DeWitt v. Kelly

Littlejohn, Justice.

This is an appeal from a jury verdict awarding the plaintiff $500, representing attorney’s fees for personal services rendered the defendant, Dr. Peter C. Kelly. We affirm.

During April 1965 the Horry County Progressive Association (now succeeded by The Conway Civic Association), comprised of community leaders in Horry County, became interested in filing an application with the Office of Economic Opportunity in Washington for a Head Start Program grant. The defendant, Kelly, was authorized by the association to file the application. There is evidence that he sought the assistance of the plaintiff, and there is evidence that the plaintiff did in fact devote his time and effort to the preparation of and the filing of an application.

It is alleged in the complaint that the plaintiff performed professional services at the special instance and request of Kelly, for which the defendant Kelly promised to pay. The services were alleged to be reasonably worth $1200.

The answer of the defendant, Kelly, alleged (1) a general denial; (2) that Kelly was not personally liable for the association’s obligations; (3) even if it be found that Kelly promised to pay, such was not in writing and under the Statute of Frauds could not be collected from him; and (4) that interested citizens were working together to promote the project, with no one expecting to be paid or entitled thereto.

The appellant contends first, that the trial judge should have granted a motion for a directed verdict or for judgment notwithstanding the verdict because there was no evidence from which the jury could draw an inference that a contract to pay existed between the plaintiff and Kelly. In disposing of this issue we view the evidence in the light most favorable to the plaintiff. When evidence is susceptible of more than one reasonable inference, the issues must be submitted to the jury.

The plaintiff testified that in April 1965 he was called to the office of Kelly and was instructed to prepare the application blanks and return them to his office. He testified that he did as Dr. Kelly had instructed him, and devoted the necessary time and effort to the processing of the application. He testified further that Kelly told him that he would “see that I would get paid for my professional services.” He also said that he was not hired by the association.

Kelly denied having committed himself personally to see that plaintiff was paid. The testimony made issues for determination by the jury. We cannot say as a matter of law from the whole of the evidence that no contract to pay attorney’s fees existed between plaintiff and Kelly. The exception is without merit.

Kelly next contends that the judge should have directed a verdict because the promise was to answer for the debt of another. Under Section 11-101 of the Code such a contract, to be enforceable, must be in writing. It provides, in part, as follows:

“§ 11-101. Agreements required to be in writing. — No action shall be brought whereby:

“(2) To charge the defendant upon any special promise to answer for the debt, default or miscarriage of another person; * * *”

We do not think that the Statute of Frauds as set forth in Section 11-101 applicable to the facts before us. Assuming, without so deciding, that the promise found by the jury to have been made, was to answer for the debt of the association, it is clearly inferable that the plaintiff actually performed the services for which compensation is sought. Plaintiff not only performed the services needed, but he procured the result desired. The contract was completely executed.

The rule set forth in 49 Am. Jur., Statute of Frauds, § 550, is applicable here:

“The courts have repeatedly reiterated that the statute of frauds only applies to executory, as distinguished from executed, contracts; if an oral contract, otherwise within the statute, is completely executed or performed it is taken out of the operation of the statute(Emphasis added.)

Also see Footman v. Sweat, 247 S. C. 172, 146 S. E. (2d) 624 (1966) ; McLauchlin v. Gressette, 224 S. C. 296, 79 S. E. (2d) 149 (1953).

We think as a matter of law the Statute of Frauds has no application and the judge would have been justified in so charging the jury.

The exceptions are without merit and the judgment of the lower court is

Affirmed.

Moss, C. J., and Lewis, Bussey, and Brailsford, JJ., concur in result.