Hummel v. Hummel

• Decision Date: 04 May 1938
• Docket Number: 26700.
• Citation: 14 N.E.2d 923,133 Ohio St. 520
• Parties: HUMMEL v. HUMMEL et al.
• Court: Ohio Supreme Court

14 N.E.2d 923

133 Ohio St. 520

HUMMEL v. HUMMEL et al.

No. 26700.

Supreme Court of Ohio

May 4, 1938

Syllabus by the Court.

1. An oral contract which is incapable of being performed within a year of the making thereof is unenforceable by reason of the statute of frauds, section 8621, General Code; but where one party thereto fully performs on his part and the other contracting party, to his unjust enrichment, receives and refuses to pay over money which, under the unenforceable contract, he agreed to pay to the party who has fully performed, a quasi contract arises, upon which the performing party may maintain an action against the defaulting party for money had and received.

2. When A receives money for which he is liable to B on a quasi-contractual obligation and C, with full knowledge of the circumstances under which A received the money, acts jointly with A in causing the money to be deposited in a banking institution in a joint and survivorship account, and both A and C acting in conjunction continue to withhold the funds from B, B may recover against A and C jointly.

On January 5, 1935, Peter Hummel, Sr., began an action in the municipal court of Cincinnati, Ohio, against John Hummel and his wife, Elizabeth Hummel, seeking to recover for money had and received by the defendants to the use of the plaintiff. The total amount received by defendants consisted of $938.04 the proceeds of an insurance policy, and $62 in cash, making in all substantially $1,000. The trial resulted in a judgment in favor of the plaintiff against both defendants in the sum of $981, being the amount of $1,000 less $19 paid as interest as hereinafter set forth. Error was prosecuted to the court of common pleas of Hamilton county in which court judgment was reversed and final judgment entered for the defendants.

The Court of Appeals affirmed the judgment entered in the court of common pleas and this court allowed a motion to certify the record.

Bert H. Long and Nicholas Bauer, both of Cincinnati, for appellant.

Strasser Lillie & Schuessler and J. Aaron Meyer, all of Cincinnati, for appellees.

WILLIAMS Judge.

It is contended by the plaintiff that the court of common pleas committed prejudicial error in reversing the judgment of the municipal court and entering final judgment for defendants, John Hummel and Elizabeth Hummel.

There is considerable conflict in the evidence adduced but in determining the question presented it is only necessary to consider the evidence favorable to the plaintiff, Peter Hummel, Sr., and tending to support the allegations of the amended bill of particulars upon which the cause was tried in the municipal court. The plaintiff fully pleaded all the facts relating to the various transactions shown by the evidence. The judge in that court, who tried the cause without the intervention of a jury, made no separate finding of facts but only a general finding for the plaintiff; on this finding judgment was entered. The presumption is that the trial court did not err and it may therefore be assumed that the trial judge found all the issues of fact in favor of the plaintiff. If the facts favorable to him warranted a judgment in his favor, then the court of common pleas erred to his prejudice in entering final judgment for defendants. Therefore, this court will consider the evidence favorable to plaintiff to be true for the purpose of determining the question as to whether judgment should have been entered against him as a matter of law.

The evidence favorable to plaintiff and tending to prove the allegations of the amended bill of particulars may be summarized thus:

On December 28, 1914, the Metropolitan Life Insurance Company issued a nonparticipating 15-year endowment policy in the sum of $1,000 on the life of the defendant, John Hummel, plaintiff's son, then 23 years of age, in which Elizabeth Hummel, wife of Peter Hummel, Sr., and the mother of John Hummel, was named beneficiary. It should be observed that the mother of John Hummel bears the same name as his wife, who is joined as defendant. The policy had no cash surrender value until the end of the third year.

At the time the policy of insurance was taken out there was an oral agreement between the plaintiff and the defendant John Hummel that plaintiff and his wife, Elizabeth, should 'pay the premiums and get the money' on the policy. The policy remained in the possession of Peter Hummel and his wife until it matured and the semiannual premiums of $30.16 each, amounting in all to $904.80, were paid by them.

