Marx v. Hefner

• Decision Date: 18 May 1915
• Docket Number: Case Number: 3877
• Citation: 1915 OK 335,46 Okla. 453,149 P. 207
• Parties: MARX et al. v. HEFNER.
• Court: Oklahoma Supreme Court

1915 OK 335

149 P. 207

46 Okla. 453

MARX et al. v. HEFNER.

Case Number: 3877

Supreme Court of Oklahoma

Decided: May 18, 1915

Syllabus

¶0 1. EVIDENCE--Statutes--Laws of Foreign State. Where a contract is made in a foreign state, and the laws of such foreign state are relied upon for a recovery, such laws of the foreign state must be pleaded and proved.

2. CONTRACTS--Foreign Contract--What Law Governs. Where a contract in a foreign state is sought to be enforced in another state, the lex loci contractus controls the question of the legality of the contract, unless otherwise provided in the contract, and the laws of the state where the contract was made will be observed. In determining the rights and obligations of the parties, and effect given thereto, unless such foreign laws are irreconcilable with the local laws, or in conflict with the established policy of the enforcing state, provided that such laws of the foreign state are pleaded and proved.

3. STATUTES--Construction of Statutes Extending Over Indian Territory--Subsequent Decisions. A decision of the Supreme Court of Arkansas, rendered since the laws of Arkansas were extended over the Indian Territory, where in direct conflict with the settled law of this state, "is not even persuasive."

4. EVIDENCE--Laws of Foreign State--Pleading and Proof--Presumption. Where a contract, made in a foreign state, is sought to be enforced in this state, unless the laws of the foreign state be pleaded and proved, it will be presumed that the laws governing the rights of the parties under such contract are the same as the laws of this state.

5. EVIDENCE--Statutes--Laws of Foreign State--Pleading. The laws of Arkansas, which were extended over the Indian Territory, are in force in this state as to rights arising under contracts entered into in the Indian Territory prior to statehood, and said laws of Arkansas need not be pleaded or proved.

6. INFANTS--"Necessary" Expenses--Attorney's Fee. Neither under an action upon an express contract, nor upon a quantum meruit, can a recovery be had against a minor in an action at law for an attorney's fee for legal services rendered in behalf of a minor in relation to his property, without the intervention of a legal guardian, as such legal services cannot be classed as a "necessary," under the meaning of section 886, Rev. Laws 1910.

7. INFANTS--Action Against--Petition--Sufficiency. A petition which seeks a recovery against a minor for legal services rendered in regard to his estate upon an express contract, or upon a quantum meruit, based upon a contract made in a foreign state, which does not plead the lex loci contractus of the contract, showing such services are classed as a "necessary," does not state a cause of action.

I. R. Mason, for plaintiffs in error.

Samuel W. Hayes and C. B. Kendrick and S. M. Davis and R. A. Hefner, for defendant in error.

COLLIER, C.

¶1 Motion is made by plaintiff to dismiss this cause, upon the ground:

"That defendants' brief does not contain an abstract, setting forth the material parts of the pleadings, facts, and documents upon which the case was tried, sufficient to authorize the court to decide this case without reference to the case-made."

¶2 This motion has received at our hands the most careful consideration; but, under the liberal construction as to procedure in this state, we feel that the benefit of any doubt as to the sufficiency of the presentation of the assignments of error should be given to defendant, said motion overruled, and the cause considerable upon its merits. It is averred in the petition that, when the contract sued upon was entered into, plaintiffs were residents of the state of Texas, and that defendants were residents of the state of Mississippi. A copy of the contract, attached to the petition as an exhibit, purports that said contract was executed in Texas, but neither the laws of Mississippi nor the laws of Texas are pleaded in the petition to show that a recovery can be had against a minor for attorney's fees, for service rendered in behalf of a minor in relation to his property, without the intervention of a guardian. Of course, if the laws of Arkansas, which were extended over the Indian Territory, authorized a recovery against a minor for attorney's fees for services rendered him in relation to his property, upon a legal contract entered into prior to statehood, it would not be necessary to plead such laws of Arkansas, if the contract sued upon was an Indian Territory contract, as the laws of Arkansas were extended over the Indian Territory. Section 1 of the Schedule to the Constitution provides that:

"No existing rights, actions, suits, proceedings, contracts, or claims shall be affected by the change in the forms of government, but all shall continue as if no change in the forms of government had taken place."

¶3 The purpose of this section of the Schedule is to preserve all rights already accrued, either in action, or capable of being enforced by the ordinary remedies provided for this purpose, as effectively as if the Constitution had not been adopted. But we do not find any allegation in the petition authorizing us to hold that the contract sued upon in this action was an Indian Territory contract. However, if the petition in this case does contain any averments from which it could be held that the...