony as to services rendered prior to three years before the commencement of the action. This assignment raises the question of the application of the statute of limitations to a contract of employment for an indefinite time, when no time for payment has been specified. We are aware that there is conflict of authority upon this subject, and the authorities cited by appellant are to the effect that, if the hiring can be regarded from year to year, the services for each year should be treated as a separate item and the statute applied accordingly, or, if there is anything to make it appear that the hiring may have been from month to month, each month should be so Opinion of the Court - HADLEY, J. [28 Wash. regarded. However, in Ah How v. Furth, 13 Wash. 550 (43 Pac. 639), this court announced a different rule. In that case the services were rendered under a contract of employment for an indefinite period. The services continued for a number of years, and some payments were made meanwhile. It is true, the trial court in that case found that at no time prior to the beginning of the suit did a period of three years elapse between the dates of payments or credits; but in its interpretation of the contract and the statute of limitations as applied thereto, this court said, at page 552: "We think that the contract of service was a continuous one, and that the statute of limitations did not begin to run until the completion of the service." The authorities there cited sustain the rule announced, and are as follows: Carter v. Carter, 36 Mich. 207; Grave v. Pemberton, 3 Ind. App. 71 (29 N. E. 177); Knight v. Knight, 6 Ind. App. 268 (33 N. E. 456); Taggart v. Tevanny, 1 Ind. App. 339 (27 N. E. 511). In addition to the above, respondent cites Jackson v. Mull, 6 Wyo. 55 (42 Pac. 603), which is also in point. The rule having been announced in Ah How v. Furth, supra, and being sustained by authority, we do not deem it wise to depart therefrom. The contract alleged in this case was for an indefinite time, and no time of payment was specified. The services were therefore continuous, within the above rule, and the statute did not begin to run until the services ended. The court therefore did not err in overruling the demurrer and in admitting the testimony. It is next assigned that the court erred in permitting respondent to amend her complaint at the close of the testimony. Immediately after the close of the testimony the following occurred: Mar. 1902.] Opinion of the Court. HADLEY, J. "Mr. Allen: If your honor please, plaintiff asks leave of court to amend her complaint by adding to paragraph 1 the following: For which said work and labor the defendant promised and agreed to pay the plaintiff, which said promise was made prior to plaintiff performing said work and labor.' That said amendment simply conforms to the proof introduced in this case.' Appellant objected to the amendment being made, but the court permitted it, and appellant thereupon excepted. In Hulbert v. Brackett, 8 Wash. 438 (36 Pac. 264), an application was made to amend the complaint during the introduction of the testimony. The court held that it was within the discretion of the trial. court to permit the amendment; that no different answer was required, and the defendant was in no way taken by surprise. In this case appellant's answer already filed negatived specifically the truth of the matters set up in the amendment, and evidence upon both sides had been directed to that issue. There could have been no surprise. The most that appellant could have asked would have been for time to introduce further testimony, which was not done. To the same effect are McDonough v. Great Northern Ry. Co., 15 Wash. 244 (46 Pac. 334), and Allend v. Spokane Falls & Northern Ry. Co., 21 Wash. 324 (58 Pac. 244). The court did not commit error in permitting the amendment under the circumstances. It is assigned as error that the court refused to permit respondent to answer on cross-examination whether the work she did by way of milking cows while a renter had charge of them was voluntary on her part, and not required by appellant. We think it was not material. She had already testified that the renter was supposed to do the milking. The following had appeared in her examination: Opinion of the Court- HADLEY, J. [28 Wash. "Question: He was supposed to do the milking, was he not? Answer: The renter? Q. Yes, the renter. A. Yes, sir. Q. You would go there voluntarily and help him milk? A. When I didn't have anything else to do, I would go and help milk." We think it had already sufficiently appeared that at such times as she was milking cows which were under the renter's charge she was not working for appellant, or upon his request. The point must have been sufficiently clear to the jury without further examination on that line, and we think the court did not err in excluding the further testimony sought. It is assigned as error that the court instructed the jury to the effect that it is not necessary, in order that respondent may recover, that she shall show an expressed promise to pay for the services, but that it is sufficient for her to show from facts and circumstances that there was an understanding and agreement. One instruction, which, in substance, embodies the above statement of law, concludes as follows: "She may show an implied promise on the part of the defendant to pay for such services." It is urged that the instruction, in effect, told the jury that no agreement or understanding was necessary, and that she could recover upon an implied contract in law following from the mere fact that the services were rendered. The court did not say, however, that no contract or understanding is necessary, but that no "expressed promise to pay" is necessary, if from facts and circumstances it is shown that there was an agreement. The first quoted words above do not say that she can recover upon a mere implied contract, but that she may "show an implied promise." The reasonable interpretation of the words, when considered in connection with the entire instruction, together with others given, is that she may show facts and circumstances Mar. 1902.] Opinion of the Court - HADLEY, J. from which the implication or inference may follow that there was an agreement. We think the instructions, taken as a whole, must have made the point clear to the jury that there could be no recovery without an agree ment or understanding that respondent was to be paid for her services, and that she could not recover from the mere fact that the services were rendered and accepted. In fact, the court so stated to the jury in words as direct and plain as could have been used. They were told, in effect, that it was for the jury to say whether an understanding or agreement existed by reason of the facts and circumstances and the acts and conversations of appellant. Appellant contends that respondent must show an express contract before she can recover; that is to say, a direct and positive agreement, in terms, to pay for the services rendered. The authorities are not altogether harmonious upon this subject. It is a rule universally recognized that, when the services are rendered by one who is a member of the family of the employer, the law will not imply a contract to pay for the services from the mere fact that they have been rendered upon the one hand and benefits thereof received upon the other, as in the case of strangers. This is also held to be the rule when there is no actual blood relationship existing between the parties, provided they sustain to each other the ordinary relations of members of the same family. It has been held, however, that when the family relationship exists it is not necessary to prove the terms of a direct and positive contract, but that proof may be made of words, acts, and conduct of the parties, and circumstances from which the inference may follow that there was an understanding that the services were not to be rendered gratuitously; that when such is the case there is a contract upon which the value of the services |