Forester v. Forester
| Decision Date | 17 October 1894 |
| Docket Number | 1,310 |
| Citation | 38 N.E. 426,10 Ind.App. 680 |
| Parties | FORESTER v. FORESTER |
| Court | Indiana Appellate Court |
From the Allen Superior Court.
Judgment affirmed, at the costs of appellant.
J. M Robinson, for appellant.
H Colerick and J. E. K. France, for appellee.
This is an action by a son against his father.
The complaint avers that the defendant is indebted to the plaintiff in the sum of $ 1,800, for work and labor done by the plaintiff as a farm hand and laborer upon the farm of the defendant during the period of twelve years; that "said services were rendered at the instance and request of, and for, the defendant, and upon his (defendant's) promise to pay therefor, and were fairly and reasonably worth $ 150 per year."
There was a trial by a jury, which resulted in a verdict and a judgment in favor of the appellee in the sum of $ 1,200. With their general verdict, the jury also returned answers to interrogatories propounded to it.
The appellant moved for judgment in his favor on the answers to the interrogatories. This motion was overruled, and this ruling is assigned as error.
There is no irreconcilable conflict between the general verdict and the answers. The motion was properly overruled.
A motion for a new trial was overruled, and this ruling is one of the errors assigned.
It is insisted that there is a fatal variance between the proof and the allegations of the complaint; that the complaint declares upon an express promise, while the proof, if it establishes any right to recover at all, shows an implied promise.
The appellant invokes the familiar rule that the recovery must be allegata et probata; that a party who bases his right of recovery upon the breach of a special contract can not recover upon proof of the breach of an implied contract. Armacost, Admr., v. Lindley, Admr., 116 Ind. 295, 19 N.E. 138.
The evidence tends to prove substantially these facts: At the time of the trial, the father was the owner of a farm consisting of eighty acres, situate about eight miles from Fort Wayne; between forty and fifty acres were cleared and under cultivation, and the remainder in woods. The farm was of the value of four or five thousand dollars. The father also owned cattle and stock, and implements of the value of from four to eight hundred dollars. The appellant was married three times. The appellee is a son by the first wife, who died leaving appellee, four years old, and a younger brother two years old. The father married again shortly after the death of his first wife. The younger brother died in 1878. The second wife died in 1890. Until her death she and the father and son lived together as members of the same family. After the death of the second wife the father and son remained on the farm as before until the father married again, when the son left. While the father and son lived upon the farm, they jointly farmed it, raising wheat, corn, oats and stock, and cleared and drained portions of it, and otherwise improved it. At the time of the trial the father was sixty-six years old and the son thirty-two. After attaining his majority, the son lived with his father for about twelve years. During a portion of the time the son assumed to and did control and manage the farm, sold the farm products and purchased with the proceeds farm machinery and implements. The father and son occasionally had altercations, and in some of them the father ordered the son to leave the farm. The father, on several occasions, while they were at work, stated to the son that the farm should be the son's when he got through with it, or after his death, and that in making improvements the son was working for himself. He also made similar statements to other persons. His explanation of these statements was that his son would take the farm as his heir after the death of himself and wife. Shortly after the last marriage the father and son had an altercation, and the son was compelled to leave the home.
The jury, in answer to interrogatories, found that there was an express promise on the part of the father to pay the son for the services performed; that such agreement was made at different times between them on the farm; that as pay for said services the son was to have, or take, the farm at the father's death; that the son, when he rendered such services, expected pay therefor, although he did not so inform his father; that the father expected to pay the son for such services; that it was the intention of both that the son should be compensated for his services by becoming the owner of the father's property and farm at his death.
The appellant's contention is that if the evidence and findings of the jury establish any right of recovery at all, it must be upon an implied, and not upon a special, contract, and that under the rule above stated there can be no recovery in this action at all.
The case of Wallace, Admr., v. Long, Guar., 105 Ind. 522, 5 N.E. 666, is relied upon in support of this position. In that case it appears that a husband and wife were childless, and that they took into their family a child of the age of seven years upon the agreement and understanding "that, if she would live with them during their lifetime, and until the death of both, and become and act * toward them as their child, and permit herself to be known and called as their child, * * * they would make her their heir, and that at their death, or at the death of the survivor of the two, they would will, bequeath and give her the entire estate of which they were possessed."
The claim was to recover the value of the entire estate, consisting of both real and personal property. The plaintiff had a verdict for $ 6,000, the value of the whole estate. The contract was held to be void as being within the statute of frauds, and the judgment was reversed, with instructions to sustain the motion for a new trial.
In the course of the opinion, this language is used:
"Where, therefore, services have been performed, or money paid, in consideration of property to be conveyed, if the contract is not enforcible by reason of the statute of frauds, the action is not on the special contract, but, in the case of services performed, the action is on a quantum meruit to recover the value of the services * * * In such a case, the value of the services performed, and not the value of the property agreed to be conveyed, is the measure of damages."
It is insisted that the contract proved is one that relates to acquiring title to real estate, and is void under the statute of frauds, and that there can be no recovery on a quantum meruit.
In Schaffner v. Kober, 2 Ind.App. 409, 28 N.E 871 (414), it is...
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