Price v. Felumlee

• Decision Date: 14 September 1938
• Docket Number: 4648.
• Citation: 19 N.E.2d 290,60 Ohio App. 34
• Parties: PRICE v. FELUMLEE.
• Court: Ohio Court of Appeals

19 N.E.2d 290

60 Ohio App. 34

PRICE v. FELUMLEE.

No. 4648.

Court of Appeals of Ohio, Fifth District, Licking.

September 14, 1938

Syllabus by the Court.

The provision of the Statute of Frauds, Section 8621, General Code, that 'no action shall be brought whereby to charge the defendant * * * upon an agreement that is not to be performed within one year from the making thereof; unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing * * *' has no application to a situation where the contract has been fully performed, except the adjustment of expenses and profits arising from the transaction.

Yearick & Hughes, of Newark, for appellant.

Fitzgibbon Black & Fitzgibbon, of Newark, for appellee.

MONTGOMERY Presiding Judge.

The origin of this controversy was a horse trade. The element of chance was outstanding. The extent of the ensuing profit was probably not anticipated. Since it seems to have been pronounced, this litigation has ensued. Reduced to its simplest terms, the question is: Shall all the profit enure solely to the appellant, or shall it be divided between the parties? What was the contract?

The appellee was the owner of a racing mare, Queen Abbie, of whom it was testified by the witness, Smart, a horse trainer and driver, that 'we had about raced her out.' The appellant was the owner of a young racing mare Tod Mc, whose career, if any, lay in the future, and not in the past.

A trade of these mares was engineered, largely by Smart, and the agreement was made verbally by the parties in the presence of Smart. He testified that 'Mr. Price said that he would consider trading Queen Abbie for his mare, if he could have a half interest in the first colt. And that is the way it was started. And we went out to Mr. Felumlee's place, Mr. Price and I, and traded for the mare under those conditions.'

That such was the agreement is substantiated by the great weight of the evidence, and the judgment of the trial court finding on behalf of the plaintiff, as it did, was not against the manifest weight of the evidence.

The secord year after the exchange, the mare, Queen Abbie, was bred through arrangements made by Price. A valuable colt resulted. Felumlee kept and cared for the colt, and near the expiration of the second year Price demanded an accounting, which was refused. The latter then filed his petition in the Common Pleas Court in which he averred in substance the facts herein detailed. The prayer of the petition was in the nature of a demand for an accounting and was for general equitable relief.

The trial court in his decree found that $150 was the proportionate reasonable cost and expense of rearing the colt and ordered that, upon...