Larimer v. Kelly

10 Kan. 298

• Court: Supreme Court of Kansas
• Decided: July 15, 1872
• Status: Published

Opinion

The opinion of the court was delivered by

Brewer, J.:

The petition filed by defendant in error alleged in substance that in July 1864 Mrs. Kelley and Mrs. Larimer, the parties hereto, were taken captive by the Sioux Indians; that both escaped, Mrs. Larimer in forty-eight hours, and Mrs. Kelley after five months; and afterward, and in December 1865, in Johnson county, Kansas, they entered into an agreement to prepare a statement of their experiences in captivity, and publish the same with the names of both appearing as the authors. The expenses of the publication were to be borne by Mrs. Larimer, and the profits equally divided; that in May 1869, when the manuscript was nearly completed, Mrs. Larimer secretly and fraudulently took possession thereof, carried it to Philadelphia, and there published it in her own name, and'as her own work, thereby depriving Mrs. Kelley of the credit and reputation of such authorship, and her share of the profits of such publication; that the other defendant, "William J. Larimer, conspired with Mrs. Larimer in thus defrauding plaintiff of her rights, and aided and abetted and counseled in the commission of such fraudulent acts. To this petition was filed an answer, setting up 4 five defenses: 1st, a general denial; 2d, a specific denial of any agreement or partnership, verified by the affidavit of Mrs. Larimer; 3d, an averment that at the time of the alleged agreement Mrs. L. was the wife of her co-defendant, and had no trade, business or property on her sole account, and had no earnings from any such trade or business, or the performance of any labor or services, and was incapable of making any. such contract, and was not authorized thereto by her husband; 4th, that plaintiff was at the same time a married woman, and incapable of such contract; 5th, that the alleged arrangement was not to, be performed within one year, and was not in writing, nor evidenced by any note or memorandum signed by defendants, or any person thereunto authorized. To these last three defenses a several demurrer on the ground of insufficiency was filed, and sustained by the court; and the rulings on this demurrer present the first question for our consideration.

i. contracts women”6 The third and fourth defenses are, that a feme covert cannot make a contract such as is set forth in the petition. That ■contract is one for labor. Each is to furnish her skill and knowledge, her time and labor, in the production of a book. The nature of'the contract is the same, whether the object sought is the production of a book, or the fencing of a farm. Each is a contract for labor and services. The married woman’s act of 1859, the law in force at the time of this contract, (Comp. LaAvs, p. 698, § 10,) authorizes any married Avoman to perform any labor or services on her sole and separate account, makes the earnings therefrom her sole and separate account, and declares that she may sue and be sued, as if sole, in regard to such labor, services, and earnings. If she can perform labor and services on her separate account, she can contract for them. If she performs them, she can recover for them. The coverture of the parties ■did not therefore aAroid their contract, and the demurrer to .the third and fourth defenses Avas properly sustained.

The fifth defense presents a question under the statute of frauds. Sec. 5 of that act, (Comp. LaAvs, 569,) is thus:

“Sec. 5. No action shall be brought, Avhereby to charge the defendant * * * upon any agreement that is not to be performed Avithin the space of one year froni the making thereof, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged thereAvith, ■or some other person thereunto by him or her lawfully .authorized.”

