103 Neb. 572 | Neb. | 1919
When this plaintiff was six years old, his mother made arrangements to place him in the home of Jay L. Smith. He remained there until he was 24 years old— about 18 years — and after Smith’s decease he brought this action, alleging- that the contract between his mother and Smith was that Smith should take the plaintiff as his own son, and that the plaintiff should have a child’s share in his estate. The trial court found the issues for the plaintiff, and the defendants have appealed.
I. The first question presented is on the sufficiency of the petition. A general demurrer was filed, which was overruled, and it is insisted that this was erroneous, and that the petition does not state a cause of action. The allegation of the petition is: ‘ ‘ That during the fall and winter of 1893 the said Jay L. Smith, being anxious to get a boy, requested of the plaintiff’s mother, and also her parents, the privilege of taking this plaintiff, who was then a mere boy about six years old, and raising and bringing him up just as though he was his own son and to do by him as though he was his own child. That the plaintiff’s mother, being a widow with small and scant means, carefully and fully considered the matter, and having full and great confidence that the
2. The principal contention is that the evidence is not sufficient to support the decree. When this boy was taken into the Smith family, the family consisted of Smith and his wife. They had no children, and never had any children of their own. The defendants are the brothers and sisters of Smith and the children of deceased brothers and sisters. The plaintiff’s mother and Mrs. Smith testified as to the arrangements when the boy was taken into the family. There is no other direct evidence as to the understanding of the parties at the time. Their evidence is that the Smith family had heard of this boy, and that his mother was a widow with other children, and they wrote a letter to his mother requesting an interview and to see the boy. In answer to this
This court has been frequently required to construe and apply our statute of frauds. Its application in cases of this character has been pretty thoroughly defined in Kofka v. Rosicky, 41 Neb. 328, and other similar cases. The contract must be definite, and must be clearly proved. If there is but one witness to the terms of the contract, the circumstances of entering into the contract must be entirely consistent with its existence as testified to by this witness. The proof of part performance under section 2626, Rev. St. 1913, must be clear and unequivocal, and such part performance must be without other sufficient consideration and be so related to the contract as to render it clear that it >vas performed with reference to the contract.
When the evidence is clear and satisfactory, the duty of a court of equity is also clear. The law is as vigilant to guard against the fraud of designing persons who may obtain the consideration for a verbal agreement without the intention of performing as agreed and so obtain something for nothing, as it is to prevent obtaining property by false testimony of the existence of a contract that was in fact never made.
In this case we have the evidence of two witnesses to the contract, one of whom is apparently wholly disinterested. The circumstances render it highly probable that such a contract would be in the interest of both parties' to it. The performance of the contract by the plaintiff is equally clear. He performed all duties of a son until he became of age, without wages or other compensation than his support and the kindness of his protectors, and was regarded as a son by both Mr. and Mrs. Smith. If we say that he might have done all this for the benefits he received while rendering those services,
The judgment of the district court is
Affirmed.