Strong v. Marcy

• Decision Date: 07 January 1885
• Citation: 33 Kan. 109,5 P. 366
• Parties: MARY T. STRONG, a minor, by B. F. Hendrix, her next friend, v. EDGAR H. MARCY
• Court: Kansas Supreme Court

5 P. 366

33 Kan. 109

MARY T. STRONG, a minor, by B. F. Hendrix, her next friend, v. EDGAR H. MARCY

Supreme Court of Kansas

January 7, 1885

Error from Osage District Court.

ACTION by Mary. T. Strong, a minor, by her next friend, against Edgar H. Marcy, to recover damages for an alleged breach of a certain written contract. At the October Term, 1883, the court sustained the defendant's demurrer to the petition and rendered judgment against plaintiff for costs. The plaintiff brings the case to this court. The opinion states the facts.

Judgment reversed and the cause remanded.

Hughbanks & Hendrix, and Wm. Thomson, for plaintiff in error.

Ellis Lewis, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action brought by Mary T. Strong, a minor about fifteen or sixteen years of age, by B. F. Hendrix, her next friend, against, Edgar H. Marcy, to recover the sum of three thousand dollars, as damages for an alleged breach of the following written contract, to wit:

"Know all men by these presents, That by mutual agreement between B. F. Strong, party of the first part, of Osage City Osage county, and the state of Kansas, and Edgar H. Marcy, of Osage county and state of Kansas, party of the second part, the party of the first part consents to give over his minor heir and daughter, Mary T. Strong, to the said party of the second part, to rear and educate and control and provide for, as if by adoption at law, as his own child; and the said party of the second part consents to receive and take full charge of the said minor daughter, namely, Mary T. Strong, to rear and educate and control and provide for, as if by adoption at law, as his own child; and the said party of the first part hereby agrees to, and does hereby, relinquish his entire control over said Mary T. Strong to the said party of the second part.

"In witness whereof, the said B. F. Strong and the said Edgar H. Marcy have hereunto set their hands, this ninth day of March, in the year of our Lord one thousand eight hundred and seventy-eight.

B. F. STRONG.

E. H. MARCY.

Witness: B. F. HENDRIX."

The petition of the plaintiff alleges, among other things, that at the time of the making of this contract the plaintiff was about ten years of age; that the contract was made by her father, B. F. Strong, with the defendant, E. H. Marcy, for her sole and separate benefit; that for that purpose her father then and there relinquished all his care, custody and control over the plaintiff to the defendant; that from that time forward up to February, 1883, all parties complied with the terms and provisions of the contract; when the defendant, without any just cause or provocation, drove the plaintiff away from his home and residence, and has ever since refused to provide for her support or education, or to comply with any of the terms or provisions of the aforesaid contract, to her damage in the sum of three thousand dollars. This action was commenced on June 11, 1883. Hence the plaintiff was about that time about fifteen or sixteen years of age.

The defendant demurred to the plaintiff's petition, upon the ground that it did not state facts sufficient to constitute a cause of action against the defendant, and the court below sustained the demurrer; to which ruling the plaintiff excepted, and now brings the case to this court.

We have no means of knowing the exact point upon which the court below sustained...