53 Ind. 390 | Ind. | 1876
Lead Opinion
Jane Tarr and her husband, Green Tarr, sued James Frost and Walter W.. Chisman, executors of the will of Simeon Frost. The complaint is in two paragraphs. It is alleged in the first paragraph, in substance, that in March, 1846, the deceased entered into a contract with the father of the female plaintiff, to take her into his family and to board, educate and clothe her as his own child, until she was twenty-one years old, or was married, or until the death of the said Simeon Frost, and that she should live with him and his family during such time, and if she did so, he would, at his death, leave, give and bequeath to her a share or interest in his estate, equal in value to any share or interest had or received by any children of the said Frost; that he left surviving him two children and the descendants of three other children, who died before him; that she, in consideration thereof, by her said father, agreed to live with the deceased, as his own child in his family, and do and perform the usual labor and housework done by females in housekeeping, during said time. She alleges full performance of said contract on her part, and her marriage, on the
The second paragraph is for the price and value of'work and labor done and performed by the female plaintiff'for the deceased, at his request, in taking care of his house and family, and in performing the duties of house servant and housekeeper for said deceased for the space of nine years, of the value of three thousand dollars.
A demurrer to the first paragraph of the complaint was filed by the defendants, alleging that it did not state facts sufficient to constitute a cause of action, which was overruled by the court.
The defendants then answered:
1. A general denial.
2. That the cause of action did not accrue within six years before the commencement of the action.
3. That the contract or agreement mentioned in the complaint was not to be performed within one year from the making thereof, and the same was made in parol, and no memorandum or note thereof in writing, signed by the party charged, was made then or afterwards, by himself or any person thereunto by him lawfully authorized.
Reply in denial of the second and third paragraphs.
The trial was by a jury, and there was a verdict for the plaintiff, a motion for a new trial made and overruled, and judgment on the verdict.
It is assigned as error:
1. Overruling the demurrer to the first paragraph of the complaint.
As a reason why we should not consider the first alleged: error, it is submitted by counsel for the appellees, that the court instructed the jury that they should disregard that paragraph of the complaint.
We do not find it necessary, however, to make the case,, as to this point, turn on this ground. The objection made to this paragraph of the complaint is, that such a contract could not be enforced specifically, and that the plaintiff, if she could recover at all, must recover on a complaint for work and labor, such as the second paragraph of the complaint.
We think this position is untenable. It is true, that the contract alleged is one, the specific performance of which would not be decreed. But it does' not follow, because a court will not decree specific performance of a contract, that therefore no action for damages will lie upon it when it has been violated. On the contrary, we think such action will lie, and that the damages in this case may be measured by the value of the portion which was promised, and that the plaintiff, in such case, is not limited to the value of the-services performed, in the recovery. Bell v. Hewitt’s Ex’rs, 24 Ind. 280; Lee, Adm’r, v. Carter, 52 Ind. 342.
On the trial, the court improperly put the case exclusively on the second paragraph of the complaint, excluded a part of the evidence offered in support of the first paragraph, and finally instructed the jury to disregard that paragraph, assigning as a reason therefor that the contract set up therein was one, the specific performance of which could not be decreed. The court, however, admitted evidence, and left it to the jury to say whether the cause of action accrued on the completion of the work, or not until the death of Frost. It is urged that this was an error. We hold that there was no substantial error in this. If, on account of the erroneous instruction to the jury to disregard the first paragraph of the complaint, the jury could and did regard the second paragraph only, still, we think the variance, if
There is nothing in the question made as to the section of the statute of frauds which requires contracts not to be performed within a year from the making thereof to be in writing. The contract might have been performed within that time in one event, that is, in the event of the death of Frost within the year. Hill v. Jamieson, 16 Ind. 125; Bell v. Hewitt’s Ex’rs, 24 Ind. 280.
It is probable that, on account of the ruling of the court with reference to the first paragraph of the complaint, the amount which the plaintiff recovered was less than it otherwise might have been; but she is not complaining of this. We think there is no valid reason for reversing the judgment.
The judgment is affirmed, with five per cent, damages and costs.
Concurrence Opinion
I concur in so much of the foregoing opinion as holds that the first paragraph was good, but I dissent from the portion of the opinion which holds that the court committed no error in overruling the motion for a new trial. The court below overruled the demurrer to the first paragraph of the complaint, and upon the trial admitted proof of the contract, but excluded evidence which was offered as a basis for the assessment of the damages, and finally directed the jury to entirely disregard the first paragraph. There is no doubt that the court possessed the power to set-aside the submission of the cause to the jury and reform the issues; but having overruled the demurrer to the first paragraph, and an issue having been formed thereon, it possessed no power to direct the jury to disregard such issue. There is no cross-assignment of error by
