Fixico v. Fixico

RILEY, J. This is an appeal from a judgment sustaining a demurrer to plaintiff’s petition and dismissing the action. Appellant contends the action sounds in tort, but it approaches breach of contract. Defendant is an incompetent Indian. It is alleged that she induced plaintiff to marry her minor son under promise of provision of a home and sustenance, and that these were furnished with acquiescence of defendant’s guardian and the county court. Defendant’s son died in 1935; three years thereafter it is alleged defendant rendered plaintiff’s condition intolerable by “breaking said contract,” making efforts to obtain possession of the home of plaintiff, and sought to oust plaintiff and her two children from the home, the use of which defendant had furnished, and as a means to this end “had the water, lights, and gas cut off.” Section 9404, O. S. 1931, sec. 24, title 15, Okla. Stats. Anno., inhibits a contract, designation of a power, and waiver of a right by an incompetent person. Therefore, any contemplated contract attempted to be made as herein alleged vested in plaintiff nothing, nor did acquiescence of guardian or court in providing living expense or home for plaintiff bind the incompetent defendant. Judgment affirmed. OSBORN, HURST, DAVISON, and DANNER, JJ., concur.