Bick v. Mueller

• Decision Date: 10 September 1940
• Docket Number: 36544
• Parties: Anna Bick v. Marie Mueller, Executrix of the Estate of Henry Boeschen, and Marie Mueller, Appellants
• Court: Missouri Supreme Court

142 S.W.2d 1021

346 Mo. 746

Anna Bick v. Marie Mueller, Executrix of the Estate of Henry Boeschen, and Marie Mueller, Appellants

No. 36544

Supreme Court of Missouri

September 10, 1940

Appeal from Circuit Court of City of St. Louis; Hon. William S Connor, Judge.

Affirmed.

A U. Simmons and Edwin Rader for appellants.

(1) Any information obtained by a physician as a result of observation or examination of his patient is privileged. State v. Kennedy, 75 S.W. 979, 177 Mo. 98. Without the consent of a patient an attending physician cannot testify to any information gained by observation or conversation, and the executrix of the patient, after his death, can raise the objection to such testimony. Toman v. Liberty Life Ins. Co., 51 S.W.2d 212. (2) No action should be brought to charge any executor or administrator upon any contract for the sale of lands, tenements or hereditaments unless the agreement upon which the action shall be brought shall be in writing and signed by the party to be charged therewith or some other person by him thereto lawfully authorized. Sec. 1967, R. S. 1929. (3) Courts of equity are slow to enforce oral contracts to convey real estate. Woodward v. Stowell, 222 S.W. 815; Walker v. Bohanan, 147 S.W. 1024; Forrester v Sullivan, 231 Mo. 345; Collins v. Harrell, 219 Mo. 279; Wales v. Holden, 209 Mo. 552; Kirk v. Middlebrook, 201 Mo. 245; Rosenwald v. Middlebrook, 188 Mo. 58, 86 S.W. 200. (4) Enforcement of contracts of this character is not a matter of right. It rests within the sound discretion of the court and will never be enforced where it would be inequitable or create an injustice, or where it would work a hardship on innocent third parties. Rockhill Tennis Club v. Volker, 56 S.W.2d 9; McGinness v. Brodrick, 192 S.W. 420; Hollman v. Conlon, 143 Mo. 369; Davis v. Petty, 147 Mo. 374; Pomeroy v. Fullerton, 131 Mo. 561; Kirk v. Middlebrook, 201 Mo. 288.

A. A. Alexander and L. A. Robertson for respondent.

(1) The contract and the evidence establishing it are clear, definite and unequivocal in all the terms and phases thereof. There is nothing uncertain, ambiguous or unsatisfactory in the evidence. And, although being by parol, the agreement or contract was fully performed in whole. And the performance by Anna Bick was complete and satisfactory; the very acts of performance pointing unmistakably to the agreement or promise as the inducement thereof, and cannot be accounted for in any other manner. Respondent proved her case by evidence so unquestionable in its character, so clear, cogent and convincing that no reasonable doubt can be entertained of its truth; and no such doubt can linger either as to the existence of the contract or the certainty of its terms; or that respondent has wholly performed her part. The contract, as established by the evidence, is sufficiently definite to support a decree of specific performance. Berg v. Moreau, 199 Mo. 416; Schweizer v. Patton, 116 S.W.2d 39; Finn v. Barnes, 101 S.W.2d 718; Mahoney v. Handley, 250 S.W. 379; Merrill v. Thompson, 252 Mo. 714. (2) Even declarations of the donor, as proven in the case, establish the fact that the oral contract or agreement was made, and it is well established that such contract or agreement may be proved by declarations of the donor. Steele v. Steele, 161 Mo. 566; Bunker v. Fidelity Natl. Bank & Trust Co., 73 S.W.2d 242, 335 Mo. 305; Coshow v. Otey, 222 S.W.2d 807; Cape County Savs. Bank v. Wilson, 34 S.W.2d 981, 225 Mo.App. 14; Cole v. Armour, 154 Mo. 333; Purcifull v. Purcifull, 257 S.W. 117. (3) Appellants' plea of the Statute of Frauds can be of no avail, as full performance of contract is sufficient to prevent the operation of the Statute of Frauds. Equity will not allow the statute as a defense when to allow such defense would be itself to commit a fraud against the promisee who has performed the contract. Finn v. Barnes, 101 S.W.2d 721; Berg v. Moreau, 199 Mo. 433; Roth v. Roth, 104 S.W.2d 318; Selle v. Selle, 88 S.W.2d 881. (4) Appellants failed to move to strike the doctor's testimony, relating to privileged communications, from the record, and error, if any, was thereby waived. Cazzell v. Schofield, 8 S.W.2d 590, 319 Mo. 1169; Unrein v. Oklahoma Hide Co., 295 Mo. 373; Boyers v. Lindhorst, 280 Mo. 10; State ex rel. v. Purcell, 131 Mo. 319. (a) The erroneous evidence, if any, does not affect the merits of the action. Sec. 1062, R. S. 1929; Pinson v. Jones, 221 S.W. 87; Harrell v. Harrell, 284 Mo. 235; Wiggington v. Rule, 275 Mo. 450; Heinbach v. Heinbach, 274 Mo. 318; Rourke v. Railroad, 221 Mo. 62; King v. St. Louis, 250 Mo. 514; Shinn v. Railroad, 248 Mo. 181; Hutchison v. Safety Gate Co., 247 Mo. 101; Schleappe v. Terminal Railroad Assn., 98 S.W.2d 619, 339 Mo. 562; Marlow v. Nafziger Baking Co., 63 S.W.2d 117, 333 Mo. 790; Bennette v. Hader, 87 S.W.2d 416, 337 Mo. 977; Ambruster v. Leavitt Realty & Inv. Co., 10 S.W.2d 79, 341 Mo. 364.

