Rockwood v. Stubenhofer

• Decision Date: 10 October 1925
• Docket Number: 25,927
• Citation: 119 Kan. 307,239 P. 993
• Parties: W. F. ROCKWOOD, Appellee, v. WILLIAM STUBENHOFER, Appellant
• Court: Kansas Supreme Court

239 P. 993

119 Kan. 307

W. F. ROCKWOOD, Appellee, v. WILLIAM STUBENHOFER, Appellant

No. 25,927

Supreme Court of Kansas

October 10, 1925

Decided July, 1925.

Appeal from Chase district court; WILLIAM C. HARRIS, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

CONTRACTS--Oral Agreement to Care for Child--Limitation of Actions--Continuing Liability--Evidence. The proceedings in an action to recover on an express oral contract for compensation for rearing a child considered, and held: the action was legal and not equitable; the action was one to enforce a continuing liability and was tried on the proper theory; an instruction complained of was neither misleading nor prejudicial; error was not committed in refusing to submit special questions to the jury; the special findings returned by the jury were sustained by the evidence and were not conflicting; and the verdict was sustained by the evidence.

W. J Pirtle, of Council Grove, A. M. Harvey and Randal C. Harvey, both of Topeka, for the appellant.

R. M. Lee and W. E. Atchison, both of Topeka, for the appellee.

Burch J. Harvey, J., not sitting.

OPINION

BURCH, J.:

The action was one to recover on defendant's contract to pay for the rearing of his daughter. Plaintiff prevailed, and defendant appeals.

Defendant's wife died a few days after the child was born. Plaintiff's wife is defendant's sister. The petition pleaded an express oral contract, by the terms of which plaintiff agreed to take the child into his home and care and provide for her, and defendant agreed to pay plaintiff for support and maintenance of the child. Performance by plaintiff and nonperformance by defendant were duly alleged.

The answer denied that defendant made any agreement with plaintiff to pay for care and maintenance of the child, and alleged that, pursuant to a family conference in which plaintiff's wife expressed eagerness to take the child and raise her as her own, defendant left the child at plaintiff's home, with plaintiff's wife, who thereafter had care, custody and control of her; that when the child was left with plaintiff's wife there was no understanding or agreement that there was to be either charge or compensation for keeping her; that defendant understood, pursuant to the family conference, that plaintiff's wife was to keep and care for the child for the benefit to be gained from the child's companionship; that plaintiff's wife had no intention of charging defendant for rearing the child; and that plaintiff consented to and acquiesced in the arrangement whereby plaintiff's wife took the child. The answer further alleged that defendant refused to permit plaintiff's wife to adopt the child; that plaintiff and his wife alienated the child from her father, refused to permit defendant to have the child, and changed the child's name to Rockwood. The answer also pleaded the statute of limitations.

The evidence disclosed that a family conference was held at defendant's home after his wife's death, at which the child's future was discussed, and the child was taken to plaintiff's home. Afterward defendant went to plaintiff's home, and there discussed with plaintiff and his wife the subject of rearing the child. According to the recollection and mode of expression of the witnesses, various statements were made of the proposed terms on which the child was to be kept in plaintiff's home. Among them were statements by defendant that he would pay "all expenses," pay "every cent of support," pay "everything you have to spend for her," and that plaintiff should "get anything charged that you need and I will pay for it."

Plaintiff testified to the following definite offer and acceptance: Defendant said to plaintiff, "I want you to take Margaret and raise her and I will pay you for keeping her." Plaintiff replied, "All right; we will sure take good care of her." Defendant denied that he made the statements attributed to him, and denied making any statement having the effect of expressing obligation to pay anything for care, support or keeping of his child.

According to the testimony of both plaintiff and defendant, the subject of religious training was discussed in connection with the arrangement for rearing the child. Defendant testified he said to plaintiff's wife, "You must raise her a good Catholic, for my wife's sake." Plaintiff's wife replied, "I will do that." Plaintiff testified defendant requested that the little girl should be raised a Catholic, and plaintiff said he would do so to the best of his ability.

The evidence on behalf of plaintiff disclosed that he provided for and reared the child as if she had been his own. She was baptized in the Catholic church, received there her first religious instruction, and was taken to Catholic church. But when she was about thirteen years old an incident occurred which caused her to refuse to have further connection with that church. At school other children called her by the name Rockwood, and she accepted and afterward adopted that name. She was graduated from grade school, high school, and then from Washburn college. Plaintiff's wife did propose adoption of the child, but defendant would not consent. Plaintiff and his wife were not responsible for an estrangement which arose between the girl and her father. Important portions of the testimony on behalf of plaintiff were given by defendant's daughter. Proof of the value of plaintiff's services pursuant to the contract was duly made.

The court instructed the jury that there was a presumption of law which stood as evidence in the case, that such services as plaintiff rendered in rearing the child were rendered for love and affection, and without expectation of compensation; that plaintiff was obliged to overcome that presumption; and unless plaintiff proved an express contract for compensation for keeping the child he could not recover. Defendant's theory of the case, that he intrusted the child to his sister, who wanted to rear her, was duly stated, and the jury were advised that, if the arrangement for rearing the child were made with plaintiff's wife, plaintiff could not recover. Right of defendant to direct religious training of his child was stated, and it was left to the jury to determine whether training in the Catholic faith was part of the arrangement. The jury were told again that plaintiff claimed a specific oral contract for keeping the child, no amount of compensation having been agreed on, and if the jury found he should recover, he should recover the reasonable value of the services rendered. In that connection the court said there had been "brought into the contract by the evidence" that defendant had said if the child needed anything, plaintiff should get it, charge it to defendant, and defendant would pay for it. The court, however, immediately left it to the jury to say whether that kind of an agreement was included in plaintiff's oral contract, and instructed the jury what, if such were the case, plaintiff could recover. The jury were instructed that if defendant directed plaintiff to buy things for the child and defendant would pay for them, the statute of limitations barred recovery for all items except those bought and charged within three years preceding commencement of the action. In other respects the jury were properly and adequately instructed.

The jury returned a verdict for plaintiff, and with the verdict returned the following special findings of fact:

"Q 1. About the time of the death of the wife of defendant, did the defendant make and enter into a contract with the plaintiff concerning the care and keep of the minor child? A. Yes.

"Q. 2. If you answer question number one "Yes," state fully the terms and condition of said contract. A. This was a contract to rear said child in the Catholic faith, to receive companionship of child and compensation from father of said child for same.

"Q. 3. If you answer question one "Yes," state whether or not the plaintiff complied fully with the terms and conditions of said contract? A. Yes, to the best of his ability.

"Q. 4. Not submitted.

"Q. 5. Not submitted.

"Q. 6. Did the plaintiff and his wife take said child into their home, without expecting or intending to be paid for her care and keep? A. Yes, with the expectation with the father's help and supporting the child.

"Q. 7. Did the plaintiff and his wife take said child into their home for the companionship and association and comfort of said child expecting to rear it as their own? A. No.

"Q. 8. With whom was the agreement or arrangement or contract made by the defendant concerning the care and keep of said child? A. W. F. Rockwood and wife.

"Q. 9. Did the wife of plaintiff say that she would like to have said child, and would be tickled to get it? A. Yes if she could adopt it.

"Q. 10. Did the wife of the plaintiff state the defendant had given the child to her as long as she lived, and there was no need of any adoption? A. No.

"Q. 11. Did the plaintiff state that he had taken a child to raise as his own, meaning and referring to the child Margaret? A. No.

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