Brown v. Austin

| Or. | Nov 8, 1921

BURNETT, C. J.

The plaintiff’s testimony is to the effect that he was about nine months of age when his father died, in February, 1885, and that he attained the age of twenty-one years in May, 1905. It is admitted in the pleadings that his mother married Gardner in September, 1885. He states that in the autumn of 1904, prior to his coming to the age of majority, he had a talk with Gardner and his then wife, plaintiff’s mother having died and Gardner having married again. He said he had been informed by one of the defendants that there was money coming to him from Gardner and that during that talk referred to, which he afterwards had with Gardner and the latter’s wife, “They owned up to it that I had money coming from my father, and they told me, then and there, that if I didn’t make any trouble for them, they would give me an equal share with the rest of the children.” He further says in substance that after the death of the then Mrs. Gardner, “My stepfather said at different times that he would give me an equal share with the rest of them. He came to my place and lie said lie was going to see that I got my share just like the rest of them.” Interrogated as to the property that Gardner left at his death, he stated that it was realty. There is no testimony that Gardner had anything but real estate at the time of his death. The plaintiff also offered in evidence a claim which he presented to the defendants as executors, in this form:

“Estate of George Gardner, Deceased,

To Charles Brown, Dr.,

For moneys due Charles Brown, at time of attaining his majority, on May 30, 1905, with interest to date:

Amount due, May 30th, 1905..........$1,000

Interest at six per cent per annum to date.............................. 448

Total, $1,848 [sic]

Less amount of bequest in Will of said

George Gardner, deceased.......... 400

Total amount due, $1,448

“Interest is also demanded on the said sum of $1,000 until paid.

“Note: After the death of the father of the said Charles Brown, to wit, Paul Brown, and the marriage of mother of Charles Brown, to the said George Gardner, there was loaned to the said George Gardner, by the said Charles Brown’s mother (then Mrs. George Gardner), the sum of $450, which moneys came from the estate of the said Paul Brown. This money was loaned to the said George Gardner, with the distinct understanding and agreement, that at the time the said Charles Brown should attain his majority, the said George Gardner should pay to him the sum of $1,000, being the said $450 and the agreed accumulated interest to that time; on Charles Brown becoming of age, he demanded the money from the said George Gardner, his stepfather, bnt was put off with the promise that when the said George Gardner died, he would receive the said sum of $1,000 with interest to date. The Will, however, only leaves to this claimant herein, the sum of $400.”

The only writing produced in evidence was this claim presented to the executors.

1. The plaintiff has not appealed, and hence we must accept the theory upon which the Circuit Court permitted the case to go to the jury, which was, that there was sufficient in the complaint upon which to found an action as for money had and received. If the plaintiff would recover the sum of $1,000 and interest on such a theory, it must be by virtue of the traversed allegation to the effect that the deceased contracted with the plaintiff’s mother to pay him $1,000 when he should arrive at the age of twenty-one years. This was a contract not to be performed in one year, as disclosed by the evidence; and since there is no writing on the subject it is void under Section 808, Or. L., which says that evidence of an agreement shall not be received other than the writing or secondary evidence of its contents in the cases prescribed by law, in case of an agreement that by its terms is not to be performed within a year from the making thereof. 'Again, on the face of the claim presented to the executors and exhibited in evidence, it appears that the claim was barred by the statute of limitations, which the law forbids the administrators to allow: Section 1241, Or. L. The allowance of such a claim by the administrator having been interdicted, the statute cannot be evaded by an action based on the same claim.

2. The allegation respecting the demand made by the plaintiff upon Gardner for an accounting, which is quoted above, does not operate to toll the statute as upon a new promise. It is true that Gardner is said to have informed the plaintiff that if the latter would forego payment of the $1,000, Gardner would provide for him in his last will and testament. This constitutes an offer on the part of Gardner, but it is not stated anywhere that the plaintiff accepted that offer and agreed to forbear to sue. For all that appears in the pleadings, the plaintiff could have commenced an action against Gardner the next day, for the $1,000. In that case, if the latter had set up the matter quoted as a defense, the plaintiff could have said to him, “True enough, you offered to remember me in your will, but I did not accept the offer or agree to take that in lieu of payment of the $1,000 you owed me.”

The court erred in refusing judgment of involuntary nonsuit. The judgment is reversed and the cause remanded for further proceedings not inconsistent herewith. Reversed and Remanded.

McCourt and Rand, JJ., did not participate in this decision.