Myers v. Saltry

• Decision Date: 11 March 1915
• Citation: 163 Ky. 481,173 S.W. 1138
• Parties: MYERS v. SALTRY.
• Court: Kentucky Court of Appeals

173 S.W. 1138

163 Ky. 481

MYERS v. SALTRY.

Court of Appeals of Kentucky.

March 11, 1915

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Third Division.

Action by Mrs. Helen M. Saltry against W. G. Myers. From a judgment for plaintiff, defendant appeals. Affirmed.

R. A McDowell and Matt O'Doherty, both of Louisville, for appellant.

R. C Kinkead, of Louisville, for appellee.

NUNN J.

This record comes to us without a transcript of the evidence. In such cases, the only question to be determined is whether the pleadings support the judgment. Bradford v. Jones, 150 Ky. 355, 150 S.W. 387; Duker's Adm'r v. Kaelin, 90 S.W. 959, 28 Ky. Law Rep. 900; Anheuser-Busch Brewing Co. v. Seelbach, 40 S.W. 671, 19 Ky. Law Rep. 375; Louisville Bridge Co. v. Neafus, 110 Ky. 571, 62 S.W. 2, 63 S.W. 600, 23 Ky. Law Rep. 185.

This court will presume that the omitted portions of the record will support the judgment. Jones v. Jackson, 16 S.W. 458, 13 Ky. Law Rep. 253; Hackney v. Hoover, 67 S.W. 48, 23 Ky. Law Rep. 2061; Sanson v. Connolly, 141 Ky. 120, 132 S.W. 159; McKee v. Stein, 91 Ky. 240, 16 S.W. 583, 13 Ky. Law Rep. 49.

We gather from the briefs that the plaintiff, the appellee here, is the sister-in-law of the appellant, Myers. In 1901, the parties were living in Scranton, Pa. Domestic troubles arose between Myers and his wife, and they separated. Their infant son, Floyd Myers, then about five years old, came into the hands of Mrs. Saltry, the appellee. Her husband was a miner, and shortly afterwards they moved to Butte, Mont., where he worked in the mines. The appellant moved to Louisville, and married again, and has continued to reside there.

The pleadings disclose this state of case: Mrs. Saltry filed a suit in the Jefferson circuit court against Myers, in which she alleged that in August, 1901, he placed his infant son, Floyd Myers, in her care and custody--

"and requested this plaintiff to rear, maintain, and educate said child, and to expend such amounts as might be necessary for such purposes, agreeing and promising to reimburse this plaintiff to the extent of any and all such expenditures. This plaintiff further states that she took said child at said time and has retained the custody of him from said time until December, 1912; that she from her own means provided said child with a home, maintained, clothed, and educated him, nursed and cared for him in sickness with the faithfulness and affection of a mother; that said boy is now past the age of 16 years; and that on the 27th day of December, 1912, she brought said boy from her home in Butte, Mont., for such purpose, surrendered and returned him to his father, the said defendant, William C. Myers, who received him; and that the said Floyd Myers is now living with his father, the defendant. She states that she has during said time expended in the care, maintenance, and education of said child the sum of $4,974, and that defendant is indebted to her in said sum; that since the delivery of said boy to the defendant she has rendered to the defendant a full statement of said expenditures and demanded payment thereof, but the defendant has refused and still refuses to pay the same."

A statement of the expenditures is filed with the petition as an exhibit, and she concludes with a prayer for the recovery of the amount above mentioned. The court overruled motion to make the petition and the statement of account more specific, and also overruled demurrer. The defendant answered in three paragraphs. The first was a traverse, the second was a plea of limitation, and the third relied upon the statute of frauds. Verdict and judgment was rendered in appellee's favor for the amount sued for.

The statement of account filed with the petition, we believe, was sufficiently specific to notify the defendant of the character of claim made, and to enable him to intelligently defend. The court did not err in overruling the demurrer. While the petition does not allege that the expenditures were made for necessaries, it shows the expenditures were necessarily made in fulfillment of the contract.

If, in fact, the contract was oral, it would not be within the statute of frauds requiring contracts to be in writing which are not to be performed in a year. While this contract for rearing and maintaining the child might continue for years--that is, until the child's maturity--yet it might be terminated within a year. The child might die within a year, and in such event the contract would be terminated.

"If the performance of a contract depends upon a contingency which may happen within a year, then it is not within the statute, although that contingency may not in fact happen until after the expiration of the year, and although the parties may not have expected that it would occur within that period. It is sufficient if a possibility of performance existed." Stowers v. Hollis, 83 Ky. 548; Standard Oil Co. v. Denton, 70 S.W. 282, 24 Ky. Law Rep. 906; McDaniel v. Hutcherson, 136 Ky. 412, 124 S.W. 384; Whitley v. Whitley, 80 S.W. 825, 26 Ky. Law Rep. 134.

While the child could not receive a complete education within a year, still, had it died during the year, the plaintiff certainly would have been permitted to recover, pro tanto the expense incurred during that year for education. Of course, it was not contemplated by the parties that the contract would be completed within...