Isaacs v. Deutsch

• Decision Date: 29 April 1955
• Citation: 80 So.2d 657,52 A.L.R.2d 1118
• Parties: Gertrude L. ISAACS, as Executrix of the Estate of Edward McClosky, Deceased, Appellant, v. Fay DEUTSCH, formerly known as Freda McClosky, Appellee.
• Court: Florida Supreme Court

Page 657

80 So.2d 657

52 A.L.R.2d 1118

Gertrude L. ISAACS, as Executrix of the Estate of Edward McClosky, Deceased, Appellant, v. Fay DEUTSCH, formerly known as Freda McClosky, Appellee.

Supreme Court of Florida, En Banc.

April 29, 1955.

Rehearing Denied June 20, 1955.

Buckley, Windle & Bland, Fort Lauderdale, for appellant.

Irwin J. Block, Miami, for appellee.

ROBERTS, Justice.

The plaintiff filed suit in the court below against the defendant, as executrix of the estate of Edward McClosky, deceased, to recover on a contract executed in 1928 by the plaintiff and the defendant's decedent, and the defendant has appealed from an adverse judgment.

The contract sued upon provided that in consideration of the payment of $50 and the promise of the decedent to pay $15 per week, commencing March 10, 1928, to the plaintiff for the support and maintenance of the minor child of the parties, the plaintiff surrendered any and all claims which she might have had against the decedent by reason of a former relationship of husband and wife or otherwise which existed between the parties. Only a few payments were made under the agreement. The parties were divorced at a time not shown by the record. The minor child attained his majority in 1947, and the decedent died in 1952. The suit on the contract was filed in 1953, seeking to recover from the decedent's estate the total principal amount of $14,000, representing payments accruing during the period of time from 1929 to 1947. It was alleged that the decedent had, in the years 1946 to 1950, acknowledged the debt and promised to pay it. The defense of the statute of limitations was pleaded, to which the plaintiff replied that the defendant was estopped from raising the defense of the statute and that the decedent had been out of the state for a portion of the time covered by the contract.

The lower court, at the close of all the evidence, directed the jury to return a verdict in favor of plaintiff in the amount of $14,000, basing his ruling on the fact that the contract 'was a continuing obligation, that the right to sue for the entire business commenced when this man reached his majority, and it was tolled when he (the decedent) died * * *.' (Emphasis added.)

The only point which this court is asked to decide is the question of when the statute of limitations, Section 95.11(3), Fla.Stat., F.S.A., began to run on the payments due and unpaid under the contract. The defendant's position is that it began to run at the time each weekly payment was due thereunder, so that the liability of the decedent's estate is limited to unpaid installments which fell due within five years next preceding the death of the decedent and prior to the time that the minor child became twenty-one years of age. The plaintiff's contention is that the contract was a continuing obligation upon which the statute of limitations first began to run on all the unpaid weekly payments at the date the son attained his majority, as held by the lower court. This court has not heretofore been called upon to decide this question.

There can be no doubt that the obligation of the father to support his minor children is a 'continuing' one, as contended by plaintiff. It exists irrespective of a divorce decree awarding their custody to the mother. Bezanilla v. Bezanilla, Fla., 1953, 65 So.2d 754. It may be enforced by the courts in a manner incosistent with a contractual obligation such as that assumed by the father in the instant case. Nelson on Divorce and Annulment, 2d Ed., Sec. 15.58, p. 264. It may form the basis of a quasi-contract, implied by law, to compel the father to pay for the support and maintenance of his minor child by a third party, or by the mother after a divorce from the father, Ibid., Sec. 15.60, p. 266, and is sufficient consideration for an express contract to do the same. But the fact that the legal obligation is a continuing one is not, in our opinion, decisive of the precise question here presented. We are not here concerned with enforcing the father's obligation to support his children in the future; the question here has to do with the collection of a debt arising out of a contractual obligation assumed by the father.

