Cooper v. Claxton

Fish, P. J.

(After stating the facts.) 1. We think it is apparent that the petition, properly construed, set forth only two causes of action, one, in the fourth paragraph, being for the value of the plaintiff’s services from January, 1876, to December 25, 1881, the value alleged being $300 per year,-with interest upon the total amount from the last-mentioned date ; the other being upon a breach of the contract made by the plaintiff’s father with Sammons, for the plaintiff’s benefit, for one half of the value of *599 Sammons’ estate at the time of his death, alleged to be $15;000, with interest from such time. While the petition alleged that the contract of Sammons with the plaintiff’s father “was renewed from year to year during the said period of' service,” and was renewed after-the petitioner became twenty-one years old, it nowhere alleged that Sammons ever made this contract, or any other, with the plaintiff. Strictly speaking, the contract with the father could not have been renewed with the son; for a contract between Sammons and the son, although embracing the same terms as the original contract between Sammons and the father, woidd be between different parties, and therefore a new- contract; so that, prima facie, the allegation that the contract was renewed would imply that the renewal was between the original parties, Sammons and the plaintiff’s father. Certainly the allegation that the “ contract was renewed from year to year during the said period of service ” is obliged to refer, and to refer only, to the contract between the plaintiff’s father and Sammons, as the.only period of service previously referred to is that between January, 1876, and December 25, 1881, which was embraced in such contract and during which the plaintiff was a minor. After the plaintiff became of age, this particular contract .could not have been renewed, even between the father of the plaintiff and Sammons, because the period of time during which the services, under this contract, were to be performed had completely, elapsed, and all the services had been rendered; as to one side it had become an executed contract. Even if the past consideration and the moral obligation of Sammons to the plaintiff would have been sufficient to support a promise by Sammons to the plaintiff to pay him for services already rendered, in exactly the’same way that the contract between the father and Sammons provided, this would not have been a renewal of the old contract, but the making of a new one; for it would not only be a contract between different parties, but would be one in which there was to be performance on one side only, while the old contract was one of reciprocal promises.

2. The nearest approach to an allegation that Sammons entered into a contract with the plaintiff is contained in the sixth paragraph of the petition. But the allegation that the plaintiff “ lived with deceased a long period of' time after he became of age and *600 worked for him without compensation, with the understanding and by the promise and contract of deceased that he would provide by will or otherwise that petitioner should have one half of his estate,” is too vague and indefihite to .set forth a contract, especially when it is assailed by a demurrer upon the ground that it fails to set out how the contract was renewed, or what the terms were. In the first place, the allegations of this paragraph leave it uncertain whether the contract of Sammons referred to is the contract between him and the plaintiff’s father, or a new contract between Sammons and the plaintiff. In the next place, even admitting that the contract referred to is a new one between the plaintiff and Sammons, there is only a partial and meager statement of such contract. Sammons promised to provide by will or otherwise that the plaintiff should have one half of his estate,, but upon what condition, or conditions, he promised this is not stated. What was the consideration for Sammons’ promise ? What was the plaintiff to do ? If he was to live with and work for Sammons, how long was he to do so? Was it until Sammons’ death, or for a definite period of time which elapsed before Sammons died ? It is apparent that none of these questions can be answered from the plaintiff’s petition. He simply alleges that after attaining ■ his majority he lived and worked for Sammons a long period of time, “ with the understanding and by the promise and contract of ” Sammons, etc. Clearly this paragraph of the petition, if it can be said to allege any contract between Sammons and the plaintiff, could not withstand a demurrer which called for definite and specific allegations as to the terms of the contract relied on.

. 3. The count-for the value of the plaintiff’s services from January, 1876, to December 25, 1881, inclusive, being based, not upon an express contract which postponed the maturity of the debt beyond the date of the termination of the services, but upon an implied contract to pay the reasonable value of the services, was clearly barred by the statute of limitations when four years had elapsed after the termination of .such services and after the plaintiff had attained his majority. Civil Code, § 3768.

4. The express contract set up in the petition, under which the payment for the services rendered by the plaintiff was to be made at the death of Sammons, was made not with the plaintiff, who *601 was- a minor when this contract was entered into, but with his father, and the violation of this contract afforded no cause of action to the plaintiff. The plaintiff was neither a party nor a privy to this contract, but a mere stranger thereto, and lienee could not maintain an action thereon. Gunter v. Mooney, 72 Ga. 205 . The case cited is directly in point and controlling here. There “ A woman and another entered. into a written agreement on July 15,1862, whereby the other party was to take the son of the woman, feed and clothe him, and give him a common-school education, and a horse, bridle, and saddle when he became twenty-one years of age; the son became of age in December, 1874, and brought suit in 1880, alleging a breach of the covenant, in that the person so agreeing had failed to give him a common-school education.” It was held,-“that the plaintiff could not maintain an action of covenant on the agreement set out, he not being a party or privy to the same, but a mere stranger; and the case was properly dismissed on demurrer.” To the same effect, see Austell v. Humphries, 99 Ga. 408 . The case of Harris v. Johnson, 98 Ga. 436 , is relied on by the plaintiff in error. There is nothing in the decision rendered in that case which conflicts with the ruling made in Gunter v. Mooney , or with our rulings in the present case. The observations of the present Chief Justice, ill the case cited by counsel, to the effect that where a widow made a contract similar to the one involved in Gunter v. Mooney , “it was a virtual relinquishment of her custody and control of the-child and of her right to receive compensation for his labor,” and that if the person who made the contract with the mother “ had lived until the child became of age and Had then refused to carry out his agreement with the mother, . . the child could have brought an action against him to recover the value of his services,” • are not in conflict with the present holding, or the case upon which it is predicated., In the particular count with which we are now dealing, the plaintiff is not seeking to recover the value of his services, but, like the plaintiff in Gunter v. Mooney , is suing upon an express contract, to which; under the ruling in that case, he was neither a party nor a privy. Besides, the case in which the learned Chief Justice made the remarks above referred to did not turn upon the question on which these observations were made. We have shown that the *602 only count in the present petition based upon a quantum meruit was for the plaintiff’s services from January, 1876, to December, 25, 1881, inclusive, and that the cause of action set up in this count was barred when the suit was brought, as the time limited by the statute within which to bring an action upon an implied assumpsit had expired long before the suit was instituted, the services relied on having terminated and the plaintiff having become of age on December 25, 1881, and the action not being brought until February 8, 1904. The judgment complained of is Affirmed.

All the Justices concur.