■2. statute of tract?; C011' „ . , necessary. 4. Heading; contradictory defenses. The pleader has in this fifth defense used the very language •of this section, and has thereby alleged that Avhich, if true, constitutes a perfect defense to an action for a breach of such an agreement. The laAAr declares that no action can be maintained on an agreement that is not to be performed Avithin one year, unless such agreement is evidenced by some writing. The pleader alleges that this .agreement AAras not and Avas not to be performed within a year, and that there AArere no writings. Does not that bring the ■case Avithin the statute? But it is said by counsel for defendant in error that this fifth defense is insufficient “because before the defendants below could set up the statute of frauds they must admit the contract, and then show that ft was voicj foy the provisions of 'the statute. A plea in avoidance cannot be interposed until a confession of the agreement has been made.” If counsel mean by this to claim that this defense must contain a formal admission of the making of the agreement set forth in the petition before alleging that it was void by the statute, we think they mistake the rules of code pleading. Whether the allegation, that the supposed agreement was void, is an implied admission that such an agreement was made, so as to avoid the necessity of proof, may or may not be correct. Whether correct or not, it does not determine the sufficiency of this defense. All that the defendant need state is his defense. The petition alleges an agreement. The defense is that such agreement was void. Is it not enough to allege, that the supposed agreement set forth in the petition was void, and , _TT . , _ . _ n _ , whyc We think it states the defense, and is therefore enough. If counsel mean to claim that it is insufficient because contradictory to the second and verified defense, and that contradictory defenses are not tolerated, this answer is complete: such objection cannot be raised by demurrer. The question on demurrer is, whether this defense be sufficient; not, whether it contradicts or is inconsistent with some other. We think therefore the court erred in overruling the demurrer to this fifth defense. It does not follow, even if the alleged agreement should turn' out to be void on this account, that the plaintiff would be remediless, or that the defendants could without liability appropriate the fruits of her labor. If they have taken her property they are responsible for all damages she may have sustained thereby. With reference to the scope of this clause of the statute, and the contracts included within it, see 2 Parsons on Contracts, 316, and notes.

The pleading, process and journal entries are certified to by the clerk, and any errors apparent in these are therefore properly before us for examination; and the matters we have thus far considered arise on the pleadings.- The record,, which is very voluminous, embracing' some three hundred pages, contains also a case made. In this appears some of the testimony, all the instructions,- and a part of the special findings, and motions subsequent to the verdict. It is earnestly insisted that the case made must be complete in itself,, and include “so much of the proceedings and evidence, or' other matters in the action as may be necessary to present', the errors complained of,” and that from the testimony and’ instructions alone, without the pleadings, it is impossible to affirm error. As the examination already made compels us to order a reversal we shall not consider the question thus raised, nor the various errors claimed to exist in this case. ¥e shall content ourselves with laying down certain princL pies and deciding certain matters which may assist in the-subsequent trial of the case. And first, we consider the' petition sufficient. It presents facts which if true entitle the-plaintiff to relief. Before one is competent as- an expert .to1 testify as to the value of the manuscript alleged to have been-taken by defendants he must show that he is a publisher, or familiar with the publication of books, and the values of manuscripts like the one in question. The measure of damages for breach of the contract as shown in the petition would be one-half the value of the manuscript at the time it was-taken by defendants. There is no allegation of any delay in the preparation caused by the defendants. It is perhaps-unnecessary to proceed further in this direction.

The judgment of the district court will be reversed, and-the case remanded for further proceedings.

All the Justices concurring.

—The case being remanded to the district court, and the' order of reversal entered, the plaintiff, Mrs. Kelley, on leave filed a reply to the fifth defense stated in the answer. The substance of this reply is stated in the opinion, infra. The defendants demurred to the reply. The case was heard on this demurrer at the March Term 1873 of the district court. The demurrer was overruled. A motion was also made by defendants to dissolve the attachment unless plaintiff should give an undertaking to support the same, on the ground that defendants had, since the issuance and service thereof, become residents of this state. The motion was overruled and denied, and from the orders overruling the demurrer and denying the motion to dissolve the attachment defendants Larimer and Larimer appeal, and bring the case here on error for review. The case was heard here, on this second appeal, at the July 'Term, 1873.

L. W. Keplinger, for plaintiffs in error:

1. The court erred in overruling demurrer to the reply. Said reply shows defendants’ cause of action to be barred either by the statute of frauds or the statute of limitations. The reply alleges that the contract sued on was to be performed within one year, or it does not. If it does not, her ■cause of action is barred by the statute of frauds. If it does, her cause of action is barred by the statute of limitations.

