Aiken v. Nogle

• Decision Date: 01 July 1891
• Citation: 27 P. 825,47 Kan. 96
• Parties: S. C. AIKEN, as Administrator of the estate of Elmira A. Aiken, deceased, v. EMMA C. NOGLE
• Court: Kansas Supreme Court

27 P. 825

47 Kan. 96

S. C. AIKEN, as Administrator of the estate of Elmira A. Aiken, deceased, v. EMMA C. NOGLE

Supreme Court of Kansas

July 1, 1891

Error from Wabaunsee District Court.

THIS was an action commenced by Emma C. Nogle against Mrs. Elmira A. Aiken, formerly Mrs. Elmira A. Giles, to recover $ 658.35 and interest thereon, for wages as a servant. The petition alleges that the wages were due upon a verbal contract made between the parties about July 1, 1881; that by the terms of the verbal contract the defendant promised to pay to the plaintiff $ 100 per year for each and every year she worked for her as a servant, and that the plaintiff worked for the defendant from about July 1, 1881, to February 6, 1888. The action was tried before the court with a jury at the June term, 1888, and the jury returned a verdict in favor of the plaintiff against Mrs. Aiken, for $ 256.31. The court overruled the motion by the defendant for a new trial, and rendered judgment in favor of the plaintiff below upon the verdict of the jury. After the case was brought here by proceedings in error, Mrs. Aiken died, and the action was revived in this court in the name of her administrator, S. C Aiken.

Judgment affirmed.

John T Bradley, and G. N. Elliott, for plaintiff in error.

J. F. Peffer, for defendant in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

The principal objections to the judgment are, that the contract between Emma Nogle and Mrs. Aiken, formerly Mrs. Giles, was verbal only, and therefore void under the statute of frauds because it was not to be performed within the space of one year from the making thereof; (§ 6, ch. 43, relating to frauds and perjuries;) and because the cause of action was barred long before it was commenced. The statute of frauds cannot avail in this case. The evidence shows that the verbal contract was made about July 23, 1881, after Emma Nogle became of age. She entered upon her performance of the contract at once, and therefore the contract for the first year was good, notwithstanding the statute, on the ground that performance was not only possible, but was actually completed within the year. If the contract could not, by reason of the statute of frauds, extend into the second year, the jury had the right to determine what was the understanding with which the parties entered upon the second and other years of employment. If Mrs. Aiken agreed to pay her servant $ 100 a year, commencing July 23, 1881, this was competent evidence from which to infer under what terms the parties continued their relations after that time until Emma ceased to work as a servant. The agreement between Emma Nogle and Mrs. Aiken may be construed as running for one year's service only, although it might have been, and really was, continued for several years upon like terms. In Sutphen v. Sutphen, 30 Kan. 510, 2 P. 100, it was decided that --

"A parol agreement which,...