69 Mo. App. 6 | Mo. Ct. App. | 1897
This is an action on a parol contract. The petition, inter alia, alleges: “That on the said-day of December, 1893, the said Job Denny and the plaintiff herein, entered into a contract, whereby the said Job Denny agreed that if the said plaintiff would board, lodge, and care for the said Denny at such times as said Denny might desire to board and lodge with plaintiff during his lifetime, he, the said Denny, would, -at his death, leave by will the sum of two thousand dollars to the plaintiff for .the services to be so rendered by plaintiff. Plaintiff states that he accepted said contract, and relying upon the promise of said Denny to carry out said contract on his part, by leaving by will at his death to plaintiff the sum of two thousand dollars, as by his said contract, he had agreed to do, plaintiff boarded, lodged, and cared for said Denny at all times the said Denny desired the same. And notwithstanding the complete performance of said contract on the part of the plaintiff, the said Denny wholly failed and neglected to carry out said contract on his part.” . It concluded with a demand for judgment for $2,000.
And in Gupton v. Gupton, supra, it was said that a verbal agreement of this sort, in case of part performance, will authorize a decree giving that agreement full force and effect. And similar rulings have been made elsewhere. Jenkins v. Stetson, 9 Allen, 128; Parker v. Coburn, 10 Allen, 83; Pursell v. Stryker, 41 N. Y. 480; Thompson v. Stearns, 71 Pa. St. 161; Caveness v. Rustiton, 101 Ind. 502; Wellington v. Apthorp, 145 Mass. 69. When the agreement has been wholly performed by the promisee, and partly performed by the promisor, or may be performed within a year, the statute of fraud is inapplicable. Gupton v. Gupton, supra; West v. Bundy, 78 Mo. 407; Anderson v. Shackley, 82 Mo. 250; Sharkey v. McDermott, 91 Mo. 647; Wellington v. Apthorp, 145 Mass. 69.
The case most resembling this in its salient features is that of Wellington v. Apthorp, supra, where the oral agreement was to the effect that if the promisee would accompany the promisor on a visit to California and Nevada, in consideration thereof and of the services the promisee had rendered and might thereafter render the promisor respecting the management of her property, she would make a will giving the promisee $5,000 and pay the expenses of said visit. The promisee performed the agreement, but the promisor died without doing so. In an action on the agreement by the promisee against the administrator of the promisor, he recovered judgment for the $5,000 and the amount of his expenses of said visit. In disposing of the case, the court, in its opinion, said that: “It is competent for a valid oral contract to be made to leave a certain sum of money by will to a particular person, in consideration of services to be rendered by
In Train v. Gold, 5 Pick. 380, it is said that, if A. promises to B. to pay him a sum of money, if he will do a particular act, and B. does the act, the promise thereupon becomes binding, although B., at the time of the promise, does not engage to do the act. And this doctrine found recognition in Gardner v. Webber, 17 Pick, 407; Barnstone v. Sams, 104 Mass. 214; Goward v. Waters, 98 Mass. 596. In Cottage Street Church v. Kendall, 121 Mass. 528, it was held that “where one promises a certain sum of .money for doing a particular thing, which is done before the money is paid, and the promisee does the thing on the faith of the promise, which was before but a mere revocable offer, thereby becomes a complete contract upon consideration moving from the promisee to the promisor as in the ordinary case of an offer of reward.” See, also, Paige v. Parker, 8 Gray, 211; Todd v. Weber, 95 N. Y. 181; Miller v. McKenzie, 95 N. Y. 575.
The nearest approach to this case of any of those in this state that we have seen is that of Koch v. Hebel, 32 Mo. App. 103. There the father promised his daughter that if she would take care of him as long as he lived, he would give her his home. The promisee complied with the agreement, but the promisor did not. The promisor was allowed to recover the value of her services against the estate of the promisor in an action on a quantum meruit. In the course of the opinion, it was said by the judge who delivered the same, that it was declared upon the authority of Sutton v. Hay and Sharkey v. McDermott, supra, “that when a
The case stated by the petition before us is that in consideration that the plaintiff would permit the deceased to come to his hotel as often as he pleased and remain as long as he pleased, without charge, the deceased would in his will bequeath to the plaintiff $2,000; that the plaintiff performed the consideration on his part, and that the deceased failed to make the said testamentary provision as he had agreed to do. There is nothing in any of the cases within or without this state to which our attention has been called which announces any principle that is an impediment to the plaintiff’s right to recover on the agreement in this form of action. We must think that the defendant’s objection to the petition is not well taken.
After looking through the entire record, -we discover no ground which would justify any interference by us with the judgment, which must accordingly be affirmed.