Raycraft v. Johnston , 41 Tex. Civ. App. 466 ( 1906 )

This is an action by Ellen Johnston against the administrator of the estate of Michael Johnston, deceased, to recover on aquantum meruit for services performed by her as a domestic servant, covering a period of twenty-two years prior to his decease. It was alleged that said services were rendered under a parol agreement intered into between Ellen Johnston and Michael Johnston, niece and uncle respectively, to the effect that if she would live with and take care of and keep house for her said uncle until his death, he would give her at his death all his property both real and personal of which he might die seized and possessed. It was further alleged that the said Michael died intestate without complying with said agreement. Mary Raycraft and the other heirs of said Michael contested said claim and pleaded the statute of frauds as well as the statutes of two and four years' limitation. The County Court approved the full claim of $6,600 against the estate, but on appeal to the District Court where the case was tried before a jury, there was a verdict and judgment in favor of Ellen Johnston for the sum of $4,000. From this judgment the contestants have appealed.

The facts established by the verdict of the jury and supplemental findings by the court, which we adopt, are as follows:

"Michael Johnston contracted and agreed with Ellen Johnston that if she would live with him, care for him and keep house for him until his death, he would, at his death, give her all the property he might then own; and such agreement and contract was subsequently renewed and repeated by Michael Johnston to Ellen Johnston during the period Ellen Johnston lived with said Michael Johnston.

"Ellen Johnston, in consideration of said agreement of Michael Johnston, promised and agreed with him to live with him, care for him and keep house for him until his death; and she performed said services, in pursuance of her said contract with said Michael Johnston, for and during a period of twenty-two years.

"The fair and reasonable value of the services rendered by Ellen Johnston, relying upon said agreement of Michael Johnston, during the entire period of such service, was $4,000; and during the four years next preceding the death of Michael Johnston, the fair and reasonable value of the services rendered by Ellen Johnston, relying upon said agreement of Michael Johnston, was $960; and during the two years next preceding the death of Michael Johnston, the fair and reasonable value of the services rendered by Ellen Johnston, relying upon said agreement of Michael Johnston, was $600."

"The said Michael Johnston died intestate, in Tarrant County, Texas, on to wit: the 10th day of December, 1903, leaving an estate consisting of a two hundred-acre farm situated in Tarrant County, Texas, and owned by said Michael Johnston during all the time said Ellen Johnston lived with him.

"During the entire period that Ellen Johnston performed said services for Michael Johnston, and upon the death of said Michael Johnston, it was the intention of said Michael Johnston to faithfully carry out the contract made with his niece, Ellen Johnston, referred to in the verdict of the jury, same being an oral contract only, by willing all of his estate to her, and a short time before his death he sent for an attorney at law, J. Y. Smith, who, at the instance of the said Michael Johnston, drafted a will, leaving all of his estate to Ellen Johnston, but said Michael Johnston failed to execute said will for the sole reason that at the time said will was drawn as aforesaid, there were no persons present who could witness the same.

"The contestants Mary Raycraft and Owen Johnston, were the sister and brother respectively, of said Michael Johnston, and said other contestants, together with said Mary Raycraft, and Owen Johnston, are legal heirs of said Michael Johnston.

"The claim of Ellen Johnston for said services was duly made out and presented to said administrator, for the sum of $6,600, and said claim was by said administrator, duly allowed for said sum, and the same was, by the Judge of the County Court of Tarrant County, duly approved for said sum, over the objection and resistance then made by said contestants, who have duly prosecuted their appeal to this court."

Upon these facts the trial court rendered judgment establishing and approving the claim of Ellen Johnston against the estate of Michael Johnston deceased for the sum of $4,000 and rejecting the same for the excess above said amount.

The only question in the case is one of limitations, since it is conceded by all parties that the contract between Ellen Johnston and her uncle was within the statute of frauds and therefore incapable of forming the basis for a cause of action. The gist of appellant's contention is couched in the propositions that the reliance of appellee on a verbal promise which came within the statute of frauds, was at all times a matter of choice, was not obligatory on her any more than upon deceased and was a contract which in no manner prevented her from enforcing her demand at any time at which she might have seen fit to do so for any wages theretofore earned; and as she had a right to sue, she could not decline to do so and yet claim that limitations did not run against her claim for wages, there being no fraud alleged or proved. The major premise of this legal syllogism, that a contract voidable under the statute of frauds as to one is also voidable as to the other, may be true; so also the minor premise that appellee's reliance upon the promise of her uncle was at all times a matter of choice and not obligatory upon her any more than upon him, may be true. But beyond this the syllogism is faulty, for it does not follow as a conclusion that notwithstanding the unenforceable agreement appellee could and therefore should have enforced her demand for wages as the services were performed. On the contrary, we understand the rule to be in such case that where a patty enters into an agreement which is within the statute of frauds, and abandons it after part performance for the reason that it is unenforceable, he can not recover on a quantum meruit for money paid or services performed under such contract. Rhodes v. Storr, 7 Ala. 346; Duncan v. Baird, 8 Dana (Ky.), 101; McKinney v. Harvie, 38 Minn. 18; Simms v. Hutchins, 8 Smed. M. (Miss.), 328; Clark v. Terry, 25 Conn. 395; Galvin v. Prentice, 45 N.Y. 162; Fillbrooke v. Belknap, 6 Vt. 383; Abbot v. Inskip, 29 Ohio, 59; Kriger v. Leppel, 42 Minn. 6. Notwithstanding the agreement between appellee and her deceased uncle was unenforceable by reason of the statute of frauds, yet appellee having performed the required services for twenty-two years upon the faith of the promised compliance upon the part of her uncle, who died without performance on his part, she was entitled to sue at his death for the reasonable value of the services rendered. Stevens v. Lee, 70 Tex. 280; Von Carlowitz v. Bernstein, 66 S.W. Rep., 464; West v. Clark, 66 S.W. Rep., 215; Waddell v. Waddell, 42 S.W. Rep. (Tenn.), 46; Wallace v. Long, 105 Ind. 522; Hudson v. Hudson, 13 S.E. Rep., 583; Lisk v. Sherman, 25 Barb. (N.Y.), 433; Renz v. Drury, 45 Pac. Rep., 71; Robinson v. Raynor, 28 N.Y. 494; Ellis v. Cary,74 Wis. 176; Reed on the Statute of Frauds, secs. 622, 623; Beach, Modern Law Contracts, sec. 650.

In such case the cause of action only accrues on the breach of the agreement, which in this case took place on the death of Michael Johnston. Stevens v. Lee, supra; West v. Clark, 66 S.W. Rep., 215; and Waddell v. Waddell, 42 S.W. Rep. (Tenn.), 46.

The court's conclusions of law upon the facts found were correct, and his judgment is therefore affirmed.

Affirmed.

ON MOTION FOR REHEARING. If it be true under the rule in this State, as set out in Carroll v. Welch, 26 Tex. 150, that appellee could have abandoned her oral contract with her uncle, and then could have instituted suit for and recovered the reasonable value of her services on a quantum meruit, it does not follow that she would be forced to pursue such course. If she chose to observe rather than to breach her contract, her cause of action necessarily did not arise until her uncle breached it, which as originally stated, was upon his death. Motion for rehearing is overruled.

Conner, Chief Justice, not sitting.

Overruled.

Writ of error refused.