Scott v. Walker

• Decision Date: 21 April 1943
• Docket Number: No. 1934-8051.,1934-8051.
• Citation: 170 S.W.2d 718
• Parties: SCOTT et al. v. WALKER.
• Court: Texas Supreme Court

170 S.W.2d 718

SCOTT et al. v. WALKER.

No. 1934-8051.

Commission of Appeals of Texas, Section B.

April 21, 1943.

Rehearing Denied May 19, 1943.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Action by Neva Walker against Harry D. Scott, independent executor of the estate of A. E. Bower, deceased, and others for title and possession of realty, and in the alternative for specific performance of oral contract to convey or devise realty in consideration of services performed by plaintiff and her husband, and in the further alternative to recover the reasonable value of the services or for damages. From a judgment in favor of the defendants, the plaintiff appealed to the Court of Civil Appeals. To review a judgment of the Court of Civil Appeals, 164 S.W.2d 586, reforming the trial court's judgment and rendering judgment for plaintiff as against the executor, the executor brings error.

Judgment of the Court of Civil Appeals reversed, and trial court's judgment affirmed.

Webb & Webb, of Sherman, and Lively, Dougherty & Alexander, of Dallas, for petitioners.

J. W. Hassell and J. W. Hassell, Jr., both of Dallas, and J. B. Robertson, of Austin, for respondent.

SMEDLEY, Commissioner.

Respondent, Mrs. Neva Walker, for herself and as next friend of her husband, sued petitioners Harry D. Scott, independent executor of the estate of A. E. Bower, deceased, and Kathryn Pittman and Elizabeth Pittman, devisees, for the title and possession of an improved lot in the City of Dallas. In the alternative she sued for specific performance of a contract to convey or devise the premises, in consideration of services performed by her and her husband, particularly by her, during a period of about fifteen years and until Bower's death, alleging full performance and that Bower breached the contract and devised the property to Kathryn and Elizabeth Pittman. In the further alternative she sought to recover the reasonable value of the services, and she sued, also in the alternative, for damages. Among other defenses, petitioners pleaded the statute of frauds and the two year statute of limitation, Section 4 of Article 3995, and Article 5526, Revised Civil Statutes of 1925.

The trial court submitted only three issues to the jury. The first issue, which the jury answered in the affirmative, was: "Do you find from a preponderance of the evidence that from the year 1924 to date of the death of A. E. Bower, deceased, the plaintiffs, Neva Walker and husband, rendered to said A. E. Bower personal services as housekeeper and nurse at said A. E. Bower's special instance and request?"

In answer to the second special issue the jury found the reasonable value of the services rendered for each of the years from 1925 to 1939, inclusive. The value found for each of the years 1925 and 1926 was $400, for each of the years 1938 and 1939, $600, and for each of the other years $500, making a total of $7,500.

The jury found in answer to the third special issue that Bower and respondent Mrs. Walker and her husband did not make an agreement whereby Mrs. Walker and her husband would be permitted to occupy and use Bower's home and its furnishings, without payment of rent, that Bower would pay all charges for water, lights, gas and telephone services, and that they in consideration therefor would provide him with meals, laundry and household services. This issue submitted the substance of one of the paragraphs of petitioners' answer.

The trial court, in response to petitioners' motion, disregarded the jury's findings as to the value of the services for all of the years except 1938 and 1939 and rendered judgment for respondent against petitioner Scott, independent executor, for $1,200, the amount found by the jury not barred by the statute of limitations, and further adjudged that respondent take nothing on her counts or causes of action for title, specific performance and damages.

The Court of Civil Appeals, on respondent's appeal, reformed the trial court's judgment and rendered judgment in her favor against Scott, executor, for $7,500. Associate Justice Young dissented, expressing the opinion that the trial court's judgment should be affirmed. 164 S.W.2d 586.