We have noted the cases cited by plaintiff in which it has been held that, as to an express contract which provides in general terms for the support and maintenance of a child over an extended period of time without specifying any time for or rate of payment, the statute of limitations does not begin to run thereon until its termination, that is, the date the child reaches his majority. Myers v. Saltry, 1915, 163 Ky. 481, 173 S.W. 1138; Jackson v. Mull, 6 Wyo. 55, 42 P. 603, 604; Rockwood v. Stubenhofer, 1925, 119 Kan. 307, 239 P. 993; Gaskins v. Security-First Nat. Bank of Los Angeles, 30 Cal.App.2d 409, 86 P.2d 681; Carroll v. McCoy, 40 Iowa 38; Linneman v. Kirchner, 189 Iowa 336, 178 N.W. 899. The same rule has been applied to the quasi-contractual obligation to support which is implied by law. Knutson v. Haugen, 1934, 191 Minn. 420, 254 N.W. 464, 465. These decisions are apparently based on the 'continuing obligation' theory, as expressed by the Minnesota court in the Knutson case in the following language:

'Is there, then, any distinction so far as the statute of limitations is concerned between the quasi contractual obligation here under consideration and an expressed contract or one implied from conduct, where no terms are fixed as to the termination of the contract or as to the manner of payment. Certainly the law fixes no time for periodical payment or any time for the termination of the parent's obligation other than the majority of the monor. * * * No time being fixed for the payment or for the termination of the obligation until the majority of the minor was reached, any obligation imposed upon the defendant by law was not from month to month or year to year but was entire and continuing and terminated at majority. The plaintiff was at liberty to so treat it and defer action until then.'

A contrary view was taken in Haimes v. Schonwit, 268 App.Div. 652, 52 N.Y.S.2d 272, 275, in which the New York court allowed recovery only for those claims accruing within the statutory limitation period of six years, its reasons therefor being stated as follows:

'Whatever may be the implied due date of payment, it is binding on both parties. The basic principles of mutuality of obligation * * * precludes acceptance of the theory, advanced in some of the authorities of other states, that in the class of contracts with which we are presently concerned, the due date is not the same for the father as it is for the claimant, to the end that the latter may shift it to an early date, to obtain prompt payment, or to a later date, to avoid the Statute of Limitations, which ever better may subserve his interests. We disagree, therefore, with the determination in Knutson v. Haugen, 191 Minn. 420, 254 N.W. 464, in so far as it is therein held that one seeking recovery on an express contract to support a child during minority is afforded an option to declare payment due at any time during minority and that the same option prevails in the case of an implied contract to pay for such maintenance. Incidental to a father's general and continuing obligation to support his child, a promise imputed to him to reimburse another who assumes that obligation for him is to make immediate payment. * * *'

We are here dealing, however, with a contract entirely different from those with which the courts were concerned in the above cited cases. Here, the contract requires the father to pay a definite sum at specified intervals for the support of his child. There has been cited and our research has revealed only one case in which it has been held that the plaintiff could defer suit on all unpaid instalments due under such a contract, regardless of the limitation period, until the termination of the contract. In Wisniewski v. Wisniewski's Estate, 254 Mich. 663, 236 N.W. 899, a claim was made against the estate of the deceased father for the care and maintenance of his daughter for a ten-year period under an oral agreement by the deceased to pay $5 a week for her support. As against the contention that a portion of the claim was barred by the six-year limitation statute, the court said:

'Under the alleged contract the pay at the rate of $5 per week was for a continuous service which was rendered and not closed until within six years before presentation of the claim. The point is without merit. Carter v. Carter, 36 Mich. 207.'

Reference to Carter v. Carter, supra, shows that in that case the claim was upon a contract of employment in which no definite time of employment was fixed nor a price for the services agreed upon. In holding that the statute of limitations did not begin to run until the agreement was terminated the court said:

'The mutual assent for the continuance of the service, and the yielding of the service under the arrangement, ceased at the same time; and while in course of being rendered the service was upon the agreement and in performance of it, and was not the subject of account, and it afforded no accrued and matured right to be affected by the statute of limitations.' (Emphasis added.)

Thus, the court must have construed the agreement in the Wisniewski case as not requiring payment of the compensation, at the rate of $5 per week, until the termination of the entire contract. We do not so construe the contract with which we are here concerned. It unequivocally requires the payment of $15 'on the 10th day of March 1928, and a like sum of Fifteen Dollars ($15.00) payable each week thereafter for the support and maintenance of minor child.' In all other cases which have come to our attention, where an agreement for the support of minor children or other persons fixes a definite amount to be paid thereunder at stated intervals, it has been held that the cause of action accrues and the...