Baldwin v. Baldwin

• Decision Date: 10 February 1906
• Docket Number: 14,434
• Citation: 73 Kan. 39,84 P. 568
• Parties: ALBERT BALDWIN v. JOHN BALDWIN
• Court: Kansas Supreme Court

84 P. 568

73 Kan. 39

ALBERT BALDWIN v. JOHN BALDWIN

No. 14,434

Supreme Court of Kansas

February 10, 1906

Decided January, 1906.

Error from Clay district court; SAM KIMBLE, judge.

STATEMENT.

THIS is a proceeding in error to reverse a judgment rendered against the plaintiff in error as defendant in an action for damages for the breach of a parol agreement to convey certain land consisting of a farm in Clay county. Albert Baldwin, now past ninety-six years of age, is the father of John Baldwin, the defendant in error, and in 1893 owned an eighty-acre farm upon which he was living with an unmarried daughter. John Baldwin, with his family, was then visiting at his father's farm, on the way to take up land in Oklahoma. He claims that his father offered, if he would move upon the place, stay there, and keep and support his father, to deed to him the land. He says that he told his father he would agree to this, provided he could purchase the adjoining 120 acres, which he did a few days thereafter, and informed his father that he had decided to accept the offer; that his father said: "All right; I will make you out a deed the first time I go to Clay Center;" that with his family he at once moved upon the place, and in connection with the 120 acres he had purchased farmed it until 1896, when he built a house on his own land. He also claims that from the time he moved upon the eighty acres (in 1893) until 1901 his father continued to live with him, and that during this time he furnished the support and maintenance agreed upon.

In 1901 Albert Baldwin went upon a visit to a married daughter in Idaho, where he has ever since remained, and some time after going there conveyed the eighty acres to this daughter. The conveyance was recorded in February, 1902. The son then brought this action, claiming that he had fully performed the contract on his part, so far as it was possible for him to do so, and except as prevented by his father; that the value of the land is $ 800; and that the reasonable value of the services performed under the agreement is $ 800.

There were no valuable and lasting improvements placed upon the land by plaintiff, and except for some slight alterations in some wire fencing no improvements of any kind were made upon it. There were ten acres broken out in 1893, and the same when this action was brought. The son used the remainder of the land in connection with his own farm as a pasture.

Defendant filed a general denial, and also a counterclaim upon an open account for money loaned to the son at various times and supplies and property which he claims the son received from him. Among other items was one for $ 300, which he testifies was pension money loaned the son, and for which he says the son agreed to execute a note, but never did so. Some of the items he says he never intended to charge against the son unless the son charged him for board. In his testimony he denies making any agreement to convey the land, and declares that the son rented a part of the eighty acres from him and gave him a share of the crops, that he always held possession of the land himself, and that portions of it were rented by him to other persons during the time plaintiff claims to have had possession. He denies that the son kept or maintained him. He testifies that during the first three years he lived with his son in his own house on this land, and furnished provisions and money for his share of the living expenses that after the son moved to the other place he remained in his own house but took part of his meals at the son's house, and stayed there about one-fourth of the time. He also testifies that his reason for leaving and going to the daughter's home in Idaho was that his son's wife told him she could not keep him any longer, and that he would have to leave.

The jury found generally for plaintiff for $ 800.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. CONTRACT--Parol Agreement to Convey Land--Possession as Part Performance. In a suit to enforce a parol agreement to convey land, where possession is relied upon as part performance to take the case out of the statute of frauds, the character of the possession is of the greatest importance. It must be notorious, exclusive, continuous, and in pursuance of the contract.

2. CONTRACT--Insufficient Instruction. An instruction that plaintiff is entitled to recover if he has proved that he was placed in possession of the land under the contract held insufficient under the conceded facts in the case.

Coleman & Williams, for plaintiff in error.

F. P. Harkness, George L. Davis, and R. C. Miller, for defendant in error.

PORTER J. All the Justices concurring.

OPINION

PORTER, J.

Defendant in error contends that by filing a general denial, and failing to plead the statute of frauds, plaintiff in error waived any defense under the statute. The petition alleged a contract to convey lands, but was silent as to whether the contract was in writing or parol. Plaintiff offered evidence of a parol contract, and the case appears to have been tried upon the theory that the statute of frauds was a defense, except as certain facts relied upon by plaintiff served to avoid the statute. It was said in Wiswell v. Tefft et al., 5 Kan. 263, that the statute of frauds can be relied upon as a defense under a general denial. Without reviewing the authorities upon that question, or considering the claim of defendant in error that the statement in Wiswell v. Tefft et al. is dictum, it is sufficient to say that the objection in this case to the statute of frauds as a defense is raised for the first time in this court, and for that reason cannot be regarded with favor.

The principles governing the case are the same as though this were a suit for specific performance of an oral agreement to convey the land. Part performance is relied upon to take the contract out of the statute. It is elementary that the acts of part performance must be such that it would be a fraud upon the party seeking the decree for the other to refuse to perform. When a party has so altered his situation upon the faith of an oral promise that a refusal to convey would result not merely in damages, not simply in the denial of what he was to receive, but also in inflicting upon him an injustice which the courts consider a constructive fraud, equity then lifts the oral contract out of the statute and compels a performance. (Browne, Stat. of Frauds, 5th ed., §§ 447, 448, 457.) It is likewise elementary that the acts of part performance relied upon must have been done in pursuance of the contract, and must be clearly, definitely and satisfactorily shown. (Lewis v. North, 62 Neb. 552, 87 N.W. 312, 314; Brown v. Hoag, 35 Minn. 373, 376, 29 N.W. 135; Browne, Stat. of Frauds, 5th ed., § 457.) It is also said that the acts of part performance are not confined to the doing of what the contract stipulates, although they must be related to, and connected with, the contract.

The acts which plaintiff claims amounted to part performance are: (1) The payment of the purchase-price, or the performance of the service contracted for, and (2) the entry into possession of the land. It is well settled that payment of the purchase-price alone is not sufficient part performance. ( Goddard v. Donaha, 42 Kan. 754, 22 P. 708; Barnes v. Boston & Maine Railroad, 130 Mass. 388, 390; Edwards v. Fry, 9 Kan. 417.) The only question we need consider is whether the court erred in instructing the jury that plaintiff was entitled to recover if he proved that the contract was entered into and the services were performed by him, so far as he was permitted to perform them, and that "under said contract he was placed in possession of the real estate."

A distinction has been made by many of the authorities between the acts which are considered...