Marks v. Wooster

• Decision Date: 04 December 1917
• Docket Number: No. 14802.,14802.
• Citation: 199 S.W. 446
• Parties: MARKS v. WOOSTER.
• Court: Missouri Court of Appeals

199 S.W. 446

MARKS v. WOOSTER.

No. 14802.

St. Louis Court of Appeals. Missouri.

December 4, 1917.

Rehearing Denied December 21, 1917.

Appeal from St. Louis Circuit Court; Kent Koerner, Judge.

"Not to be officially published."

Action by Laura J. Marks against J. P. Wooster. Judgment for plaintiff, and defendant appeals. Affirmed.

John A. Blevins, of St. Louis, for appellant. Sacks, McClarin & Carstens, of St. Louis, for respondent.

ALLEN, J.

On January 3, 1899, the parties to this action were husband and wife, but had separated and were living apart in the city of St. Louis. On that day they entered into the following written agreement respecting the custody, support, and education of their minor son, Roy Francis Wooster, then between four and five years of age, viz.:

"This agreement made the 3d day of January, 1899, between James P. Wooster and Laura J. Wooster, husband and wife, witnesseth: That the said parties having separated and there being no likelihood of a reconciliation and there being one minor male child alive of the marriage, whose name is Royal Francis Wooster, and it has been agreed between the said parties hereto, and it is hereby agreed that said minor child shall remain in the care and custody of said Laura J. Wooster so long as she clothes, feeds and educates it properly and generally takes proper care of it, and the said James P. Wooster hereby agrees to contribute towards its support the sum of $10.00 every month until it reaches the age of eight years and after that until he reaches his majority the sum of $20.00 monthly, and this agreement shall not be held to purport to be an agreement consenting to a divorce."

The present action, instituted June 23, 1914, is one to recover for the alleged breach of said contract by defendant. The petition, after setting up the contract, alleges that plaintiff clothed, fed, educated, and "properly and generally" took care of the child mentioned in the contract, until he became 18 years of age and self-supporting; that defendant wholly failed to pay the sum of $20 per month, or any part thereof, after the child became 8 years of age, and failed during a portion of the prior period to pay the said sum of $10 per month. Judgment is prayed for $1,920.

The answer admits the execution of the contract, but alleges that defendant performed the same by contributing $10 per month toward the support, maintenance, and education of the child, until the latter reached the age of ten years, about August 1902, "at which time defendant repudiated said contract and demanded the custody of said minor child and declined and refused to make any further payments under said agreement, for the reason that the plaintiff, shortly after the making of the agreement aforesaid, married a man by the name of Emil Weis, who, with plaintiff's consent, required said minor child to work and pay for his own living and support, and because plaintiff failed to properly clothe, feed, educate and take care of said minor child, and refused to permit defendant to have the custody, care, and support of said child"; that after 1902 plaintiff made no demand on defendant for any payment under the contract until shortly prior to the suit; "that from the time said minor child was eight years of age, until he was fourteen years old, he supported, clothed, and educated himself by his labor for said Emil Weis, who required him to work for his support"; that after the child reached fourteen years of age he left plaintiff's care and custody and thereafter supported himself, "excepting the assistance furnished him from time to time by defendant." It is further alleged that plaintiff failed and neglected to support, maintain, educate, and care for the child, as required by the contract, and did not at any time expend therefor the sum of $20 per month or any other sum after the child became eight years of age; and the answer also invokes the bar of the statute of limitations, requiring certain actions to be commenced within ten years from the accrual thereof.

The reply is conventional.

The evidence shows that, after the execution of the contract the boy, Roy Francis Wooster, lived with his mother and was supported by her, well fed, clothed, and cared for, until on or about September 16, 1908, when, being then between 14 and 15 years of age, he was allowed to go to California, where he remained for a period of time; and it appears that during the period when he thus lived with his mother he was regularly sent to school and received a common school education. The father, defendant herein, paid plaintiff the installments of $10 per month until his said son became 8 years of age; but it is conceded that he then ceased to make payments under the contract, and paid none of the installments of $20 per month which he agreed to pay. Defendant testified that he purchased certain clothing for the boy; but the latter, now a young man, denied this, and testified that his father gave him nothing beyond a basket as a present; that he seldom saw his father while he lived with plaintiff, and did not see him at all during a period of five years.

In February, 1899, a little more than a year after the execution of the contract sued upon, defendant obtained a decree of divorce from plaintiff, the decree making no provision as to the custody of the child; and within a few months thereafter plaintiff entered into a common-law marriage with one Weis. It is said that two marriage licenses were obtained, and that plaintiff insisted upon a marriage ceremony; but Weis refused to have it performed. Plaintiff and Weis lived together in the city of St. Louis for some years; the boy, Roy Francis Wooster, living with them. Weis conducted a wood and coal yard, a small business; and the boy testified that he did "chores" about the place and chopped wood, after school hours, and occasionally, but infrequently, delivered a "jag" of coal. Plaintiff and Weis were living apart at the time of the trial below, and plaintiff had assumed her maiden name, in which she sues. And the evidence shows that defendant has twice married since obtaining the decree mentioned, his second wife having obtained a divorce from him.

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