Beeler v. Finnel

85 Mo. App. 438 | Mo. Ct. App. | 1900

ELLISON, J.

— This action is on an account for board of a woman and her child; Plaintiff recovered judgment in the trial court for $799.87.

The evidence in plaintiff’s behalf tended to show that defendant took an unmarried woman to a hospital in St. Joseph, Mo., where she gave birth to a female child. That afterwards he aided in procuring board for the mother with a private family in said city. That he furnished the money to pay the woman’s board at these places. That afterwards he procured board for the woman and child at this plaintiff’s house and afterwards visited them several times. That he agreed to pay plaintiff for their board at $3.50 per week and that he made several payments covering a considerable period of time. In short, there is ample evidence to sustain the verdict on the question of facts presented in issue at the trial, and the only matters to consider are the questions of law now insisted upon by defendant; viz., the statute of frauds and the statute of limitations.

Defendant says that if he promised to pay the board it was a promise to pay the debt of another, and not being in writing is invalid. That if he should grant he was the father of the child, yet he was under no legal obligation to support it or the mother. Conceding these propositions to defendant, it will not avail him anything. For the plaintiff does not make the claim as for the debt of the woman which defendant agreed to pay but her claim is on defendant’s original promise to pay the board as his own debt. It is. defendant’s original undertaking for which he is bound and to which the statute of frauds does not apply. Neither does the statute of frauds apply which requires contracts not to be performed within one year to be made in writing, for this contract was not one which by its terms could not be performed in one year. On the contrary, it might possibly have been. Harrington v. Railway, 60 Mo. App. 223, 230.

The statute of limitations does not apply to a running account where there has been a payment within the period of time limited for bringing the action. The account was continuous and there is no merit in the suggestion that it accrued at the end of each month so as to bar all months more than five years prior to the commencement of the action.

It appears that the mother only remained with plaintiff a few months when she went away leaving the child. But the evidence tended to show that.the defendant agreed to pay the same board for the child left in the sole care of plaintiff that was to be paid for the mother.

We have gone over the evidence in this cause and find that it presents slight reason for this appeal. If it be conceded that plaintiff, as charged by defendant, undertook to collect more from him than would measure his legal liability, yet that affords no excuse for not responding to that sum which the jury has found he promised to pay.

The judgment will be affirmed.

All concur.