Respondent did not attempt to prove title to the premises; and since the contract, which she alleged and offered evidence tending to prove, was an oral contract for the conveyance or devise of real estate, the statute of frauds pleaded by petitioners was a complete defense to her suit for specific performance of the contract and to her action for damages for its breach. Hooks v. Bridgewater, 111 Tex. 122, 229 S. W. 1114, 15 A.L.R. 216; Upson v. Fitzgerald, 129 Tex. 211, 103 S.W.2d 147; American National Ins. Co. v. Warnock, 131 Tex. 457, 114 S.W.2d 1161.

Respondent alleged in paragraph 6 of her petition, in which she sued to recover the reasonable value of services rendered to Bower, that in December, 1924 she and her husband, at the instance and request of Bower, entered into a parol contract with him, by which they agreed that they would move into his home and buy and pay for all food necessary to support him and perform all household work and services in the home incident and appropriate to his manner of living, he paying all utility bills; that they fully performed the agreement for a period of fifteen years until his death and faithfully attended to all of his wants, he accepting the benefit of their services; and that he thereby became liable to them for the reasonable value thereof in the total sum of $18,050, all due and payable upon the termination of the contract, which was to continue during the whole of Bower's life.

The evidence offered by respondent tended to prove that Bower, a short time after the death of his wife in December, 1924, orally agreed with respondent and her husband that, in consideration of their living with him and making a home for him until his death, he would give or devise the house and lot to them. The evidence shows that Mrs. Walker and her husband lived with Bower, kept house for him and served and nursed him until his death in 1940. Mr. Walker was Mrs. Bower's nephew. By Bower's will the lot on which the residence is situated was devised to petitioners Kathryn and Elizabeth Pittman, Mrs. Bower's nieces.

Notwithstanding the fact that contracts like that upon which respondent relies are within the statute of frauds, the party who has performed the services contemplated by the contract is not without remedy. By reason of the statute, he may not bring an action to enforce the other party's obligation to convey or devise real estate, but he may sue for and recover the reasonable value of the services rendered. Stevens v. Lee, 70 Tex. 279, 8 S.W. 40; Upson v. Fitzgerald, 129 Tex. 211, 216, 103 S.W.2d 147; Raycraft v. Johnston, 41 Tex.Civ.App. 466, 93 S.W. 237, application for writ of error refused; Whitehead v. Rhea, Tex.Civ.App., 168 S.W. 460; Gray v. Cheatham, Tex.Civ.App., 52 S.W.2d 762; Moore v. Rice, Tex.Civ.App., 110 S.W.2d 973; Laughnan v. Laughnan's Estate, 165 Wis. 348, 162 N.W. 169; note 69 A.L.R. 14, 90-102; note 106 A.L.R. 742, 753. To prevent injustice the law implies, instead of the promised conveyance or devise of real estate, the obligation to pay the reasonable value of the services, or, as said in Laughnan v. Laughnan's Estate, 165 Wis. 348, 162 N.W. 169, the law substitutes for the promise to convey or devise real estate as a consideration for the services the promise to pay their reasonable value. In such case the suit is not for the enforcement of the parol contract; it is on the implied contract to pay for the services performed. Ray v. Young, 13 Tex. 550; Moore v. Rice, Tex.Civ.App., 110 S.W.2d 973; Turnbow v. Head, Tex.Civ.App. 158 S.W.2d 854; note 69 A.L.R. 14, 90-92; note 106 A.L.R. 742, 753.

While the contract is unenforceable by reason of the statute of frauds, it is nevertheless important to the plaintiff, suing for the value of services, to establish the contract, in order to show that the services were not gratuitously rendered and that the suit is not barred by limitation. Moore v. Rice, Tex.Civ.App., 110 S.W.2d 973; Laughnan v. Laughnan's Estate, 165 Wis. 348, 162 N.W. 169. Without proof of the contract, limitation begins to run from the time of the performance of the services. Dyess v. Rowe, Tex.Civ.App., 177 S.W. 1001, application for writ of error refused; Ivey v. Lane, Tex.Civ.App., 225 S.W. 61, application for writ of error refused; Caldwell v. Jones, Tex.Civ.App., 63 S.W.2d 761; McFaddin v. Trahan, Tex.Civ.App., 80...