Parsons v. Teller

Spring, J.: At the close of the evidence each party moved for the direction of a verdict. By consent of the parties the jury was discharged and the case submitted to the justice presiding, who subsequently rendered his decision containing findings of fact and conclusions of law and directed judgment in favor of the plaintiff. The facts are found in the decision with great detail and settle the conflicting facts and any inferences fairly deducible therefrom in favor of the plaintiff. Each finding is supported by evidence to sustain it and a new trial should not be ordered unless we are satisfied that the decision in its material features is decidedly contrary to the evidence. It is claimed by the learned counsel for the appellant that the written agreement was without consideration and that it was not ratified by Mrs. Smith after she attained her majority, and these contentions comprise the principal questions requiring consideration. The agreement on its face imports a valuable consideration. The presence of the seal and the acknowledgment of the receipt of one dollar imply a consideration (Mutual Life Ins. Co. v. Yates County Nat. Bank, 35 App. Div. 218; Matter of Steglich, 91 id. 75; 6 Am. & Eng. Ency. of Law [2d ed.], 762; 2 Whart. Ev. § 1045), which may be rebutted by extraneous proof. (Baird v. Baird, 145 N. Y. 659.) Eliminating, however, the effect of the seal and the acknowledgment of payment, the agreement is founded on services performed by the plaintiff while -in the employment of Miss King, and for which she had agreed to pay. Had Mrs. Smith been an adult the agreement in and of itself would have been sufficient to enable Miss Parsons to recover upon it, unless its validity was impeached by proof. It becomes important, therefore, to refer to the evidence for the purpose of ascertaining if the recitals of employment and service — 642 — in the agreement have been entirely disproved. In order to comprehend the scope of the agreement, it is essential to keep in mind the' relations of these two people. Miss King was a motherless child who was living with her grandmother; and the plaintiff at thirty-two years of age came into the family when the child was six years pf age and remained there for six years. They were together daily.They occupied the same bed; The plaintiff cared for the' girl, issisted in her education, and they became closely attached to each )ther.. After the death of the grandmother Miss King lived with he plaintiff in Hew York, and their keen affection existed unabated until the death of Mrs. Smith. For the services rendered the plaintiff received no compensation in money: It may be that none was expected to be paid. In any event, the services were valuable, and were so regarded by Miss'King) and they were sufficient to constitute a valuable- consideration for the promise to pay therefor. The adequacy of the price paid or- promised is not significant. Miss King - had property to the amount, of .$300^000. She had been reared in affluence. She alone had the right-to measure the value of the employment and companionship of her friend. It is not for another to determine that she paid in excess of their-real worth, and her agreement to extend the term of payment during the lifetime of the plaintiff cannot be overthrown because we may conclude that the plaintiff did not earn the full sum which M1-s. Smith chose to pay her. (Yarwood v. Trusts & Guarantee Co., Ltd., 94 App. Div. 47; appeal dismissed, 182 N. Y. 527; Earl v. Peck, 64 id. 596.) The agreement was executed as Mrs. Smith and her husband were about-to depart from this country for their future home in England. . In entering into the agreement she was not acting alone or unadvisedly. Her husband and father were parties to the contract and they personally became liable for the payment of the allowance which she fixed Upon as the remuneration for-the services rendered. The Contract was drawn by her lawyer. The solemn recitals of consideration were not stéalthily inserted in it or with-' out her knowledge. The attorney was,not' preparing this important agreement .for his client without information concerning the consideration. ' He ascertained the inducement for the agreement and ' embodied' it clearly therein. ' There , is no suggestion and there — 643 — could not be of any overreaching in the preparation of the contract. So just was it, apparently, that her nearest relatives sanctioned it and were responsible for its performance. The prior agreement, even though voidable at the will of Miss King, denoted an intention , to compensate the plaintiff. It was in effect canceled and the one in controversy substituted. Its cancellation was sufficient consideration for the more formal and explicit instrument. (Hamer v. Sidway, 124 N. Y. 538; Melville v. Kruse, 174 id. 306.) The two letters quoted, which are the first indication of any intention to pay, do not militate against the contractual liability. These ladies were close friends. We would not expect in their letters, filled with outbursts of affection, to find the one asserting a debt and the other insisting that any payment made was voluntary. There was no enforcible demand.. Miss King was a minor during all the time of the rendition of the services which induced the agreement. When she approached womanhood, realizing that the services had been 'valuable to her and that her friend was needy, she saw fit to impose upon herself their payment as an obligation. The correspondence denotes that the amount had been the subject of conversation and had been agreed upon between them, and that sum was adhered to from the beginning. One or two of the witnesses testified that Mrs. Smith said these payments were voluntarily made by her. They were originally. She could not have been made to pay. She was animated by her love and affection in undertaking to compensate where no debt could have been established. Hone the less, the compelling moral obligation did not wipe out the services rendered upon which she had the right to put a money value and by a binding agreement assume their payment according to her own estimate. Her declarations, if competent, are not sufficient to warrant the setting aside of the judgment in view of the other evidence contained in the record, and all of which was considered by the trial justice in arriving at his conclusion. These facts are established by evidence which is substantially undisputed. ■ We think, therefore, the appellant has not affirmatively established that the agreement was without a valuable consideration, but on the contrary, the facts affirm its validity. It was? of Qourse, essential to the validity of the agreement that — 644 — it be ratified after Mrs. Smith, became o£ age. The adoption of -the agreement required no new consideration. There must be the confirmation, the definite recognition óf the antecedent obligation, . but nothing beyond to make it effective.. , Within-the-strict rule stated in the brief of the counsel for th'^ appellant Mrs. Smith confirmed the agreement after attaining her-majority. The payments after that time were regularly made according to her direction.. She was nearly nineteen years of age at. the time tíre contract' was entered into. It must have been" made at her instance. She was a married woman, and, undoubtedly, comprehended the nature and extent of the obligations she had assumed. She retained the agreement or a copy of it. There was no other agreement whereby she was called upon to pay the plaintiff. She recognized its. existence in talking with her friends and -with the defendant, her agent. In her letters to.the plaintiff she referred to her allowance. For eight years without interruption she caused the sum, which she had covenanted to pay, to. he turned over to the- plaintiff. An intelligent lady, with abundant, means, with the active co-operation 1 of her husband, she met the obligation graciously undertaken'while a minor. She paid' understandingly. It is too late now to claim that she did not intend to conform to the terms of the written agreement entered into with so much solemnity.