Kofka v. Rosicky

• Decision Date: 26 June 1894
• Docket Number: 4927
• Citation: 59 N.W. 788,41 Neb. 328
• Parties: JOSEPHINE KOFKA, APPELLANT, v. JOHN ROSICKY ET AL., APPELLEES
• Court: Nebraska Supreme Court

59 N.W. 788

41 Neb. 328

JOSEPHINE KOFKA, APPELLANT, v. JOHN ROSICKY ET AL., APPELLEES

No. 4927

Supreme Court of Nebraska

June 26, 1894

APPEAL from the district court of Douglas county. Heard below before WAKELEY, J.

Judgment reversed in part, and decree ordered in favor of appellant.

Switzler & McIntosh, for appellant:

The agreement, although not in writing, is such as a court of equity will enforce. (Briton v. Van Cott, 33 P [Utah], 218; Korminsky v. Korminsky, 21 N.Y.S. 611; Godine v. Kidd, 64 Hun [N. Y.], 585; Van Dyne v Vreeland, 11 N. J. Eq., 370; Sharkey v McDermott, 91 Mo. 655; Wright v. Tinsley, 30 Mo. 389; Gupton v. Gupton, 47 Mo. 37; Sutton v. Hayden, 62 Mo. 101; Hill v. Gomme, 1 Beav. [Eng. Ch.], 555; Wall's Appeal, 111 Pa. St., 460; Thompson v. Stevens, 71 Pa. St., 161; Pollock v. Ray, 85 Pa. St., 428; Taft v. Taft, 41 N.W. [Mich.], 481; Slingerland v. Slingerland, 39 N.W. [Minn.], 146; Welch v. Whelpley, 28 N.W. [Mich.], 744; Twiss v. George, 33 Mich. 253; Shamp v. Meyer, 20 Neb. 223; Dawson v. McFaddin, 22 Neb. 131; Franklin v. Tuckerman, 27 N.W. [Ia.], 759; Carmichael v. Carmichael, 40 N.W. [Mich.], 176; Faxton v. Faxon, 28 Mich. 159; Sword v. Keith, 31 Mich. 247; De Moss v. Robinson, 46 Mich. 62; Mundy v. Foster, 31 Mich. 313; Johnson v. Hubbell, 10 N. J. Eq., 332; Sample v. Collins, 46 N.W. [Ia.], 742; Brown v. Hoag, 29 N.W. [Minn.], 135; Ford v. Steele, 31 Neb. 521; Winans v. Luppie, 47 N. J. Eq., 302.)

The contract of adoption is not within the statute of frauds. (McCormick v. Drummett, 9 Neb. 388; Taylor v. Deseve, 16 S.W. [Tex.], 1008; Comp. Stats., secs. 4, 6, ch. 32; Wallace v. Rappleye, 103 Ill. 231.)

Mahoney, Minahan & Smyth, contra:

Under the alleged agreement it was the duty of the Spilineks to legally adopt, educate, and treat plaintiff as their own child, and leave her all their property at their death. If the court cannot decree the performance of the whole contract, it will not enforce any part of it. (Thayer v. Rock, 13 Wend. [N. Y.], 53; Pond v. Sheean, 23 N.E. [Ill.], 1018; Meyers v. Shemp, 67 Ill. 471; Prante v. Schutte, 18 Brad. [Ill.], 62; Hall v. Loomis, 30 N.W. [Mich.], 374; Waterman, Specific Performance of Contracts, sec. 389; Nickels v. Hancock, 7 De G., M. & G. [Eng.], 300; South Wales R. Co. v. Wythes, 1 K. & J. [Eng.], 186.)

The plaintiff was not adopted by the Spilineks according to statute. Neither was there any attempt to follow the provisions of our Code. The law of adoption was not and is not a part of the common law. It is purely statutory. Where the statute points out the way in which a thing shall be done, that is the only way in which it may be done. The plaintiff was not legally adopted. (Code of Civil Procedure, secs. 796-800; Tecumseh Town Site Case, 3 Neb. 284; Keith v. Tilford, 12 Neb. 273; Shearer v. Weaver, 56 Iowa 578; Houx v. Bates County, 61 Mo. 391.)

