Struble, Admr. v. Struble , 42 Ohio App. 353 ( 1932 )

This case is presented upon error to the court of common pleas of Hamilton county, wherein judgment was rendered in favor of the plaintiff, Clarence A. Struble, for $5,200, after a remittitur of $2,000.

The amended petition alleges that August Struble, shortly after the death of his wife, and being some 80 years of age, entered into a verbal agreement with his son Clarence, by the terms of which it was provided that if Clarence would move into his father's home, live with him, care for him, and furnish and provide his father a comfortable home as long as the father lived, Clarence upon the death of his father should have all of the property he had left.

It is further alleged that Clarence fully performed his side of the agreement, but that the father died without doing anything to cause Clarence to receive his property; that the services so rendered were reasonably worth $7,200, for which he prayed judgment.

The answer was in effect a general denial.

The evidence sustains all the allegations of the amended petition.

The jury rendered a verdict for the full amount claimed. The court granted a remittitur of $2,000.

The chief contention of the plaintiff in error administrator is that no recovery can be had upon the contract for the reason that it is void under the statute of frauds.

The contract was in effect an agreement to make a will, or execute some other conveyance, by which Clarence should receive all the father's property at his death. Clarence fully performed his contract, and there was a complete failure on the part of the father to perform his part. Clarence has only his remedy at law to recover just compensation for his services. That he is entitled to this has been definitely settled by the Supreme Court in the case of Newbold v. Michael, 110 Ohio St. 588,144 N.E. 715. The contract in the Newbold case, while specifically mentioning a provision to make a will, is no more effective than the one in the instant case. The court holds the remedy of the one performing the services is an action at law. At page 595 of the opinion in 110 Ohio State, 144 N.E. 717, it is stated: "The extent of her remedy at law would be to recover the value of her services." And, again, on page 597 of the opinion in 110 Ohio State, 144 N.E. 717, it is said: "Entertaining these views, we are constrained to the conclusion that there is not sufficient in this record to enable us to determine that the services rendered by the plaintiff below were of such peculiar character and nature that they could not be measured by pecuniary standard, and that it would work no fraud upon the plaintiff below if she were denied specific performance of this parol agreement, but remitted to such compensation as she would be entitled in law."

We find no error prejudicial to the plaintiff in error, and the judgment is affirmed.

Judgment affirmed.

HAMILTON and CUSHING, JJ., concur.