Prater v. Prater , 94 S.C. 267 ( 1913 )

The opinion of the Court was delivered by

Mr. Chiee Justice Gary.

The facts in this case are fully stated, in the decree of his Honor, the Circuit Judge, which will be reported.

After finding that the contract alleged in the complaint had been established by the testimony, the Circuit Judge says: “The question arises : Elave the plaintiffs shown by the greater weight of the evidence, their right to have the contract herein enforced? This involves the answers to the following" questions: First, Was M. A. Prater absolved from carrying out the contract, by the "death of Drayton Prater, in his lifetime ? Second, Did M. A. Prater, by allowing the plaintiff Mary R. Prater to continue to reside with him, and render him personal services after the death of Drayton, waive his right to declare the contract at an end? Third, If M. A. Prater, by allowing Mary R. Prater to continue to reside with, and serve him after the death of her husband, waived his right to rescind the contract, then who thereafter breached the contract, Mary R. Prater or M. A. Prater now deceased ?”

1 We will, first', consider the question, whether the Circuit Judge erred in ruling, that M. A. Prater was absolved from carrying out the contract, by the death of Drayton Prater in his lifetime?

The exceptions assigning error in this respect are overruled, for the reasons stated in the decree.

2 The next question for determination is, whether the Circuit Judge erred in ruling, that M. A. Prater, by allowing the plaintiff, Mary R. Prater, to- continue fio reside with him and render him personal services, after the death of Drayton Prater, did not waive his right to declare the contract at an end?

Mary R.’Prater’s husband died in August, 1905, and she remained until the 5th of January, 1906, discharging her duties, just as she had done before Drayton Prater died. At no time did M. A. Prater give her any notice, or intimate to her in any manner whatsoever, that he regarded the contract broken by the death of Drayton Prater. The Circuit Judge finds, that “these services were rendered by Mary and accepted by her father-in-law, without any agreement or understanding, other than had been entered into- previous to her removal to his home.” If M. A. Prater did not intend that the agreement should continue of force, it was his duty within a resonable time after Drayton Prater died, tO' give her notice of such intention. From August, when he died, until January, when Mary R. Prater left, was certainly an unreasonable time for giving the notice to' her.

The exceptions assigning error, to the ruling of the Circuit Judge in this respect, must therefore be sustained.

Having reached this conclusion as to waiver, the next question is, whether the breach of the contract was committed by M. A. Prater or Mary R. Prater, when she left on the 5th of January, 1906 ?

3 The principal acts upon which Mary R. Prater relies, to show that she was justified in leaving his service the second time, were committed by him prior to- the death of Drayton Prater, in August, 1905 ; yet when he compelled her and her husband to leave in February, 1905, she immediately requested others to plead with M. A. Prater in their behalf, for the purpose of inducing him to allow her and Drayton to return and resume their labors. M. A. Prater gave his consent, and they immediately returned, Drayton continuing in his employment until he died in August, 1905, and she remaining in his service until she left in January, 1906.

W. D. Hampton, who married a daughter of Mary R. Prater, testified that he had a conversation with M. A. Prater on the 28th of March, 190'S, at the instance of Mary R. Prater, who1 had personally requested him to visit M. A. Prater for the purpose of persuading him to come to terms with her, as she wanted to go1 back and care for him if allowed to do so.

The fact that Mary R. Prater was very anxious to return both times when she left is strong evidence that the conduct of M. A. Prater was not so objectionable as to prevent her living with him.

If Mary R. Prater was not justified in leaving, on account of the general conduct of M. A. Prater towards her, then there was a breach of contract on her part, as it is not contended that he at that time ordered her ho leave.

The exceptions assigning error on the part of the Circuit Judge, in the respect under consideration, are overruled.

These conclusions are without prejudice to the right of Mary R. Prater, to recover reasonable compensation for her services while in the employment of M. A. Prater until the death of her husband; also, without prejudice to the right of the representatives of Drayton Prater to recover reasonable compensation for his services until his death in August, 1905. Parker v. McComber, 16 D. R. A. (R. I.) 858.

Judgment affirmed.