Longhofer v. Herbel

• Decision Date: 05 November 1910
• Docket Number: 16,324
• Citation: 111 P. 483,83 Kan. 278
• Parties: GOTTFRIED LONGHOFER, a Minor, etc., Appellee, v. DAVID HERBEL, Appellant
• Court: Kansas Supreme Court

111 P. 483

83 Kan. 278

GOTTFRIED LONGHOFER, a Minor, etc., Appellee, v. DAVID HERBEL, Appellant

No. 16,324

Supreme Court of Kansas

November 5, 1910

Decided July, 1910.

Appeal from Russell district court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. LIMITATION OF ACTIONS--Money Loaned for Indefinite Period--Accrual of Action--Demand. Where a loan is made with the understanding that the borrower is to use the money for some considerable but indefinite time, and until its return is requested, the statute of limitations does not run against an action for its recovery until payment has been demanded.

2. STATUTE OF FRAUDS--Oral Agreement in Consideration of Marriage--Time of Performance--Implied Contract to Pay Child for Services. In an action for the value of services performed by a minor for his stepfather proof of an oral agreement to pay for them may establish a right to recover by overthrowing the presumption that they were rendered by reason of the relation of the parties, notwithstanding the contract itself may be unenforceable under the statute of frauds because made upon consideration of marriage and not to be performed within a year.

George W. Holland, W. S. Roark, Lee Monroe, and George A. Kline, for the appellant.

L. B. Beardsley, for the appellee.

OPINION

MASON, J.:

Gottfried Longhofer, a minor, sued his stepfather upon three causes of action, the first based upon what was in effect a loan of money, the second upon a contract to pay for his services, and the third upon the conversion of personal property. He recovered judgment upon each, and the defendant appeals.

The appellant claims that the first count was barred by the statute of limitations, because action had accrued thereon in favor of trustees who represented the plaintiff immediately upon the making of the loan, inasmuch as the jury found that it was payable upon demand. The usual rule is that notes or similar obligations payable in terms "on demand" are deemed to be due at once, and that the statute begins to run against them without demand. (25 Cyc. 1100.) Where, however, the understanding of the parties is that one of them is to use the funds of the other for some considerable and indefinite period, and until repayment is requested, the continual retention of the money is permissive and rightful until demand is made, and no right of action accrues until that time.

"If it appears that the money or claim which is the subject of the contract is to be paid on demand in fact, the statute will not begin to run until an actual demand has been made." (25 Cyc. 1209.)

(See, also, 25 Cyc. 1202; 19 A. & E. Encycl. of L. 198.)

Under all the evidence the finding of the jury may fairly be regarded as meaning that the plaintiff's money was to be used by the defendant until called for.

The jury found, upon sufficient evidence, that the defendant had orally promised the plaintiff's mother, as an inducement to their marriage, that he would pay her son wages for such services as he should render after reaching the age of thirteen years. The appellant contends that the promise is not enforceable because of the statute of frauds, which provides that no action shall be brought to charge any person upon any oral agreement made upon consideration of marriage or not to be performed within a year. (Laws 1905, ch. 266, § 1, Gen. Stat. 1909, § 3838.) Under somewhat similar circumstances this court has held that an oral contract may be taken out of the statute by the rendition and acceptance of services under it. (Heery v. Reed, 80 Kan. 380, 102 P. 846, and cases there cited.) The usual rule is that the law implies an agreement to pay...