Cooley, C. Westhues and Bohling, CC., concur.

OPINION

COOLEY

This is a suit for specific performance of an oral contract to convey real estate, made by Henry Boeschen in his lifetime, in consideration of services to be rendered by respondent (plaintiff), Anna Bick. The circuit court decreed specific performance and defendant has appealed. The property in question is situated on Labadie Avenue in St. Louis. It consists of a lot with a dwelling home thereon, in which Boeschen lived at the time of making the contract. It was worth between $ 4250 and $ 4500. Boeschen owned several other parcels of real estate, the value of which is not shown. He also had personal property, the amount of which likewise is not shown, except that it appears that at his death there was a check or note (apparently solvent) for about $ 1850. It does not appear that he owed any debts. The total extent and value of his holdings at his death, or at the time of making the contract, is not shown.

Boeschen had but one child, the defendant Marie Mueller, who was married and living with her husband in a home of their own. His wife died in January, 1935. After her death he was left alone in his Labadie Avenue residence. He was then old -- about seventy-eight -- and not in good health, though able to be around. It appears that after his wife's death he felt lonely and in need of someone to look after his comfort and help him take care of his property, particularly the Labadie Avenue property. In this situation he appealed to plaintiff, a married woman living with her husband and daughter. According to the testimony of Mr. Bick, who said he was present when the agreement was made between his wife, the plaintiff, and Boeschen, on March 4, 1935, the latter said he was blue and lonesome and wanted to know if they -- the Bicks -- would "room and board him" and plaintiff said she could not "room" him due to the limited room in their home. Boeschen then said he was getting tired of eating at restaurants and asked if plaintiff would give him his meals, "breakfast and supper and Sunday dinners whenever I want them if I am in town," and she said she would. Continuing, witness testified Boeschen said further:

"He said, 'I also want you to come over and help me with my household on Labadie avenue because I am getting old and can't get around like I used to,' and he said, 'My feet are bothering me and I want some one to help do my housework and laundry work and mend clothes, if necessary, and help me with my property.' Some were unoccupied and he wanted us to help clean them up, he said, 'so I can rent them;' and she said, 'Yes, I will do all of that,' and he said, 'Anna, if you will do that for the rest of my life, help me and give me my meals, I will deed or will to you upon my death one of my pieces of property,' and my wife said, 'All right,' and after awhile he said, 'Which property would you prefer, the Labadie avenue property or the place in Overland on Hawthorne?' and my wife then said she didn't care which property she would get, she would be satisfied with either one, and after a discussion he said, 'Well, since you are more acquainted with the Labadie avenue property and it is handier and closer to you, I will be glad to give you the Labadie avenue property upon my death.'"

Mr Bick's testimony as to the making of the agreement was corroborated by the testimony of Marcella Bick, plaintiff's daughter, about seventeen years old at the time of the trial, who was present and heard the conversation. The only persons present when the agreement was made were Mr. and Mrs. Bick, their daughter Marcella, and Boeschen. According to the testimony of Mr. Bick and Marcella, Boeschen said on that occasion he had called at the Bick home for the purpose of making some arrangement if he could for plaintiff to care for and assist him. Plaintiff was not permitted to testify. Mr. Bick and Marcella testified that plaintiff began the performance of the duties she had agreed to perform the next day and continued so to do until Boeschen's death, on April 10, 1936. Both, especially Mr. Bick, described how plaintiff performed those duties. Marcella was going to school and was not so particularly cognizant of details as was her father. The latter described at length and in detail the arduous labor performed by plaintiff (and if his testimony is true it was arduous, requiring much time and labor) in cleaning up and putting and keeping in order the Labadie Avenue property in which Boeschen then lived alone and which had become rather run down and in bad order since his wife's death, and also in cleaning up and helping to keep in order the house on Hawthorne Avenue in Overland, a suburb of St. Louis, to which Boeschen moved about October, 1935, and where he thereafter lived until his death. Bick said he would take his wife to the "Hawthorne"...