Wallace v. Long

• Decision Date: 05 March 1886
• Citation: 5 N.E. 666,105 Ind. 522
• Parties: Wallace, Adm'r, etc., v. Long, Guardian, etc.
• Court: Indiana Supreme Court

105 Ind. 522

5 N.E. 666

Wallace, Adm'r, etc.,

v.Long, Guardian, etc.

Supreme Court of Indiana.

Filed March 5, 1886.

Appeal from Marion superior court.

Lew Wallace, Brown & Harvey, and Sullivan & Jones, for appellant.

J. E. Florea, A. W. Wishard, and H. N. Spaan, for appellee.

Mitchell, J.

David D. Long, as guardian of Mollie Fette, filed a complaint in the nature of a claim against the estate of Maria Fette, deceased. The substantial averments of the paragraph upon which the judgment rests are as follows: About the twenty-second day of February, 1871, the decedent and her husband, being childless, requested the plaintiff's ward, then about seven years old, a neice of the husband, to live with them, and, becoming much attached to her, they proposed and agreed at that time and afterwards “that, if she would live with them during their life-time, and until the death of both, and become and act and do by them and towards them as their child, and permit herself to be known and called as their child, and if she would respect and treat them as her parents, and do such work about their house, and would render them such services and assistance in the care and keeping of their house and property, as she was capable of doing, and if she would care for them and nurse them in sickness, and would continue with them and live with them until their death, that they would treat and deal with and towards her as their child; that they would make her their heir; and at their death, or at the death of the survivor of the two, they would will, bequeath, and give her the entire estate of which they were possessed.” The ward accepted the proposal so made, and faithfully performed the agreement on her part. Charles Fette, the husband, died about March 15, 1881, having left all his property to his widow. The agreement was then renewed between the ward and Mrs. Fette. The agreement was faithfully performed by the former until the death of the latter, which occurred December 17, 1883. It is averred that Mrs. Fette neglected to make the will according to the agreement, and died intestate. The claim is to recover the value of the estate, estimated at $6,000. Upon issues duly made there was a trial to a jury. The evidence tended to show that the intestate left real estate of the value of $5,000, and a personal estate of about $1,000 in value. There was a verdict for the plaintiff for $6,025, and, over a motion for a new trial, judgment was entered on the verdict for $6,000, the plaintiff having entered a remittitur of $25. Following the entry of judgment, the record recites the following order made by the learned judge who presided at the trial: “Inasmuch as this case is not without difficulty, it is ordered by the court that the defendant, as administrator, do at once take and prosecute with reasonable diligence an appeal to the supreme court of the state of Indiana.”

Of the errors assigned here, the only one discussed is the overruling the motion for a new trial. This motion assigned as causes for a new trial that the verdict was contrary to law and to the evidence; that it was not sustained by sufficient evidence; that the damages were excessive; and that the court erred in giving and refusing certain instructions.

It may be said the evidence tends to establish the averment in the complaint, and, if no legal impediment stood in the way, it might fairly support the verdict. The case proceeded upon the assumption that if the contract was proved substantially as alleged, and performance of it was shown on the part of the ward, an action for damages for the violation of the contract might be maintained, and that the measure of recovery to which she was entitled was the value of the real and personal estate of the intestate, irrespective of the actual value of the services rendered. The argument for an affirmance of the judgment is predicated upon the affirmation of the following propositions: (1) That the action is for damages for the breach of an express parol contract; (2) that the contract is not within the statute of frauds; (3) that the measure of damages is the value of the estate agreed to be devised.

