Ayres v. Cook
| Decision Date | 22 July 1942 |
| Docket Number | 28807. |
| Parties | AYRES et al. v. COOK et al. |
| Court | Ohio Supreme Court |
Syllabus by the Court.
1. The parol evidence rule does not interdict showing that in addition to a cash consideration, specified in a written agreement for the sale of property, there was a contemporaneous oral agreement by one of the vendees to leave property to the vendors as a further consideration for the sale.
2. When an interest in a business is sold to two persons, by an agreement in writing, for the payment of a specified amount and one of the purchasers, as a further consideration for the sale, enters into a contemporaneous oral agreement with the vendors to leave real estate to them by will, a completed transfer of the business with payment of the specified amount, as agreed upon, constitutes such part performance of the contract as a whole as takes the case out of both the general statute of frauds (Section 8621, General Code) which applies to a contract to devise lands and the specific statute of frauds (Section 10504-3a), which relates to agreements to make a will or to make a devise or bequest by will.
3. Where a contract, for the sale of a business to two persons in consideration of the payment of cash and a secret promise by one of the vendees to devise real property to the vendors has been fully performed by the vendors and the other vendee and thereafter the vendee, who made such promise, dies intestate, specific performance of the agreement to devise real estate will not be denied merely because the other vendee was not informed of the secret agreement; such secret promise is not in and of itself reprehensible and unconscionable.
4. This court, though not required to weigh the evidence, will examine it to determine whether an issue, required to be proved by clear and convincing evidence, has been sustained by proof which rises to that standard. (Paragraph 1 of the syllabus in Frate v. Rimenik, 115 Ohio St. 11, 152 N.E. 14, approved and followed.)
5. One who is not misled to his injury by the conduct of another cannot claim estoppel.
6. Specific performance of a valid contract to leave real estate by will may be maintained against the heir of the person who agrees to make the devise and thereafter dies without performing his contract.
On September 12, 1938, Helen A. Ayres and Mildred A. Spears brought an action in the Common Pleas Court of Franklin county, Ohio, against William E. Cook and Helen A. Ayres, administratrix of the estate of Emma Cook, deceased, seeking specific performance of a contract to devise real estate by will. The defendant, Helen A. Ayres, as such administratrix, filed an answer praying that such real estate be declared subject to her right as administratrix to sell the same to satisfy the debts of the decedent.
Defendant, William E. Cook, filed an answer setting up a first defense which was substantially a general denial, and a second defense which pleaded in effect that the contract was not in writing and so unenforceable.
The cause was tried in the Court of Common Pleas, judgment rendered in favor of the defendant, William E. Cook, and plaintiffs' petition dismissed.
Thereupon an appeal was taken to the Court of Appeals on questions of law and fact and the cause was tried there de novo.
The operative facts are as follows:
On or about April 26, 1919, Emma Cook, her son, William E. Cook, and her two daughters, Helen A. Ayres and Mildred A. Spears, each owned an interest in the undertaking business carried on in the name of Cook & Sons Funeral Directors. The mother, Emma Cook, sought to buy the interest of her two daughters, the plaintiffs herein, for herself and her son, and offered each of them $2,500 for their individual interests. The daughters refused to accept the offers because they considered them insufficient in amount. Thereupon the mother agreed with the daughters that if they would transfer the undertaking business to her and her son she would leave to them, by will, the real estate which she owned at the time of her death in addition to the payment of $2,500 to each.
On or about April 26, 1919, Helen A. Ayres executed and delivered a written instrument which recited that she sold her interest to her mother and brother for one dollar and other considerations. Shortly thereafter Mildred A. Speare executed and delivered a like instrument in which it was recited that she sold her interest in the business to the same persons for $2,500. The part of the agreement relating to the devise of real estate to the plaintiffs was not reduced to writing. Emma Cook died intestate on June 9, 1938, and up until that time the defendant, William E. Cook, had no knowledge of the oral agreement respecting his mother's real estate.
At the time the undertaking business was sold the value of the interest of each of the plaintiffs was from $7,000 to $7,500. In addition the business was shown to be quite extensive. The only witness called by the defendant testified to no facts except a conversation with the mother in which she stated that she wanted all of her children to share alike. There is no substantial conflict in the evidence offered on behalf of plaintiff. The Court of Appeals entered judgment in favor of the plaintiffs and decreed specific performance of the agreement to leave the property by will subject to decedent's administratrix right to sell the property if necessary to pay debts.
This court allowed a motion to certify.
H. W. Bradshaw and W. B. McLeskey, both of Columbus, for appellant.
Vorys, Sater, Seymour & Pease and Lyman Brownfield, all of Columbus, for appellees.
The defendant, William E. Cook, maintains that the judgment of the Court of Appeals adjudging specific performance of the contract to leave real property by will is prejudicially erroneous and should be reversed. The various alleged grounds of error will be discussed in logical order.
It has been suggested that the doctrine of partial integration applies here and it certainly would as to the writing executed by the plaintiff, Helen A. Ayres, for it recites that the undertaking business is sold for one dollar and other considerations. This recital would permit proof that the other considerations were partly money and partly real property to be left by will. The writing executed by Mildred A. Spears, however, recites that the consideration was $2,500 cash. The parol evidence rule ordinarily does not prevent showing what the actual consideration was. Of course, the recital that the consideration was $2,500 could not be altered or contradicted by showing that the agreement was in fact for a different amount payable in cash. But the agreement for an additional consideration, viz., a promise to leave property by will can be shown, for evidence of such a fact is not deemed inconsistent with or contradictory of the writing. Vail v. McMillan, 17 Ohio St. 617; Conklin, Trustee, v. Hancock, 67 Ohio St. 455, 66 N.E. 518. Therefore the parol evidence rule was not violated.
Section 8621, General Code, which is the general statute of frauds, and applies to a contract to devise real estate (Kling, Adm'r, v. Bordner, 65 Ohio St. 86, 61 N.E. 148), provides, inter alia, that no action shall be brought 'to charge a person * * * upon a contract or [sic] sale of lands, tenements, or hereditaments, or interest in, or concerning them, * * * unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing * * *.'
Recently Section 10504-3a, General Code, has been enacted, which provides: 'No agreement to make a will or to make a devise or bequest by will shall be enforceable unless such agreement is in writing, signed by the party...
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