The reply is composed of two distinct parts, which are entirely different in nature and design. The first is an attempt to evade the statute of frauds, while the second is exclusively devoted to an attempt to extricate the cause of action from the statute of limitations. So far as the questions raised by the fifth defense stated in the answer are concerned, our law -divides all verbal contracts into two classes: first, those which .are to be performed within one year; second, all other verbal contracts. The contract sued on must belong to one or the ■other of these two classes. There is no third class. It was to be performed within one year, or it was not. There is no obscure middle ground for it to occupy, nor can it be on one .side the line for the purposes of the statute of frauds, and on the' other for the purposes of the statue of limitations. If the first part of the reply saves the contract from the statute of frauds, it is simply and solely because it is equivalent, in legal effect, to an allegation that the contract was to be performed within one year, for there is no other defense known to the law. If this reply be true, if the contract was “to be” performed within one year from December 1865, plaintiff’s right of action for any possible breach of the contract sued' on was barfed by the statute of limitations long before this action was instituted. After the year expired, defendants were liable at any time within the period prescribed by the statute of limitations for any breach of the contract which had occurred prior to the expiration of the year, but the instant the year expired defendants’ power to break the contract expired also. But the second part of the reply alleges a> modification of the original contract which continued it in force until May 1869. This is impossible. The slightest effort of the parties to prolong the life of the contract by extending the time necessarily proved fatal. The first part of the reply temporarily rescues the cause of action from the statute of frauds, but strands it upon the statute of limitations. The second part of the reply extricates cause of action from the statute of limitations only to leave it hopelessly shipwrecked upon the statute of frauds. The channel between the statutes is too narrow for her craft.

2. The court erred in overruling the motion for a discharge of the order of attachment: ist, Because the pleadings show no cause of action against the defendant; 2d, Because the grounds upon which the order was issued no longer exist. If the plaintiff persists in keeping defendants’ property tied up for years after they have ceased to be non-residents, it is within the authority of the court to discharge the order of attachment, or compel plaintiff to give security, even in the absence of express statutory authority. Otherwise nonresident defendants might suffer irreparable damage at the hands of malicious and unprincipled plaintiffs, without' the possibility of relief. A plaintiff might claim exorbitant damages, and attach every dollar’s-worth of a defendant’s property for the purpose of hampering him in his defense, and the forms of law and courts thus be made to subserve the ends of private animosity.

W. A. Johnson, for defendant in error:

1. The contract sued on, and set forth in the petition was ■not, by its terms, “not to be” performed within the space of one year from the making thereof; that is, the contract did not in terms stipulate and provide specifically for its performance at a specified time more than a year beyond the day on which it was made. Not so providing, the contract is valid. Where no definite time is fixed between the parties in which a contract is to be performed, the law presumes that it is to be done in a reasonable time; and if the labor necessary to complete a contract can be performed in one year it is not void as against the statute of frauds. A contract is not void under the statute of frauds unless it is a contract by the terms of the agreement, not to be performed within one year. Gen. Stat., ch. 43, § 6; .3 Pars. Con't., 35.

2. But for the purpose of this suit we claim that it makes no difference whether the agreement is in derogation of the Statute of frauds or not. The plaintiff prepared the manuscript for her history as alleged, and the defendants tpok and appropriated the fruits of her labor, secretly and fraudulently, and without her knowledge or consent, and thereby greatly ■ damaged her. They sought to make a profit from the experience and suffering as well as of the labor of the plaintiff; and they are answerable to her in damages. 3 G. Greene, 228.

3. Plaintiffs in error claim that the reply shows the cause of action to be barred either by the statute of frauds or the .statute of limitations. The petition and the reply of the plaintiff below both show clearly that her cause of action •accrued to her in May 1869, within the period prescribed by the statute of limitations.

4. The second error alleged by plaintiffs in error is that the ••court erred in overruling their motion for a discharge of the order of attachment. There was no error. The attachment was rightly sued out, and rightly levied on defendants’ property. A change of domicile by a defendant cannot make that wrong which was right when done. The attachment having properly issued and there being sufficient cause for attachment no subsequent act of the defendant other than payment of the debt or giving the undertaking as required by law will relieve his property from that liability.