In 1918, a loan was made on the policy from the contracting insurance company and the proceeds of the loan were received by Elizabeth Hummel, the beneficiary, through a check made payable to and indorsed by both the beneficiary and the insured. When the policy matured on December 28, 1929, the company issued a check for the proceeds thereof amounting to $938.04, payable to the order of John Hummel, and delivered it to Peter Hummel, Sr., or to him and his wife.

About 1 week thereafter the plaintiff delivered the check to his son, John Hummel, with the understanding or agreement between them that the son would deposit it in the bank in his father's name. A few days later the father gave the son an additional sum of $62 with the further understanding that the money would be placed on deposit with the proceeds of the policy so that the total amount in the bank to the credit of the father would be $1,000. (The extra 4 cents appear to have been disregarded.) On direct examination the defendant Elizabeth Hummel, after referring to the check and the date of its receipt, testified: 'The next day we took it down and put in the bank.' On cross-examination she further testified:

'Q. And the check was put in the building association in you [your] and your husband's name? A. He put it in his name and later in my name.

'Q. Is it a joint survivor account? A. Yes.'

Some time after the check was turned over to the son, the father went to the son's home. Regarding this visit the father testified through an interpreter: 'He [plaintiff] asked her [meaning the son's wife] for his bank book and she went to the safe or cupboard and said 'Here it is' and held it in front of her and said 'Here's your book." However, the father saw the book at a distance only and did not learn what was written in it. On or about the 30th of May, 1930, the son paid the father $19 interest; but no interest was paid thereafter.

The plaintiff and his wife, Elizabeth Hummel, were divorced in February, 1930, and on division of the property the right to the proceeds of the policy was given or transferred to him by her. In fact she testified in the case that the proceeds belonged to him.

The foregoing constitutes all the evidence favorable to the plaintiff.

Peter Hummel, Sr., due to the transfer and assignment from his wife, was enabled to maintain the action as to all the moneys in his own name.

Was the oral contract between the father and mother on the one hand, and the son on the other, one that could not be performed within a year of the making thereof within the meaning of the statute of frauds, section 8621, General Code? If it was not capable of being performed within that period it was unenforceable. Heaton v. Eldridge & Higgins, 56 Ohio St. 87, 46 N.E. 638, 36 L.R.A. 817, 60 Am.St.Rep. 737.

The contract of insurance embodied in the policy was capable of being performed within 1 year for the reason that if the insured died while the policy was in force the proceeds would be payable forthwith to the beneficiary; but the oral contract which was wholly distinct and separate stands on a different footing. The latter was a bilateral contract, that is, it was characterized by mutual promises; in effect, it consisted of a promise on the part of the parents to pay the premiums on the policy, in consideration of a promise of the insured to pay over the proceeds of the policy when received by him. Since the policy had no cash surrender value until the end of the third year, the insured could not in any event receive the proceeds of the policy until the expiration of that period. There is always the chance that a party to a contract may die within a year; yet some contracts continue to subsist notwithstanding the demise of a party, and others do not. The personal existence of the insured was material to the oral contract. 2 Page on Contracts, 2254, § 1305. On his death the contract would terminate; in that event, it would be impossible to further perform on either side, and discharge from all obligations thereunder would necessarily follow. While death would excuse further payment of premiums by the parents, the payments of premiums up to the happening of that event could not be considered equivalent to full performance on their part. In the last analysis the parents could fully perform only by doing those things which would make the reciprocal promise of the son performable and obligatory. The son could not fulfill his promise until he received the proceeds of the policy, and his death would give the proceeds to the beneficiary. Therefore the death of the son within the year could not result in a full performance on the part of the parents. On the other hand the death would prevent full performance and so the contract is within the statute. Edwards & Sons v. Farve, 110 Miss. 864, 870, 71 So. 12.

The conclusion is inevitable that the oral contract was unenforceable because it was not capable of being performed within a year and that no action can be maintained thereon.

Since the amended bill of particulars pleaded all the facts very fully, the further question is presented whether there arose a quasi-contractual relation between the parents and the son upon which could be predicated...