Beffa v. Peterein
| Decision Date | 03 December 1945 |
| Docket Number | No. 39448.,39448. |
| Citation | 191 S.W.2d 633 |
| Parties | MARTINA BEFFA, Appellant, v. DAVID A. PETEREIN and JOHN PETEREIN, JR. |
| Court | Missouri Supreme Court |
Appeal from Cape Girardeau Circuit Court. — Hon. J.C. McDowell, Judge.
AFFIRMED.
J. Grant Frye for appellant.
(1) The contract pleaded in the cross bill was that if John would go on the Wayne County land and clear, improve, cultivate, and operate said farm the deceased would either deed or devise the land to John, which allegation is not sufficiently clear, explicit, and definite as to state a cause of action. Walker v. Bohannon, 243 Mo. 119, 147 S.W. 1024; Sec. 3354, R.S. 1939. (2) There is no evidence as to the existence of the alleged agreement pleaded in the cross bill, as the testimony of the witnesses had to do with declaration of the deceased showing merely a disposition to bestow a bounty upon John and not to have entered into a contract for the conveyance of real estate on account of performance of the conditions of the alleged contract. Walker v. Bohannon, 243 Mo. 119, 147 S.W. 1024. (3) The most favorable testimony of the witnesses as going to show a state of mind of deceased to deed or devise the Wayne County land to John are too ancient, loose, and casual to furnish the basis for a finding that the deceased was about to enter into or had entered into the contract alleged in the cross bill, and such alleged conversations show at the most a mere disposition to deed or devise this land on account of sympathy with John rather than on account of any contract to deed or devise the same because of acts of performance of a contract by John. Walker v. Bohannon, 243 Mo. 119, 147 S.W. 1024. (4) The alleged conversations of the deceased, as well as the alleged acts of performance by John, are more naturally referable to a disposition on the part of deceased to make John the object of his bounty because of sympathy for him on account of his being a cripple, or on account of affection for him and his wife because of their treatment of him, than to the performance or recognition of a contract touching upon the conveyance of the Wayne County land; and none of deceased's alleged statements is referable to entering into a contract, and for those reasons his alleged statements are insufficient as a matter of law to sustain the cross bill. Shaw v. Hamilton, 141 S.W. (2d) 817, 346 Mo. 366. (5) Taken in its most favorable light, the evidence that tends to sustain the cross bill of defendant John Peterein, Jr., is not sufficient to make a prima facie case in support thereof in that the acts and conduct of the parties are not shown to be referable solely to the contract as alleged in the cross bill and as not excluding other relations between the parties that might likewise be interpreted from the evidence under the cross bill, and do not support the allegations thereof, and are not sufficient to show as a matter of law the existence of the contract alleged, and at the most show only isolated statements of the deceased not arising to the dignity of the consciousness of an intention of assuming a contractual obligation. Forrester v. Sullivan, 231 Mo. 345, 132 S.W. 722; Hersman v. Hersman, 253 Mo. 175, 161 S.W. 800; Hinkle v. Hinkle, 236 S.W. 30; Gibbs v. Whitwell, 164 Mo. 387, 64 S.W. 110; Davis v. Falor, 346 Mo. 514, 142 S.W. (2d) 76; Maness v. Graham, 346 Mo. 738, 142 S.W. (2d) 1009, 132 A.L.R. 225; Collins v. Harrell, 219 Mo. 279, 118 S.W. 432. (6) Assuming that the evidence was sufficient prima facie to establish a cause of relief under the cross bill, still, the evidence adduced in that behalf is not sufficiently clear, cogent, and convincing as to establish beyond a reasonable doubt that there was the contract existing as alleged in the cross bill and that there was performance thereof. Walker v. Bohannon, 243 Mo. 119, 147 S.W. 1024; Shaw v. Hamilton, 141 S.W. (2d) 817; Sportsman v. Halstead, 347 Mo. 286, 147 S.W. (2d) 447; Furman v. St. Louis Union Trust Co., 338 Mo. 884, 92 S.W. (2d) 726; Stibal v. Nation, 98 S.W. (2d) 724; Ver Standig v. St. Louis Union Trust Co., 344 Mo. 880, 129 S.W. (2d) 905; Heller v. Jentzsch, 303 Mo. 440, 260 S.W. 979; Hubbard v. Hubbard, 140 Mo. 300, 41 S.W. 749; Gibbs v. Whitwell, 164 Mo. 387, 64 S.W. 110; Alexander v. Alexander, 150 Mo. 579, 52 S.W. 256. (7) The evidence of Senator M.C. Matthes concerning the conversations and transactions with deceased at the time the deeds to David and Mrs. Beffa were written were in a professional capacity and were privileged communications and the trial court should not have admitted such evidence over the objection of Mrs. Beffa who was claiming under the deceased, there being no waiver of the privilege. Sweet v. Owen, 109 Mo. 1, 18 S.W. 928; Ex parte Schneider, 294 S.W. 736; Pinson v. Campbell, 124 Mo. App. 260, 101 S.W. 621.
M.C. Matthes for David A. Peterein, respondent, and Rush H. Limbaugh for John Peterein, Jr., respondent.