„ „ , oi^andper?s fmmance of. o. pleading; frauds. The defendant in error, Fanny Kelley, filed her petition in the district court of Allen county on the 26th of October 1870 against Sarah L. Larimer and William J. Larimer, the plaintiffs in error. ' A judgment rendered in her favor was reversed by this court in October 1872; (ante, pp. 298, 303.) The ground of reversal was error in sustaining a demurrer to the fifth defense stated in the answer. It appears by the record in this case that thereafter a reply Ayas filed to this fifth defense, and a demurrer to that reply Avas overruled, and this ruling is one of the errors now complained of. The substance of the petition, and of said fifth defense, were fully stated in the opinion filed in the former case, and it will be unnecessary to repeat the statement here. It is enough to say, that the petition alleged the making of a contract in 1865 to mutually write and publish a book, and that in 1869 Mrs. Larimer carried off the manuscript then nearly completed, and published the book as her oAvn production, and for her individual profit. The fifth defense stated in the answer alleged that this contract Avas not to be, and Avas not, performed Avithin one year, and was in parol, and therefore void under the statute of frauds. The reply alleges that no definite time Avas fixed in said contract Avithin which the manuscript Avas to be prepared, but that the same was to be prepared as speedily as possible, and that it could have been completed within one year with ordinary attention and labor; that the parties prosecuted the same from time to time, and treated it as a continuing contract, until May 1869, and that each party continued said contract in force by mutual agreement until May 1869; that the contract as set forth in the petition had been by mutual consent and agreement kept alive and in full force until May 1869, and was then well known and understood by the parties to be the contract under which the book was to be published for their mutual benefit. Was-the demurrer to the reply properly overruled? We think it clearly was. In 2 Parsons on Cont., 316, the rule is thus stated: “If the executory promise ggpg^g 0f entire performance within, one year it is not within this clause of the statute. The decision of the question does not seem to depend entirely upon the understanding or intention of the parties. They may contemplate' as probable a much longer continuance of the-contract, or a suspension of it and a revival after a longer period; it may in itself be liable to such continuance and revival, and it may in this way be protracted so far that it is not in fact performed within a year; but if, when made, it Avas in reality capable of a full and bona fide performance Avithin the year, without the intervention of extraordinary circumstances, then it is to be considered as not within the statute.” The reply clearly brings the contract Avithin the rule thus laid dÓAvn. Nor does the reply present any departure from the petition, or allege a new or modified contract, within the scope of the authorities cited by plaintiff in error. The contract as disclosed in the petition Avas apparently valid. The petition did not allege when it Avas to be performed, nor did the contract appear at all incapable of easy performance within one year. Prima fade then it Avas good. The answer plead the statute in hcee verba. A general denial in the reply would probably have been sufficients Instead thereof the pleader alleges specifically that the contract Avas capable of performance Avithin one year, and by agreement Avas to be performed as speedily as possible. If true, this overthrows and is a complete reply to the defense set up in the ansAver. The ruling of the district court on the demurrer must be sustained.

„ , . 7. Attachment: - ?hSigesof domicile. One other question is presented in the record. A motion was made to dissolve the attachment, or to require the plaintiff to give security. This motion Avas overruled. It is alleged that the court erred in this, 1st, because the pleadings show no cause of action against the defendant. This reao : s°n is disposed of by the decisions already made, jn £ormer e age of Larimer v. Kelley (ante, p. 303,) we decided that the petition was good, and we have now decided that the reply is sufficient. The second ground for discharging the attachment is, that the grounds upon which the order of attachment was issued no longer exist. The defendants were non-residents when the suit was commenced. An order of attachment under those circumstances properly issued without the giving of any undertaking. Code, Gen. Stat., pp. 664, 665, §§ 190, 192. They have since become residents, and upon that ground insist that the attachment ought now to be discharged, or at least an undertaking required. There is nothing in the statute authorizing any such action as was asked. There is nowhere any intimation that the defendants can by removing into the state after the commencement of a suit, affect the lien of an attachment rightfully issued and rightfully levied. We are referred to no authorities which sanction such practice, and it does not appear to us to be consonant with the spirit and purpose of the attachment law. The attachment does not divest the defendants of title to their property; it only enables the plaintiff to obtain security for an anticipated judgment. And when .that security has been once properly acquired, we suppose it will remain until the final disposition of the case, unless released raider some express provision of the statute.

These being the only questions in the record the judgment will be affirmed.

All the Justices concurring.