Upon the authority of Frost v. Tarr, 53 Ind. 390, it is conceded that an action for the specific performance of the contract is not maintainable, and upon the authority of that case, and the cases of Bell v. Hewett, 24 Ind. 280, and Lee v. Carter, 52 Ind. 342, it is insisted that the contract is clear of the statute of frauds, and that the measure of recovery should be the value of the estate. A brief examination of the argument and the cases above mentioned seems to be required. The concession that the contract cannot be specifically enforced, involves the conclusion that it is within the inhibition of the statute. If the statute of frauds presents no obstacle to the enforcement of the contract, then, so far as the record discloses, none exists. It cannot, of course, be denied that if the contract had been in writing, or if, in pursuance of an oral contract, the plaintiff had been put in complete possession, and she had otherwise fully performed on her part, specific performance could have been enforced. It would then have presented a case analogous in principle to Mauck v. Melton, 64 Ind. 414. That was a case in which an oral contract was made which provided that, in consideration of board to be furnished, and services to be performed, a tract of land would either be conveyed or devised by will. The person agreeing to perform the service was put in possession of the land, and it was held, the services having been performed, the contract would be specifically enforced. It is true, it was there said the contract was not within the statute of frauds. In saying this nothing more was meant, in view of the facts, than that, by reason of the part performance of the contract, it had been taken out of the operation of the statute, and might therefore be specifically enforced. Atkinson v. Jackson, 8 Ind. 31;Watson v. Mahan, 20 Ind. 223;Lafollett v. Kyle, 51 Ind. 446;Law v. Henry, 39 Ind. 414;State v. Hill, 10 Ind. 176;Moreland v. Lemasters, 4 Blackf. 383;Arnold v. Stephenson, 79 Ind. 126.

The case of Baxter v. Kitch, 37 Ind. 554, involved a state of facts similar to Mauck v. Melton, supra. No possession having been delivered under the contract, the court said: “It is a contract for the sale of real estate, and, to be made a sufficient foundation of the action, must have been in writing, and signed by William Pickett, deceased.” The cases of Neal v. Neal, 69 Ind. 419, and Johns v. Johns, 67 Ind. 440, involved the principle here under consideration, and the holding in both was that the statute of frauds prevented the enforcement of the contract. This much has been said to show that the only impediment in the way of a specific enforcement of the contract involved in this case is the statute of frauds.

When the title to property, either real or personal, is to be acquired by purchase, the statute of frauds will operate upon and affect the contract in precisely the same manner whether the consideration for the purchase is to be paid in services, money, or anything else. In either case such a contract being in parol, and entirely executory, cannot be enforced by either party, and it may be doubted whether a contract which is within the statute, so as to be incapable of specific enforcement, has sufficient validity to support an action for damages by either party, unless the contract was induced under or its violation is involved in some special circumstances of fraud or bad faith. Barickman v. Kuykendall, 6 Blackf. 22;Ballard v. Bond, 32 Vt. 355;McCracken v. McCracken, 88 N. C. 273;Bender v. Bender, 37 Pa. St. 419. The most that can be recovered in such a case is the value of what may have been paid or performed by one party in reliance upon such a contract, when the other refuses to perform. 2 Reed, St. Frauds, §§ 737, 761, 762; Day v. Wilson, 83 Ind. 463. Where, therefore, services have been performed or money paid in consideration of property to be conveyed, if the contract is not enforceable by reason of the statute of frauds, the action is not on the special contract, but, in the case of services performed, the action is on a quantum meruit, to recover the value of the services. Ham v. Goodrich, 37 N. H. 186;Emery v. Smith, 46 N. H. 151;Leslie v. Smith, 32 Mich. 64;Seymour v. Bennet, 14 Mass. 268; 2 Reed, St. Frauds, §§ 622, 623, and cases cited in notes; 2 Suth. Dam. 453. In such a case the value of the services performed, and not the value of the property agreed to be conveyed, is the measure of damages.

Returning to the cases relied on, Bell v. Hewitt, supra, was an action on a special contract for services, to be compensated by a promised legacy of $500. The contract involved the payment of a specified sum of money in a manner agreed upon. It was held that, as the contract was upon a definite consideration, and liable to be performed within one year, it did not come within the fifth subdivision of the statute of frauds, which inhibits the bringing of actions upon oral contracts, not to be performed within one year from the making thereof. There was in that case clearly no impediment in the way of the maintenance of an action on the contract to recover the stipulated wages. This case was followed in Caviness v. Rushton, 101 Ind. 502, which involved the same principles.

The next case, Lee v. Carter, 52 Ind. 342, was decided, so far as it touches the question under consideration here, on a demurrer to the complaint, which was in the nature of a claim filed against the estate of one Carter. The substance of the complaint, as set out in the opinion, is that Cline agreed with Carter that if the latter would take possession of the farm of the former, and clear and improve such portions as he might be able, and permit Cline to reside with him, do his mending, washing, and furnish his boarding, Cline would compensate him by...