A court of equity cannot specifically enforce that part of the contract which imposes upon the Spilineks the duty of legally adopting the plaintiff. (Shearer v. Weaver, 56 Iowa 578; Story, Equity Jurisprudence, secs. 96, 177; Long v. Hewitt, 44 Iowa 363; Houx v. Bates County, 61 Mo. 391; Schouler, Domestic Relations, 232.)

The court will not specifically enforce any contract, whether it be oral or written, until the following elements appear therein: Valuable consideration, certainty as to its subject-matter, its stipulations, its fairness, its parties, and the circumstances under which it was made. It must be mutual. It must be perfectly fair, equal, and just in its terms and in its circumstances. (Minturn v. Seymour, 4 Johns. Ch. [N. Y.], 497; Butman v. Porter, 100 Mass. 337; Nichols v. Williams, 22 N. J. Eq., 63; Rogers v. Saunders, 16 Me. 92; Benedict v. Lynch, 1 Johns. Ch. [N. Y.], 370; Willard v. Taylor, 8 Wall. [U. S.], 557; Woods v. Farmare, 10 Watts [Pa.], 203.)

The alleged contract is not certain either in its subject-matter, its purposes, or the circumstances under which it was made. (Hennessy v. Woolworth, 128 U.S. 438; Purcell v. Miner, 4 Wall. [U. S.], 517; Nickerson v. Nickerson, 127 U.S. 668; Browne, Statute of Frauds, secs. 487, 491; Walepole v. Oxford, 3 Ves. [Eng.], 419; Askew v. Carr, 8 S.E. [Ga.], 74; Gallagher v. Gallagher, 5 S.E. [W. Va.], 297; Story, Equity Jurisprudence, sec. 764; Gorham v. Dodge, 14 N.E. [Ill.], 44; Brix v. Ott, 101 Ill. 70; Hamilton v. Harvey, 121 Ill. 469; Magee v. McManus, 12 P. [Cal.], 451; Lanz v. McLaughlin, 14 Minn. 72; Miller v. Zufall, 6 A. [Pa.], 350; Brown v. Brown, 47 Mich. 384; Recknagle v. Schmalz, 33 N.W. [Ia.], 365.)

The alleged contract is not mutual. (Waterman, Specific Performance of Contracts, sec. 196; Iron Age Publishing Co. v. Western Union Telegraph Co., 3 So. Rep. [Ala.], 449; Cooper v. Pena, 21 Cal. 404; Webb v. Alton Marine & Fire Ins. Co., 5 Gil. [Ill.], 225; Wallace v. Rappleye, 103 Ill. 229.)

The contract is not fair, equal, and just. (Jackson v. Ashton, 11 Pet. [U. S.], 229; Osgood v. Franklin, 2 Johns. Ch. [N. Y.], 1; Walpole v. Oxford, 3 Ves. [Eng.], 419.)

The contract has not been taken out of the statute of frauds. (Morgan v. Bergen, 3 Neb. 209; Baker v. Wiswell, 17 Neb. 58; Poland v. O'Connor, 1 Neb. 53; Dawson v. McFaddin, 22 Neb. 131; Neale v. Neales, 9 Wall. [U. S.], 1.)

Plaintiff has not paid anything in pursuance of the contract. Assume that her affection, obedience, and services, if there were any, would take the place of payment; still that would not hold, because by the terms of the contract she was not required to do those things. (Horn v. Ludington, 32 Wis. 73; Morgan v. Bergen, 3 Neb. 209.)