- . If Mrs. Smith tiré year before her death hail attempted to repudiate this agreement, claiming that it was without consideration and that it had not been ratified by her, the endeavor-would have been. unavailing if based on the proof contained in this record. The contract was riot void. T-he authorities are- quite uniform in maintaining the principle, that -the contract of an- infant is voidable only,, irrespective, of whether for his benefit or-to his prejudice. (Blinn v. Schwarz, 177 N. Y. 252; Henry v. Root, 33 id. 526; 2 Kent Comm. 234 et seg.; 1 Pars. Cent. [5th ed.] 293 et seq.; 2 Black. Comm. 291; 16 Am. & Eng. Ency. of Law ,[2d ed.], 272 et seg.) Mrs. Smith, on becoming of age, might have entered into a new agreement with like import, to the old One. She preferred to keep the -old one alive. She’ had the same power to do this as to enter . into-an independent contract., It is claimed there was no ratification because Mr. Smith made — 645 — the payments to the plaintiff. The money of his wife was deposited with his bankers to his credit, and he testified that it was. his wife’s wish that these payments should be made. The acknowledgment of payment in. each instance was made by the plaintiff to Mrs. Smith, although the check was that of her husband. Commencing with 1899 and continuing until the death of Mrs. Smith, the payments were made monthly in this country by Mr. Teller, her agent and the custodian of her funds, and each statement rendered by him to her showed these payments made each month. A more 'complete recognition of the agreement cannot be conceived. Again, it is contended that the recital of consideration, in the agreement is not binding on Mrs. Smith because she was an infant at the time of its execution, and authorities are cited holding that the admissions of an infant are not binding against him. In these cases there had been no ratification, and the admissions made during infancy were attempted to be used to establish an estoppel or a liability" notwithstanding the failure to show an affirmance of the agreement. In Sims v. Everhardt (102 U. S. 300), cited in the dissenting opinion, the infant had executed a deed during her minority asserting that she was of age. There was no recognition of the deed after she attained majority, and she commenced an action to set it aside. It was claimed that she was estopped by her admissions made while- she was an infant. The court held that the declaration could not be resorted to in order to uphold an agreement which depended upon her affirmance after she became of age to give validity to it, The court said (at p. 313): “ The question is whether acts and declarations of an infant during infancy can estop him from asserting the invalidity of his deed after he has attained his majority.” The court further said that the conveyance itself “is an assertion of his right to convey,” and nothing is added to it by a contemporaneous admission. The recitals in the agreement amount to an admission or declaration by Mrs. Smith that she owed the plaintiff for services while under age, at which time she had reached sufficient maturity to comprehend the scope and force of the declaration, and it is competent evidence against her tending to establish a consideration for the agreement: When Mrs. Smith became of age she ratified the agreement; not a portion, but the agreement as it existed, That — 646 — indorsement was equivalent to a new agreement. The ratification carried with it a recognition of the .agreement" to its-fullest extent,, and the recitals thus became effective against her. "Of course, the agreement was in no part valid during the infancy of Mrs. Smith, and its validity depended upon her own conduct after she became of. age. Its affirmance, or disaffirmance rested entirely with her, and she elected to make this precise agreement valid and binding against her. The agreement was executed in this State. It was expected to be performed here. The plaintiff was á resident of New .York, and this had been the home of Mrs! Smith. The services had been rendered here. Mrs. Smith’s property was in this State, and in part, at least, remained invested here. . After she became of age she was in this country and directed her .agent to pay the allowance to Miss Parsons, so .the initial ratification was in the' State of New York. The confirmation of the agreement by Mrs. Smith made it operative from its inception. In these circumstances the agreement is to be governed by the laws of' the State of New York. The effect of the bequest in'the will of'Mrs. Smith for the benefit of the plaintiff is. not beforp us. That provision may have been intended as a substitute for the allowance fixed by the agreement. No such defense is pleadpd, and no suchf question is suggested in the brief. Thereds nothing in the record to indicate -that Miss Parsons is claiming both .provisions. If such is her position,, and the effect of the will upon the- contract were to be considered u23on this appeal, an entirely different situation might be presented. In' any event the plaintiff has elected to enforce the agreement. If she is not entitled to take' pursuant to the will, and also recover upon the contract, her election ■ has been. made. (Caulfield v. Sullivan, 85 N. Y. 153.) There is ho proof that the trust bequest under _ the will- has been set apart for the benefit of the plaintiff, or that any 23ayment or tender of payment pursuant to its terms has beén macte. There is no warrant in the record for the statement that she is seeking to recover $3,600. We have simply tO' determine the validity of the agreement, with the inferences and facts, so far as they are conflicting, resolved. in favor of 'the plaintiff, and we eannot be led away from this plain — 647 — path by the suggestion that the plaintiff is endeavoring to take both by virtue of the will and of the agreement. Such an assumption may be entirely unwarranted. The judgment should be affirmed, with costs. 1 All concurred, except McLennan, P. J., and Nash, J., who- dissented in an opinion by McLennan, P. J.