(1) The cross action of John contained all the allegations necessary to state a cause of action in equity for the specific performance of the contracts alleged. Keltner v. Threlkel, 316 Mo. 609, 291 S.W. 462; Vesser v. Neff, 214 S.W. 185; Hubbard v. Hubbard, 140 Mo. 300, 41 S.W. 749; Dozier v. Matson, 94 Mo. 328, 7 S.W. 268; Anderson v. Shockley, 82 Mo. 250; West v. Bundy, 78 Mo. 407; Hiatt v. Williams, 72 Mo. 214. (2) To state such cause of action, it is sufficient to allege a promise to give land, an entry into possession by the promisee, followed by the making of improvements in reliance upon such promise, and a failure to perform by the promisor. The cross action here contained such allegations. Findley v. Johnson, 142 S.W. (2d) 61; Vesser v. Neff, 214 S.W. 185; Dozier v. Matson, 94 Mo. 328, 7 S.W. 268; West v. Bundy, 78 Mo. 407; Hiatt v. Williams, 72 Mo. 214. (3) It is proper to allege such cause of action as a cross action in a suit involving title to or possession of the land. Keltner v. Threlkel, 316 Mo. 609, 291 S.W. 462; Vesser v. Neff, 214 S.W. 185; Hubbard v. Hubbard, 140 Mo. 300, 41 S.W. 749; Anderson v. Shockley, 82 Mo. 250. (4) This court has uniformly held that when a father promises a son a tract of real estate and the son, in reliance on the promise and with the consent of the father, enters into possession of the land, operates it for a long period of years, makes valuable and lasting improvements on it and the father fails to make good his promise, the case is taken out of the statute of frauds, the son stands in the position of a purchaser and is in equity entitled to specific performance of the father's contract. Keltner v. Threlkel, 316 Mo. 609, 291 S.W. 462; Vesser v. Neff, 214 S.W. 185; Hubbard v. Hubbard, 140 Mo. 300, 41 S.W. 749; Dozier v. Matson, 94 Mo. 328, 7 S.W. 268; Anderson v. Shockley, 82 Mo. 250; West v. Bundy, 78 Mo. 407; Hiatt v. Williams, 72 Mo. 214; Halsa v. Halsa, 8 Mo. 303. (5) The trial court correctly held that this case came within the rule announced in point II herein and that deceased promised John the Wayne County farm, that John entered into possession, cleared the land and made lasting improvements on it in reliance on deceased's promise and was entitled to specific performance when the United States acquired the Wayne County farm; and the trial court correctly held that deceased promised John, when he took the proceeds of the Wayne County farm and invested them in the Cape Girardeau County farm, that the latter farm would be John's and, since John went into possession thereof, relying on deceased's promise, he was entitled to specific performance of such promise. Sportsman v. Halstead, 347 Mo. 286, 147 S.W. (2d) 447; Findley v. Johnson, 142 S.W. (2d) 61; Ver Standig v. St. Louis Union Trust Co., 344 Mo. 880, 129 S.W. (2d) 905; Schweizer v. Patton, 116 S.W. (2d) 39; Broz v. Hegwood, 349 Mo. 920, 163 S.W. (2d) 1009; Vesser v. Neff, 214 S.W. 185; Merrill v. Thompson, 252 Mo. 714, 161 S.W. 674; McQuitty v. Wilhite, 247 Mo. 163, 152 S.W. 598; Hubbard v. Hubbard, 140 Mo. 300, 41 S.W. 749; Berg v. Moreau, 199 Mo. 416, 97 S.W. 901; Hall v. Harris, 145 Mo. 614, 47 S.W. 506; West v. Bundy, 78 Mo. 407; Gupton v. Gupton, 47 Mo. 37; Halsa v. Halsa, 8 Mo. 303; 1 Pomeroy's Equity Jur. (5 Ed.), pp. 378-385, sec. 221b; 2 Pomeroy's Equity Jur. (5 Ed.), pp. 21-25, sec. 368; p. 33, sec. 372; 4 Pomeroy's Equity Jur. (5 Ed.), p. 479, sec. 1161; pp. 1033-1058, secs. 1400-1410; 49 Am. Jur., p. 617, sec. 2; pp. 10-18, secs. 6-19; pp. 31-33, sec. 21, (6) Although equity requires in actions for specific performance that proof of the contract be clear, cogent and convincing before it will decree specific enforcement, such a contract does not have to be shown in detail. Sportsman v. Halstead, 347 Mo. 286, 147 S.W. (2d) 447; Smith v. Lore, 325 Mo. 282, 29 S.W. (2d) 91. (7) Nor does proof of a contract have to be made by a technical accuracy of expression on the part of lay witnesses who have little knowledge of the law of real estate, but it is sufficient if the intention of the promiser is adequately and definitely established. Sportsman v. Halstead, 347 Mo. 286, 147 S.W. (2d) 447; McQuitty v. Wilhite, 247 Mo. 163, 152 S.W. 598; Sutton v. Hayden, 62 Mo. 101. (8) The testimony of one witness alone has been held sufficient to establish an oral contract if his relation of the circumstances and intention of the parties is clear and convincing, even though such testimony is contradicted by other adverse witnesses. The testimony here by the principal witness as to the original promise was supported by other material evidence; and there was no contradictory or adverse evidence offered. Findley v. Johnson, 142 S.W. (2d) 61; Smith v. Lore, 325 Mo. 282, 29 S.W. (2d) 91; Merrill v. Thompson, 252 Mo. 714, 161 S.W. 674. (9) If an oral contract is ambiguous or there is reasonable doubt as to its meaning, the court in a suit for the specific performance of it will consider the acts...
To continue reading
Request your trial