Possession must be obtained under the agreement and in part performance of it to take the case out of the statute of frauds. (Moore v. Small, 7 Harris [Pa.], 468; Cronk v. Trumble, 66 Ill. 428; Wood v. Thornly, 58 Ill. 464; Padfield v. Padfield, 92 Ill. 198; Hart v. Carroll, 85 Pa. St., 508; Ballard v. Ward, 89 Pa. St., 358; Miller v. Zufall, 6 A. [Pa.], 350; Ferbrache v. Ferbrache, 110 Ill. 210; Kaufman v. Cook, 114 Ill. 11; Clark v. Clark, 122 Ill. 388; Wallace v. Long, 5 N.E. [Ind.], 666; Pond v. Sheean, 23 N.E. [Ill.], 1018.)

The plaintiff is not entitled to performance on the ground of equitable fraud. (3 Pomeroy, Equity Jurisprudence, sec. 1409, note 2; Morgan v. Bergen, 3 Neb. 209; Parkhurst v. Van Cortlandt, 1 Johns. Ch. [N. Y.], 273; Pierce v. Catron, 23 Gratt. [Va.], 588; Pond v. Sheean, 23 N.E. [Ill.], 1018; Gallagher v. Gallagher, 5 S.E. [W. Va.], 297; Waterman, Specific Performance of Contracts, secs. 263, 268; Wheeler v. Reynolds, 66 N.Y. 227.)

Lamb, Ricketts & Wilson, amici curioe, contending that the contract under consideration is in nowise affected by the operation of the statute of frauds, cited: Powder River Live Stock Co. v. Lamb, 38 Neb. 339; McCormick v. Drummett, 9 Neb. 388; Connolly v. Giddings, 24 Neb. 131; Kiene v. Shaeffing, 33 Neb. 21; Stowers v. Hollis, 83 Ky. 544; Wooldridge v. Stern, 42 F. 311; Hall v. Solomon, 23 A. [Conn.], 876; Taylor v. Deseve, 16 S.W. [Tex.], 1008; Thomas v. Armstrong, 10 S.E. [Va.], 6; Aiken v. Nogle, 27 P. [Kan.], 825; Browne, Statute of Frauds [4th ed.], 275-285, and authorities cited; Stadleman v. Fitzgerald, 14 Neb. 292.

OPINION

The opinion contains a statement of the case.

HARRISON, J.

December 8, 1888, the following petition was filed in the district court of Douglas county.

"The plaintiff, Josephine Kofka, appears by her next friend, James Kofka, and for her cause of action alleges the fact to be that this plaintiff was born in Omaha, Nebraska, on the 16th day of March, 1877; that her father's name is James Kofka, who appears here as her next friend, and her mother's name is Mary Kofka, both of whom were then residing in Omaha, and have ever since here resided; that the parties to this suit are all of Bohemian nationality; that soon after her birth to-wit, in the month of August, 1878, there were living in Omaha, John Spilinek, deceased, and his wife, Anna Spilinek the latter being a sister of the plaintiff's mother. During said month the said John Spilinek and Anna Spilinek, who never had any children of their own, requested of plaintiff's parents the privilege of taking this plaintiff with them to live with them as their child. The parents of plaintiff having several children, one of whom at that time was only a few weeks old, fully considered the matter, and having full confidence that plaintiff would receive at the hands of John and Anna Spilinek the care and affection which is due from parents to child, consented to said request, but only upon the expressed and well understood conditions, to be hereinafter named; that is to say, James Kofka and Mary Kofka, the parents of the plaintiff, gave up the care, custody, and control of said child, in the said month of August, 1878, on the consideration and agreement, then and there assented to by the said John and Anna Spilinek, that they would legally adopt and receive the said child as their own, would care for her, rear and educate her, and that she should have their fullest and best affection, and at their death she, the plaintiff, should inherit and be left all the property with which they died possessed.

"Plaintiff further says that she went to live with the said John and Anna Spilinek at the time above mentioned, on the terms aforesaid; that she continued to live uninterruptedly with them until their death, which came to John Spilinek on September 16, 1888, and to Anna Spilinek on September 19 1888. The plaintiff says that during all of said time she conducted herself toward the said Spilineks as an affectionate and obedient child and received at their hands all the devotion and love a child should receive from parents; that she had, for several years previous to their death,...