Marx v. Hefner , 46 Okla. 453 ( 1915 )

Motion is made by plaintiff to dismiss this cause, upon the ground:

"That defendants' brief does not contain an abstract, setting forth the material parts of the pleadings, facts, and documents upon which the case was tried, sufficient to authorize the court to decide this case without reference to the case-made."

This motion has received at our hands the most careful consideration; but, under the liberal construction as to procedure in this state, we feel that the benefit of any doubt as to the sufficiency of the presentation of the assignments of error should be given to defendant, said motion overruled, and the cause considered upon its merits.

It is averred in the petition that, when the contract sued upon was entered into, plaintiffs were residents of the state of Texas, and that defendants were residents of the state of Mississippi. A copy of the contract, attached to the petition as an exhibit, purports that said contract was executed in Texas, but neither the laws of Mississippi nor the laws of Texas are pleaded in the petition to show that a recovery can be had against a minor for attorney's fees, for service rendered in behalf of a minor in relation to his property, without the intervention of a guardian. Of course, if the laws of Arkansas, which were extended over the Indian Territory, authorized a recovery against a minor for attorney's fees for services rendered him in relation to his property, upon a legal contract entered into prior to statehood, it would not be necessary to plead such laws of Arkansas, if the contract sued upon was an Indian Territory contract, as the laws of Arkansas were extended over the Indian Territory.

Section 1 of the Schedule to the Constitution provides that:

"No existing rights, actions, suits, proceedings, contracts, or claims shall be affected by the change in the forms of government, but all shall continue as if no change in the forms of government had taken place."

The purpose of this section of the Schedule is to preserve all rights already accrued, either in action, or capable of being enforced by the ordinary remedies provided for this purpose, as effectively as if the Constitution had not been adopted. But we do not find any allegation in the petition authorizing us to hold that the contract sued upon in this action was an Indian Territory contract. However, if the petition in this case does contain any averments from which it could be held that the contract sued upon is an Indian Territory contract, we, after diligent search, have been unable to find any law of Arkansas which was extended over the Indian Territory that classed attorney's fees as necessaries, for which a minor child legally contract.

The case of Owen v. Gunther, 75 Ark. 37, 86 S.W. 851, 5 Ann. Cas. 130, upon which defendants rely to support their contention that, if this contract is an Indian Territory contract, attorney's fees can be recovered for services rendered a minor in relation to his estate, not saving been decided until after the laws of Arkansas were extended over the territory, is not even persuasive that the laws of Arkansas, which were extended over the Indian Territory, authorized a recovery upon a contract, or upon a quantum meruit, for services rendered a minor by an attorney, without the intervention of a legal guardian, in relation to his estate. If the written contract averred in the petition alone is counted upon by defendants, the petition averring that said minors were, at the time of the execution of the contract sued upon, under 14 years of age, of course the petition does not state a cause of action; but there may be sufficient allegations in the petition, if the contract sued upon be ignored, to authorize a recovery upon a quantummeruit, provided a recovery can be had for the services alleged to have been performed by plaintiff for said minors. As a count upon an express contract and a count upon a quantum meruit may be joined in the same action, where the pleader is in doubt as to under which cause of action his relief sought lies, and the action upon the express contract and upon the quantum meruit, is stated in one count, there being no motion, as in the case here, to require the said two causes of action to be separately counted upon, such petition is not demurrable. Mellon v.Fulton, 22 Okla. 636, 98 P. 911, 19 L.R.A. (N.S.) 960; Kinget al. v. Stephenson et al., 29 Okla. 29, 116 P. 183; Hawleyv. Wilkinson, 18 Minn. 525 (Gil. 468); Wagner v. Nagel,33 Minn. 348, 23 N.W. 308; Plummer v. Mold, 22 Minn. 15; Mandersv. Craft, 3 Colo. App. 236, 32 P. 836. Hence we will consider, for the purpose of testing said demurrer, that the petition in this case is a good petition upon the express contract, and upon a quantum meruit, notwithstanding the better practice would be to count separately upon the express contract and the quantum meruit.

The petition fails to state where the contract was made, and fails to plead the laws of the foreign state in which said contract was made; and it will be presumed that the laws of the state in which the contract was made are the same as the laws of the forum, controlling the trial under which the rights of the parties are to be determined.

In the case of Hays v. King, 143 P. 1142, Judge Brewer, speaking for the court, says:

"Where a contract made in a foreign state is sought to be enforced in another state, the lex loci contractus controls the construction of the contract, except where it provides otherwise, and the laws of the state where the contract was made will be observed, of course being pleaded when necessary, in determining the rights and obligations of the parties, and effect given thereto, unless such foreign laws are irreconcilable with the local laws, or conflict with the established policy of the enforcing state."

As the petition fails to plead where the contract was made, and the laws of such state, as to the legality of the contract, not having been specially pleaded, in the absence of such special pleas, it will be presumed that the laws of the state in which the contract was made are the same as the laws of the forum, controlling the trial under which the rights of the parties are to be determined. Hoshaw v. Lines, 30 Okla. 67,120 P. 583, 38 L.R.A. (N.S.) 239; Greenville Nat. Bank v.Evans-Snyder-Buel Co. et al., 9 Okla. 353, 60 P. 249.

Where a contract, made in a foreign state, is sought to be enforced in another state, it is necessary, in order that the laws of the foreign state may prevail as to the construction of the contract, that the same be pleaded and proved. In the absence of pleading that the contract sued upon was made in a foreign state, and the laws of the foreign state, the laws of the forum must prevail. In other words, the presumption is that the laws of the foreign state are the same as those of the state of Oklahoma.

Under the laws of this state, a recovery cannot be had against a minor for attorney's fees for legal services rendered

In Grissom et al. v. Beidleman et al., 35 Okla. 343,129 P. 853, Ann. Cas. 1914D, 599, Justice Williams, speaking for the court, said:

"We believe that the rule in New Hampshire, followed in Massachusetts and other states, should prevail here. That is, where the services pertain to the defense of the liberty or person of a minor, or the prosecution of action for an injury thereto, that the same should be classed as a ``necessary,' and an action lie against the minor for a reasonable recovery for attorney's fees; but, where the legal services are rendered in behalf of the * * * legal guardian, no recovery for such services should be had in an action at law."

As a recovery, neither upon the express contract sued upon, nor upon a quantum meruit, can be had under the petition in this case against said minor, the petition upon which this cause was tried does not state facts sufficient to constitute a cause of action; and the court committed reversible error in overruling the demurrer directed against said petition.

Inasmuch as the error in overruling said demurrer to the petition must result in reversing and remanding this case, we do not deem it necessary to consider the other questions presented by this appeal.

It follows that this cause should be reversed and remanded.

By the Court: It is so ordered.