McDaniel v. Hutcherson

Opinion op the Court by Judge Settle — Reversing. Grant McDaniel filed in tlie Mercer circuit court the following petition: “.Tlie plaintiff, Grant McDaniel, states that in the year 1908, he was living with Ms family in the state of Illinois, and that the defendant, John Hutcherson, was living in Mercer county, Ky., that to induce the plaintiff to leave his home and business in the state of Illinois, the said defendant agreed and promised that -if the plaintiff and his family would come to Kentucky, and live with the defendant, he, the defendant,- would furnish the plaintiff a home during defendant’s life, and that he would give the plaintiff his home place at defendant’s death. He says that said home place consists of about 150 acres of land in Mercer county, Ky., of the value of $100 per acre. He says that said promise and agreement [414] was verbal, but that at divers times during the year 3908 it was renewed and confirmed by writings signed by the defendant, and that in compliance with and accordance with, said agreement and contract this plaintiff canceled and abandoned Ms contract and borne in Illinois and came to Kentucky at a great expense and loss of time and money, and came to the borne of the defendant, and then and there agreed to perform the said contract and to live with the defendant, and work for Mm as agreed in said contract and agreement with the defendant, but that the defendant then refused to furnish the plaintiff a home or work, or to permit Mm to live with him as agreed, and refused and failed to perform any part of said contract, and refused to furnish the plaintiff with a home or work, and refused to secure to plaintiff his said farm at his death, and that by reason of his said failure the plaintiff was compelled to take his family into inadequate and unhealthy quarters, and to do unprofitable work in order to support himself and his family, and that he was thereby caused to suffer great hardship and-loss, and that his children became sick from exposure caused by the defendant’s failure to comply with said contract, and by reason of said exposure and hardships two of his children died. He says that defendant is over 80 years old, and in feeble health. He says that by reason of defendant’s failure to comply with Ms said contract the plaintiff has been damaged in the sum of $20,000, for which he prays judgment and for all proper relief. ’ ’ The defendant filed a general demurrer to the petition. The court sustained the demurrer. The plaintiff then filed an amended petition, filing with it the letters rei erred to. These letters were not sufficient to show that a contract had been made as all pged in [415] the petition, although they were to some extent- confirmatory oü the allegations of the petition. The court sustained a general demurrer to the petition as amended. The plaintiff declined to plead further, and. his action having been dismissed, lie appeals. The only, question arising on the appeal is whether the petition discloses an enforceable obligation. By the seventh section of the statute of frauds (Ky. St. sec. 470 [Russell’s St. sec. 1775]), no action may be brought upon any agreement which is not to be performed in one year, unless it or some memorandum of it is in writing. Under this provision a contract that can not be performed within a year is unenforceable; but the statute has been uniformly held not to apply to contracts that may be performed within a year. Dickey v. Dickinson, 105 Ky. 748, 49 S. W. 761, 20 Ky. Law Rep. 1559, 88 Am. St. Rep. 337. So it has been held that a verbal contract to support a child might have been completed by the death of the child within a year from the time it was made. Stowers v. Hollis, 83 Ky. 548. For the same reason a contract by a son to support his mother during her life has been upheld.. Whitley v. Whitley, 80 S. W. 825, 26 Ky. Law Rep. 134. See, also, Standard Oil Co. v. Denton, 70 S. W. 282, 24 Ky. Law Rep. 906; Yellow Poplar Lumber Co. v. Rule, 106 Ky. 455, 50 S. W. 685, 20 Ky. Law Rep. 2006. Under these authorities the contract set up in the petition is not within the seventh clause of the statute of frauds. By the sixth section of the statute of frauds, no action shall be brought to charge any person upon any contract for the sale of real estate, or on any lease of it, for a longer time than one year, unless the contract or some memorandum of it is in writing. A life estate in land is a fee, and under the statute can [416] only be created by a contract in writing. The contract to fnrnisb plaintiff a home during defendant’s life, and to give him the home place at the defendant’s death, is within the statute. In Berry v. Grady, 1 Metc. 553, Grady had married a niece of Bell’s whom Bell had raised, and to whom he was much at-i ached. Gr'ady was about to move to Mississippi, and, to induce him to stay in Kentucky, and buy a farm in Woodford county, Bell agreed to pay $5,000 of the purchase money in three annual installments. lie paid $2,000 and died before paying the remainder. It was held that, as the contract had been performed by Grady, and as he had qualified as administrator of the deceased, he might retain, as administrator, the $3,000 balance of the purchase money for the land. Concluding its opinion, the court said: “The agreement was performed by Grady on his part, relying upon- its fulfillment, by his intestate, who, had he lived, would undoubtedly have performed his part of it; It would, therefore, amount to a fraud upon the former, after he has executed the agreement, to deprive him of the benefit of it, on the ground that the contract- was verbal merely. He can not be restored to the situation he was before the contract was made, nor can he be compensated in damages by any other standard than that furnished by the contract itself. The equity, as well as the law of the case, is, therefore, in favor of the appellee. In Speers v. Sewell, 4 Bush, 239; Myles v. Myles, 6 Bush, 237; Usher v. Flood, 83 Ky. 552; Thomas v. Feese, 21 Ky. Law Rep. 206, 51 S. W. 150; Story v. Story, 61 S. W. 279, 22 Ky. Law Rep. 1731; Doty v. Doty, 118 Ky. 204, 80 S. W. 803, 26 Ky. Law Rep. 63, 2 L. R. A. (N. S.) 713, and in a number of other-cases cited therein — it was held that, where services. [417] had been rendered during the life of another, on the promise that the person rendering the service should receive at the death of the person served a legacy, a reasonable compensation may be recovered for the services actually rendered; or where the person performing the contract was to receive a certain piece of land, the value of the land may be considered in fixing the compensation where there is no other adequate way of measuring the consideration received. Under the principle settled in these opinions, the plaintiff may recover reasonable compensation for w-liat he did under the contract before it was disaffirmed by the defendant; that is to say, he may recover his reasonable expenses in moving* to Kentucky, a reasonable compensation for the time lost in so doing, and a reasonable compensation for any loss that lie actually sustained in giving up his home and business in Illinois and coming to Kentucky. The petition is not sufficient to warrant a recovery of the special damages we have indicated, as it does not show the amount of the expense incurred, the amount of time lost or its value, or the amount of loss actually incurred by the plaintiff in giving up his home in Illinois; but, as it shows some loss, it is sufficient on demurrer. There can be no recovery beyond the items we have indicated. Judgment reversed, and cause remanded for further proceedings consistent herewith. The plaintiff may have leave to amend his petition.