Hathaway v. Jones

• Decision Date: 12 March 1934
• Citation: 194 N.E. 37,48 Ohio App. 447
• Parties: Hathaway v. Jones Et Al.
• Court: Ohio Court of Appeals

194 N.E. 37

48 Ohio App. 447

Hathaway v. Jones Et Al.

Court of Appeals of Ohio

March 12, 1934

Statute of frauds - Oral agreement to convey or devise real and personal property - Personal services rendered decedent, not part performance, when - Key to, and possession of, premises sought - Not sufficient possession to remove bar of statute when - Evidence of will in plaintiff's favor, not memorandum in writing, when.

1. The performance of personal service under an oral agreement to convey or devise real estate and household goods in payment therefor is not such performance as to take the case out of the statute of frauds and require specific performance when the services which are performed are susceptible of being measured in money.

2. The fact that the decedent gave to the one performing such services a key to, and possession of, the premises sought not to the exclusion of decedent therefrom, is not sufficient to take the oral contract for personal services out of the operation of the statute of frauds.

3. Evidence of a will which contains no reference to such oral contract or to the reason for making a devise in favor of the one rendering such personal services, if it contained such devise, is not a sufficient written memorandum to remove the bar of the statute of frauds.

APPEAL:

Court of Appeals for Wood county.

Mr Benjamin F. James and Mr. Silas E. Hurin, for plaintiff. Messrs. Bowman & James, for defendants.

RICHARDS J. This action was tried on the fourth amended petition and is one brought to require specific performance of an oral contract made by Eugene Jones to transfer to the plaintiff lot No. 1057 in the city of Bowling Green, together with household goods and a certain automobile, in consideration that plaintiff would care for said Eugene Jones for the remainder of his life. The Common Pleas Court rendered a judgment and decree in favor of the defendants, from which the plaintiff appealed.

The pleading alleges that an oral agreement was made with Eugene Jones about January, 1928; that he died in October, 1932, and that plaintiff performed all the services named in the agreement during that period. She avers further that during that time she had full possession of the property and a key to the residence, and provided said Eugene Jones a good home therein, and that she made certain repairs on the premises.

The fourth amended petition and the evidence disclose that the value of the services contracted for was intended to be and was easily susceptible of being valued in money, and in such cases the principle of law is as stated in Newbold v Michael, 110 Ohio St. 588, 144 N.E. 715, that specific performance of an oral contract for services to be...