Berg v. Moreau

• Decision Date: 21 November 1906
• Citation: 97 S.W. 901,199 Mo. 416
• Parties: JOHN BERG, Executor and Sole Legatee of ROSALIE BERG, v. AUGUST MOREAU, Executor and Heir of FRANCIS MOREAU, Appellant
• Court: Missouri Supreme Court

97 S.W. 901

199 Mo. 416

JOHN BERG, Executor and Sole Legatee of ROSALIE BERG, v. AUGUST MOREAU, Executor and Heir of FRANCIS MOREAU, Appellant

Supreme Court of Missouri, Division One

November 21, 1906

Appeal from St. Louis County Circuit Court. -- Hon. Jno. W McElhinney, Judge.

Affirmed.

Wm. F Broadhead and R. H. Stevens for appellant.

(1) To specifically enforce a verbal contract to convey land or to make a will devising land or bequeathing personalty, the contract must be established by clear, definite, unequivocal proof leaving no room for a reasonable doubt. If the terms are uncertain or ambiguous, or if not made out by satisfactory proof leaving no room for a reasonable doubt specific performance will be refused. Gibbs v. Whitwell, 164 Mo. 391; Berry v. Hartzell, 91 Mo. 132; Rogers v. Wolfe, 104 Mo. 1; Railroad v. McCarthy, 97 Mo. 214; Sitton v. Shipp, 65 Mo. 297; Kinney v. Murray, 170 Mo. 674; Viers v. Viers, 175 Mo. 444; Steele v. Steele, 161 Mo. 575; Goodin v. Goodin, 172 Mo. 40; Alexander v. Alexander, 150 Mo. 579. (2) Statements, admissions and loose declarations of the party are insufficient to establish the contract charged. Underwood v. Underwood, 48 Mo. 527; Johnson v. Quarles, 46 Mo. 427; Rogers v. Wolfe, 104 Mo. 1; Sitton v. Shipp, 65 Mo. 297; Berry v. Hartzell, 91 Mo. 132; Teats v. Flanders, 118 Mo. 669; Kinney v. Murray, 170 Mo. 674. (3) Having laid down the rule that the proof of the contract must be such as to leave no room for a reasonable doubt, the rule is further established with reference to performanec or part performance, that "there must be like proof that the acts performed refer to and result from the agreement, and are such as would not have been done unless on account of that very agreement and with a direct view to its performance." "There must be no uncertainty or equivocation in the case." Rogers v. Wolfe, 104 Mo. 10; Sitton v. Shipp, 65 Mo. 297; Emmel v. Hayes, 102 Mo. 186; Ellis v. Railroad, 51 Mo. 200; Gibbs v. Whitwell, 164 Mo. 387; Underwood v. Underwood, 48 Mo. 527; Alexander v. Alexander, 150 Mo. 579. (4) Enforcement of specific performance is not a matter of absolute right; it rests in the sound discretion of the chancellor, to be governed by the circumstances, and will not be granted if unjust, unconscionable or inequitable, or if it would work a hardship or injustice to enforce it, and it is unjust to allow $ 1,600 worth of property for services shown to be worth $ 257. Pomeroy v. Fullerton, 131 Mo. 594; Sease v. Cleveland Co., 141 Mo. 488; Vieth v. Gierth, 92 Mo. 97; Fish v. Lightner, 44 Mo. 272; Taylor v. Williams, 45 Mo. 83; Durretts v. Hook, 8 Mo. 382; McElroy v. Maxwell, 101 Mo. 294; Waterman on Spec. Per., pp. 305-306; Brown, Exrx., v. Massey, 138 Mo. 519; In re Ferguson Estate, 124 Mo. 583; Railroad v. Curtis, 154 Mo. 10; Shinkle v. Vickery, 156 Mo. 10. (5) There was no contract established by legal or sufficient proof, nor any ratification of the contract alleged nor part performance shown by sufficient evidence, and the pleas of the Statute of Frauds should prevail. (6) The plaintiff has an adequate and complete remedy at law either by the proof and allowance of the claim in the probate court against the Moreau estate, which is ample to meet all claims, or by the acceptance of the provisions made in the last will amounting in value to $ 340, to pay for services valued, according to the testimony, at about $ 257.

Geo. W. Wolff for respondent.

