Wooldridge v. Stern

• Decision Date: 05 May 1890
• Citation: 42 F. 311
• Parties: WOOLDRIDGE v. STERN.
• Court: U.S. District Court — Western District of Missouri

42 F. 311

WOOLDRIDGE v. STERN.

United States Circuit Court, W.D. Missouri, Western Division.

May 5, 1890

G. J Clark and C. M. Ingraham, for plaintiff.

Saml. Boyd and Saml. Davis, for defendant.

PHILIPS J.

This is an action predicated on a parol agreement for the support and maintenance of a bastard child, and grows out of substantially the following state of facts: The child was born to plaintiff in 1872 or 1873, when the plaintiff was about 16 or 17 years old. The evidence tended to show that defendant was the father of said child. The mother seems to have had the care and burden of the support of the child from its birth up to the year 1887. After repeated efforts to have the defendant fulfill his alleged promises to assist the plaintiff in its maintenance, and failing therein, the plaintiff visited the defendant at his place of business in Slater, Mo., and insisted that he must either take charge and custody of the child, or provide for its support and education. The plaintiff's evidence-- which the jury, by their verdict, must have credited-- was to the effect that the defendant, at the time of this visit, had recently married another person, and that in order to keep the fact of the paternity of this child, and the scandal thereof, from his wife, he then and there promised plaintiff that if she would leave the state, and remain with the child in the state of Colorado, he would pay her what was right, not only for her past trouble with and support of the child, but that he would from time to time send her money to support and educate the child until it was 21 years of age; that thereupon she accordingly took the child to Denver, Colo., where she remained with it, supported and educated it, up to the time of the institution of this suit, in 1889; that the defendant wholly failed to keep his said promise and agreement, for the breach of which this action is brought. At the conclusion of plaintiff's evidence, the defendant demurred thereto on the ground that such a contract was contrary to public policy and good morals, and that the same was within the statute of frauds, as being a parol contract not to be performed within one year. The demurrer was overruled. The jury returned a verdict for plaintiff for $1,050; and the defendant moves for a new trial, urging the same grounds therefor as presented in the demurrer to the evidence.

The first ground of error is practically abandoned by counsel for defendant. The only real question to be determined is as to the applicability of the statute of frauds to this agreement. So much of the agreement as refers to the future clearly indicates that its continuance might extend over a period of years. The contention of plaintiff's counsel is that it was none the less an agreement which might be performed within a year, as its longer continuance depended necessarily upon the contingency of plaintiff's life, as also that of the child. There is a general consensus among text-writers and courts that the term 'not to be performed' does not include an agreement not likely to be performed within the year, nor one scarcely expected to be performed within that time; but rather does it purport such agreements which by a reasonable clear or fair interpretation of all the parts, viewed by the then existing circumstances, do not admit of performance according to the language and intention within so short a period. Out of this root has grown the recognized rule that, notwithstanding it may have been within the contemplation of the parties that more than one year might be occupied in its performance, yet if it might, consistently with its terms, be fully performed within that time, the statute does not apply. Such are agreements to pay a given sum of money on the day of the promisor's marriage, to leave money by last will, or to pay during or at the end of a life, or to board one during life, and the like. This rests upon the presumption that it was within the contemplation of the parties to the agreement that the person whose life is concerned may not improbably die within the year; and, on principle, this presumption is extended to other contingencies which are liable to happen or occur within the year, and put an end to the undertaking. Had the agreement in question simply provided that the plaintiff, for a reasonable compensation, should take and keep the child in the state of Colorado for an indefinite length of time, the authorities are generally agreed that such an agreement would be within the rule of exemption from the operation of the statute. Murphy v. O'Sullivan, 11 Ir.Jur. (N.S.) 111; Souch v. Strawbridge, 2 C.B. 810; Browne, St. Frauds, (4th Ed.) Secs. 274, 276a. But where a limit is fixed to the duration of the agreement, such as the attainment of majority by a minor, the applicability of the statute cannot be said to be so well settled. Browne, in his treatise on the Statute of Frauds, (section 282a,) seems inclined to the opinion that such a contract is within the statute, while Smith's Leading Cases, (8th Ed. vol. 1, p. 619,) on the strength of the authorities, regards such contracts as unaffected by the statute. See Wood, St. Frauds, Sec. 275.

The case of Peters v. Westborough, 19 Pick. 364, is perhaps the strongest American case in support of the proposition that a parol agreement to pay for the support and maintenance of a minor, then 11 years old, until the age of 18, is not within the statute. The decision is planted broadly on the ground that such a contract is predicated of the contingency of the the life of the child, which is presumed in such case to have been within the contemplation of the parties. So that, if the child should die within the year, the agreement would not be avoided, but would be fully performed. The doctrine of this case is reaffirmed in Lyon v. King, 11 Metc. 411. These decisions are predicated of the language of DENISON, J., (in Fenton v. Emblers, 3 Burrows, 1279:)

'The statute of frauds plainly means an agreement not to be performed within the space of a year, and expressly and specifically so agreed. A contingency is not within it, nor any case that depends upon contingency.'

So in Ridley v. Ridley, 34 L.J.Ch. 462, it is...