Opinion op the Court by
Affirming.
This record comes to us without a transcript of the evidence. In such cases, the only question to be determined is whether the pleadings support the judgment. Bradford v. Jones,
This court will presume that the omitted portions of the record will support the judgment. Jones v. Jackson, 13 Ky. L. R., 253,
We gather from thе briefs that the plaintiff, the appellee here, is a sister-in-law of the appellant, Myers. In 1901 the parties were living in Scranton, Pennsylvania. Domestic troubles arose between Myers and his wife, and they separated. Their infant son, Floyd Myers, then about live years old, came into the hands of Mrs. Sultry, the appellee. Her husband was a miner, and shortly afterwards they moved to Butte, Montana, where he worked in the mines. The appellant moved to Louisville and married again, and has continued to reside there.
The pleadings disclose this state of case: Mrs. Sal-try filed a suit in the Jefferson Circuit Court against Myers, in which she alleged that in August, 1901, he placed his infant son, Floyd Myers, in her care and custody—
“And requested this plaintiff to rear, maintain and educate said child, and to expend such amounts as might be necessary for such purposes, agreeing and promising to reimburse this plаintiff to the extent of any and all such expenditures. This plaintiff further states that she took said child at said time and has retained the custody of him from said time until December, 1912; that she,*483 frоm her own means, provided said child with a home; maintained, clothed and educated him; nursed and cared for him in sickness with the faithfulness and affection of a mother; that said boy is now past the. age of 16 years, and that on the 27th day of December, 1912, she brought said boy from her home in Butte, Montana, for such purpose, surrendered and returned him to his fathеr, the said defendant, William C. Myers, who received him; and that the said Floyd Myers is now living with his father, the defendant. She states that she has during said time expended in the care, maintenance and education of said child, the sum of $4,974, and that defendant is indebted to her in said sum. That since the delivery of said boy to the defendant she has rendered to the defendant a full statement of said expenditures and demanded payment thereof, but the defendant has refused and still refuses to pay the same.”
A statement of the expenditures is filed with the petition as an exhibit, and she concludes with a prayer for the recovery of the amount above mentioned. The court overruled motion to make the petitiоn and the statement of account more specific, and also overruled demurrer. The defendant answered in three paragraphs. The first was a traverse; the sеcond was a plea of limitation; and the third relied upon the statute of frauds. Yerdict and judgment was rendered in appellee ’s favor for the amount sued for.
The statement of account filed with the petition, we believe, was sufficiently specific to notify the defendant of the character of claim made, and to enable him tо intelligently defend. The court did not err in overruling the demurrer. While the petition does not allege that the expenditures were made for necessaries, it shows the expеnditures were necessarily made in fulfillment of the contract.
If, in fact, the contract was oral, it would not be within the statute of frauds requiring contracts to be in writing which are not tо be performed in a year. While this contract for rearing and maintaining the child might continue for years — that is, until the child’s maturity — yet it might be terminated within a year. The child might die within a year, and in such event, the contract would be terminated.
“If the performance of a contract depends upon a contingency which may happen within a year, then it is
While the child could not receive a complete education within a year, still, had it died during the year, the plaintiff certainly would have been permitted to recover, pro tanto, the expense incurred during that yеar for education. Of course, it was not contemplated by the parties that the contract would be completed within a year, nor did they expect anything to hаppen within a year that would terminate it, but it is the possibility of such a contingency that takes the case out of the statute of frauds. Nor do we believe the statute of limitаtions can be invoked. The contract was a continuing one, and it contemplated the period of the boy’s minority and became due and payable at the expiration of that period, or when his education was completed.
For purposes of this case, it might be conceded that appellant’s position with refеrence to the statutes of limitation and frauds is correct on oral contracts, but in the absence of the transcript of evidence we cannot say that the сontract was oral. As the petition does not say whether it was written or oral, on demurrer the court would take it to be an oral contract. But the allegation was sufficient to justify the introduction in evidence of a written contract. In the absence of the evidence, and after verdict and judgment, the presumption is that the contract was written if a writing was necessary to support the judgment. In the absence of a transcript we may presume that proof of a written contract was introduced without objection, and also that without objection plaintiff proved an express promise to pay the debt, such as would take it out of the statute of limitation. The rule is that pleadings are liberally construed after verdict and judgment to sustain the judgment, whereas, on demurrer and before judgment they are strictly construed against the pleader. Any formаl defect in pleadings is deemed cured by a verdict and judgment. Winstead v. Hicks,
Appellant insists that the petition was defective for another reason. He calls attentiоn to the averment of Myers’ request of her “to expend such amounts as might be necessary for such purposes, ’ ’ and his promise to repay her for such necessary еxpenditures, and the failure to allege that the expenditures she claimed to have made were necessary. But this is a suit upon a contract, and not one to recover upon the liability imposed by law upon a parent for necessaries furnished an infant. The petition alleges that she provided the child with a home; maintainеd, clothed and educated him; nursed and cared for him in sickness, and in that way expended the amount claimed in the petition. While she does not expressly allege that thеy wbre necessaries, yet they were just such things as Myers agreed to pay for, and when one alleges that the expense was incurred in order to furnish a home, maintain, clothe and educate the child, and nurse and care for him in sickness, it would be surplusage to say that these things were necessary. The case of Ashland, etc. Ry. Co. v. Lee, 26 Ky. L. R., 699, was like this, in that there was no bill of evidence in the record. It was a suit to recover damages for personal injuries received by Lee in attempting to board a car to be transported as a passenger. The petition was defective in failing to allege facts showing a knowledge by the servants of his presence, or negligence on their part in not ascertaining his presence at the time he was attempting to ascend the steps of the car.
In that case the court said:
“In this case we have not the proof before us and we must presume that proof was introduced showing that appellant’s servants had knowledge of the presence of appellee at the time he wаs attempting to get on the car, or that the car had stopped for passengers at that place and by the exercise of ordinary care on their part they could have ascertained his presence. Without proof of this character the court could not have submitted the case to the jury, nor could the jury havе rendered a verdict for appellee. The appellant did not bring the evidence here, and it must be presumed that the lower court*486 did its duty in this regard and would not have submitted the case to the jury unless such evidence has been introduced.”
For the reasons stated, the judgment must be affirmed, and it is so ordered.