
    Hathaway v. Jones et al.
    (Decided March 12, 1934.)
    
      
      Mr. Benjamin F. James and Mr. Silas E. Burin, for plaintiff.
    
      Messrs. Bowman & James, for defendants.
   Richards, J.

This action was tried on the fourth amended petition and is one brought to require specific performance of an oral contract made by Eugene Jones to transfer to the plaintiff lot No. 1057 in the city of Bowling Green, together with household goods and a certain automobile, in consideration that plaintiff would care for said Eugene J ones for the remainder of his life. The Common Pleas Court rendered a judgment and decree in favor of the defendants, from which the plaintiff appealed.

The pleading alleges that an oral agreement was made with Eugene Jones about January, 1928; that he died in October, 1932, and that plaintiff performed all the services named in the agreement during that period. She avers further that during that time she had full possession of the property and a key to the residence, and provided said Eugene Jones a good home therein, and that she made certain repairs on the premises.

The fourth amended petition and the evidence disclose that the value of the services contracted for was intended to be and was easily susceptible of being valued in money, and in such cases the principle of law is as stated in Newbold v. Michael, 110 Ohio St., 588, 144 N. E., 715, that specific performance of an oral contract for services to be in part compensated for by a transfer of real estate will not lie unless a fraud would result by such refusal. That case was followed by this court, and a similar conclusion announced, in Nunn v. Boal, 29 Ohio App., 141, 162 N. E., 724. In the latter case specific performance was refused in view of the adequacy of a remedy at law in an action to recover the value of the services.

The pleading of the plaintiff is to the effect that the decedent promised to make a proper transfer and conveyance of the property to her, but in the evidence it is attempted to show that he had executed a will in her favor. It does not appear what finally became of the will which it is claimed he made, nor what terms or provisions it contained. The purpose of offering evidence in relation to the will was to escape the effect of the statute of frauds, by showing that he, Jones, had signed a written instrument confirming his oral promise. No evidence was introduced showing that the will contained any reference to the oral contract, or that it made any reference to the reason for making a devise in her favor, if it indeed contained such a devise. The record is devoid of evidence showing any written memorandum, and the case for specific performance is within the statute of frauds. The case falls within the decision rendered in Ortman v. Ortman, 45 Ohio App., 551, 187 N. E., 588, and also within the case of Ringer v. Benedict, Exr., 39 O. L. R,. 1, 15 Ohio Law Abs., 265, decided by the Court of Appeals of Warren county on May 8, 1933. The delivery by the decedent of a key to the residence, so that she might have access at all times while she was caring for him, and the possession of the premises which she had while she was performing such services, would not, of course, be an exclusive possession in her, as the decedent continued to reside there during his lifetime. These facts, therefore, would not take the case out of the requirements of the statute of frauds.

The performance of personal services under an oral agreement to convey real estate and household goods in payment therefor, or to devise the same by will, is not such performance as to take the case out of the statute of frauds when the services which are performed are susceptible of being measured in money.

"We can find no principle of law which entitles the plaintiff to prevail in an action for specific performance, and judgment and decree will be rendered for the defendants.

Decree for defendants.

Williams and Lloyd, JJ., concur.  