(1) The oral contract or promise sued on was established by proof sufficiently clear, definite and unequivocal, as to leave no room for reasonable doubt in the mind of the chancellor; nor is there any uncertainty or ambiguity in its terms; thus fully measuring up to the test and standard required in cases of this character. And such evidence may consist in declarations and acts of decedent with their attending circumstances. Steele v. Steele, 161 Mo. 575. (2) The admissions and declarations supporting the promise or agreement, as shown by the evidence, were not of that character usually condemned by the authorities because of their vagueness and indefiniteness, or remoteness as to time; they were clear, positive and convincing and all quite recently made and backed up and fortified by the old man's first will. (a) It is well established that an oral gift or promise may be proven by declarations of donor. Such promise need not be in writing, but it is sufficient if made orally; nor need such promise be clothed in technical and precise terms, but is sufficient if no doubt remains as to promisor's intentions to promisee. Sutton v. Hayden, 62 Mo. 101; Steele v. Steele, 161 Mo. 575. (b) The paper of February 3, 1902 (or first will), was properly admissible in evidence, not as showing a contract, but by way of ratification, and as showing the old man's then fixed purpose and intent. Hiatt v. Williams, 72 Mo. 214; Thompson v. Ish, 99 Mo. 160; Lillard v. Wilson, 178 Mo. 158. (c) An expressed intention to give is but little short of a promise to give, and when acted upon by the intended donee, to his or her disadvantage, with the knowledge of the donor, the effect of a promise should be given to it. Hubbard v. Hubbard, 140 Mo. 308. (d) Where services are rendered, or a beneficial act is done, the subsequent assent of the beneficiary will be sufficient evidence to authorize the finding of a previous request. Kurr v. Cusenbury, 60 Mo.App. 558. (3) The services rendered (which are conceded) are referable solely to and result from the agreement. The same proof which has left no room for reasonable doubt as to the latter, has clearly established the former. All the facts and circumstances in the case, the condition and situation of the parties, corroborates and sustains the theory of respondent's case. (4) Appellant's plea of the Statute of Frauds can be of no avail, as either part or (as in this case) full performance on part of promise is sufficient to prevent its operation. Gupton v. Gupton, 47 Mo. 37; Sutton v. Hayden, 62 Mo. 101; West v. Bundy, 78 Mo. 407; Sharkey v. McDermott, 91 Mo. 647; Hall v. Harris, 145 Mo. 621; Green v. Ditsch, 143 Mo. 1; Alexander v. Alexander, 150 Mo. 599; Koch v. Hebel, 32 Mo.App. 103; Marks v. Davis, 72 Mo.App. 557; Chenoweth v. Pac. Ex. Co., 93 Mo.App. 185. (5) Whilst enforcement of specific performance is not a matter of absolute right and rests in the sound discretion of the chancellor, there is no reason why respondent should be relegated to her action at law to recover for the value of her services; there is nothing unjust, unconscionable or inequitable in the contract, nor will its enforcement work a hardship and injustice upon appellant, as claimed; in view of all the circumstances of the case, the value of the whole estate, the situation of the parties, etc., the contract was a fair, just and equitable one, and having been fully performed upon the one side should be performed upon the other. Wright v. Tinsley, 30 Mo. 389; Gupton v. Gupton, 47 Mo. 37; Sutton v. Hayden, 62 Mo. 101; Sharkey v. McDermott, 91 Mo. 647; Hall v. Harris, 145 Mo. 614; Alexander v. Alexander, 150 Mo. 579; Fuchs v. Fuchs, 48 Mo.App. 18.

OPINION

LAMM, J.

This is a suit in equity to enforce specific performance of an alleged oral contract between Francis Moreau, deceased, on the one part and Rosalie Berg, deceased, on the other, to make a will devising or otherwise conveying a certain small parcel of real estate in St. Louis county, and bequeathing certain chattels to said Rosalie Berg, in consideration of services to be by her rendered and which, it is alleged, were fully performed.

The chancellor, having decreed specific performance, defendant appealed. After the cause came here, Rosalie Berg, plaintiff below, died testate, leaving her husband, John Berg, executor and sole devisee; whereupon on suggestion and by stipulation the cause was revived in the name of John Berg as respondent.

The learned chancellor made a finding of facts and pronounced thereon conclusions of law, as follows:

"The following facts are established beyond dispute.

"Francis Moreau was, in February, 1901, 79 years of age. He was somewhat feeble but led an active life and did not anticipate any immediate or sudden death. He lived practically alone. His only child was a son, living apart and somewhat estranged. The son was in independent circumstances, having a house and family of his own.

"Mr Moreau owned a small homestead of 5.30 acres, worth $ 1,000 to $ 1,500, a detached farm of 85 acres of land, worth about $ 10,000, notes amounting to about $ 2,000, and a horse and buggy, with some household effects about his house, worth together $ 135.

"He needed the assistance of a woman, to live with him, keep house for him, minister to his wants and nurse him in sickness. He secured the services of Mrs. Berg, to stay with him with her husband, for this purpose. He was not to pay her or compensate her in money for her services. This is testified to by witnesses for plaintiff and for defendants. (Testimony of Wielandy, Constantine and Schrader, with that of others.) In lieu of wages he was to give her the homestead of 5.30 acres -- for how long is disputed -- with the horse and buggy and certain other personal property -- which is also in dispute.

"Mrs. Berg, with her husband, moved to Mr. Moreau's house and faithfully performed the services required of her to his satisfaction from February 6, 1901, to his death, February 14, 1902. The reasonable value of her services for this period, so far as the same can be estimated in money, was $ 15 per month for eleven and one-half months, and $ 3.50 per day for the remaining 23 days, being in all $ 353.

"The use of the property for two years with the horse and buggy and all the furniture in the house,...