Weld v. Weld
| Decision Date | 10 June 1905 |
| Docket Number | 14,193 |
| Citation | 71 Kan. 622,81 P. 183 |
| Parties | AUGUSTUS WELD v. JUDITH R. WELD et al |
| Court | Kansas Supreme Court |
Decided January, 1905.
Error from Republic district court; HUGH ALEXANDER, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
CONTRACTS--Oral Agreement Fully Executed--Marriage. An oral agreement, made in consideration of marriage, that after the marriage a debt of one of the contracting parties to the other shall be mutually regarded as paid is fully performed when the marriage takes place and is not thereafter affected by the statute of frauds.
V. D. Bullen, and B. T. Bullen, for plaintiff in error.
John C. Hogin, for defendants in error.
OPINION
Judith R. Kidder executed and delivered to Augustus Weld her promissory note for a sum of money, and secured its payment by a mortgage upon her real estate. Subsequently she married him in consideration of his parol agreement that the marriage should operate as a satisfaction of the note. Still later he brought a suit against her to recover on the note and to foreclose the mortgage. She pleaded payment, and upon a trial the jury returned a general verdict in her favor, and made answers to special questions as follow:
Judgment was rendered for the defendant for costs. It is now urged that the evidence supporting the plea of payment was inadmissible because the contract, being oral, is within the statute of frauds, and marriage is not a sufficient part performance to remove the bar, and that the evidence admitted was not sufficient to sustain the verdict.
It is true the statute of frauds provides that no action shall be brought to charge any person upon any agreement made upon consideration of marriage unless the agreement upon which the action is brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person by him or her lawfully authorized. (Gen. Stat. 1901, § 3174.)
It is likewise true that authorities may be found to the effect that generally marriage is not a sufficient part performance to avoid the effect of the statute; but there is no question of part performance in this case. The contract was fully executed when the defendant married the plaintiff. Nothing further was to be done by either party to satisfy its obligations. The agreement was not that the plaintiff would after marriage deliver money or property or securities to the defendant in consideration of the marriage, or that he would after marriage execute and deliver to her legal documents affecting her property rights. It simply was that the debt should be paid when they were married.
Some of the evidence on behalf of the defendant, as given by different witnesses, is as follows:
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Hoard v. Jones
...and to be enforceable by action must be in writing (Breen v. Davies, 99 Kan. 110, 160 P. 997), unless fully performed. (Weld v. Weld, 71 Kan. 622, 81 P. 183.) A modification of a contract is in legal effect a contract, and when by reason of the statute of frauds the original contract must b......
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Walker v. Ireton
...of law: (1) The statute of frauds does not render the oral contract void. It is valid for all purposes except that of suit. (Weld v. Weld, 71 Kan. 622, 81 P. 183; Rice v. Randolph, 111 Kan. 73, 206 P. (2) Since the contract is one which cannot be enforced, no action for damages will lie for......
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Vaught v. Pettyjohn
... ... Cyc. 279, 306, 307.) ... The ... contract was valid for all purposes except as a basis for an ... action to enforce it (Weld v. Weld, 71 Kan. 622, ... 624, 81 P. 183), and the evidence and finding of the jury ... established [104 Kan. 177] the fact that the contract ... ...
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Miles v. City of Wichita, 39101
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