Wynn v. Followill

• Citation: 72 S.W. 140,98 Mo.App. 463
• Parties: BETTIE C. WYNN, Respondent, v. ROBERT M. FOLLOWILL, Appellant
• Decision Date: 16 February 1903
• Court: Kansas Court of Appeals

72 S.W. 140

98 Mo.App. 463

BETTIE C. WYNN, Respondent, v. ROBERT M. FOLLOWILL, Appellant

Court of Appeals of Missouri, Kansas City

February 16, 1903

Appeal from Maries Circuit Court.--Hon. J. E. Hazell, Judge.

AFFIRMED.

Judgment affirmed.

Thos M. & Cyrus H. Jones for appellant.

(1) The petition stated an agreement made on the 15th day of November, 1897, to furnish hired help from the said 15th day of November to August, 1900, a contract not in writing which requires over two years and eight months for its performance. It is, therefore, non-enforcible and defendant's objection should have been sustained. Pitcher v Wilson, 5 Mo. 46; Atwood v. Fox, 30 Mo. 499; Schultz v. Tatum, 35 Mo.App. 136. (2) Under the settled law of this State, the contract as pleaded in plaintiff's petition, being a verbal one was within the statute of frauds and void and defendant's objection should have been sustained. Pitcher v. Wilson, 5 Mo 46; Atwood v. Fox, 30 Mo. 499; Schultz v. Tatum, 35 Mo.App. 136; Blenton v. Knox, 3 Mo. 342; Scroggin v. Blackwell, 36 Ala. 351; Cook v. Redman, 45 Mo.App. 397; Drummond v. Burril, 13 Wend. 307; Broadwell v. Getman, 2 Denio 87.

Crites & Garrison, C. D. Corum, and J. W. Terrill for respondent.

OPINION

ELLISON, J.

--This action is for damages resulting by defendant's failing to furnish plaintiff with a domestic servant to assist plaintiff in caring for defendant's infant child. The judgment in the trial court was for plaintiff.

It appears that plaintiff is the child's grandmother and that defendant's wife died leaving the infant then only a few days old. The evidence in behalf of the plaintiff tended to prove that she took the child to her own home to care for it, on the understanding and agreement that defendant would furnish to her a girl who would assist her. The evidence for plaintiff further tended to show that defendant failed to wholly perform his agreement. The original petition was based on an alleged agreement to pay plaintiff for her labor and expense in taking care of and maintaining the child. There was, however, afterwards filed an amended petition, which declared on a contract to furnish the domestic aforesaid. No objection was made to the amendment by defendant and he filed his answer thereto. The defendant then took the position at the trial that the petition showed an agreement void under the statute of frauds, and the plaintiff got leave to make two amendments by interlineation, the intention being to so change the statement of the case as to remove the objection based on the ground of the statute of frauds. Defendant objected to these last amendments. But as, in our opinion, the amended petition, with or without the interlineations, did not state a contract which could be affected by that statute, we need not notice the objections to them.

The amended petition, according to defendant's claim, stated a contract for the furnishing of "hired help" to plaintiff for the purpose of keeping, supporting and caring for the infant for a period of two years and eight months. Defendant contends that the contract was, therefore, one not to be performed within one year, and void. It is agreed on all sides that the contract was based upon the care and support of the child. If the child should cease to live, the contract, of course terminated. So, notwithstanding the contract, in point of time, was for a period of more than one year's duration, yet it was necessarily based on the life of the child, and as that might end within a year, the statute of frauds does not apply. Foster v. McO'Blenis, 18 Mo. 88. In Harrington v. Railway, 60 Mo.App. 223, we held that a verbal contract to employ one for as long a period as he should properly do his work was not within the statute, since if he died within a year, the contract would end. The same rule, as applicable to a variety of cases, is stated by Lawson's Contracts, sec. 74. And so it is made plain, as applicable to the present controversy, by the various illustrations in the following cases: where the verbal contract was that a railway company would issue...