Bicknell v. Guenther

• Court: Washington Supreme Court
• Writing for the Court: DONWORTH; ROSELLINI; FINLEY; HUNTER, J., concurs with FINLEY; HAMILTON
• Citation: Bicknell v. Guenther, 399 P.2d 598, 65 Wn.2d 749 (Wash. 1965)
• Decision Date: 25 February 1965
• Docket Number: No. 36917
• Parties: Stanley BICKNELL, Respondent, v. Clarence GUENTHER, as Administrator of the Estate of Sarah Ann Guenther, Appellant.

Page 749

65 Wn.2d 749

399 P.2d 598

Stanley BICKNELL, Respondent, v. Clarence GUENTHER, as Administrator of the Estate of Sarah Ann Guenther, Appellant.

No. 36917.

Supreme Court of Washington, En Banc.

Feb. 25, 1965.

J. Dorman Searle, Chehalis, Grant Armstrong, Murray, Armstrong & Vender Stoep, Chehalis, for appellant.

Donal D. Sherfy, Tacoma, for respondent.

DONWORTH, Judge.

This action was brought for specific performance of an alleged oral contract wherein plaintiff would perform work and services on decedent's farm and she, in turn, would devise all of her property to him. The defendant is the administrator of her estate. Both parties are appealing and will be designated by their titles in the original action.

The evidence shows that plaintiff had worked as a logger from 1930 to 1937. He had known the decedent and her husband for several years and owned a 40-acre tract adjoining theirs. The husband of decedent died in March, 1937. The plaintiff went to work for her on April 9, 1937, and worked regularly on her farm until June, 1961, when she died.

Nine witnesses all testified that they had known the decedent from eight to fifty years. They had lived as neighbors and had had many conversations with her about her property and her relations with plaintiff. Their testimony was undisputed.

In 1949 and 1958, respectively, plaintiff built a machine shop and a lower barn on decedent's property. These were substantial permanent buildings with concrete foundations, sheet metal roofs, and frames of rough boards sawed in plaintiff's own mill. The testimony was that when these were being erected, decedent had stated:

"* * * What is the use of having it down there? (Meaning on decedent's farm) * * * he is putting it there because it (the farm) will be his when I am through with the place. He is going to have all of this anyway, and he wants all of these buildings together. * * * He has worked and stood by me all these years, and more than earned anything that I could leave him on this property * * * This farm, the property, is his when I pass on. He has earned it three times over. * * *"

Plaintiff testified that, for seven years prior to 1937, he had worked as a logger for $5.60 a day. When he went to work for decedent, he received $45 a month and room and board for three months. His wages were then reduced to $15 a month until October, 1942, when mortgages on the property were paid off. Thereafter, he received $45 a month until 1961, when he received one half of the net income from the farm until she died in June, 1961.

The testimony concerning these mortgages was that decedent had stated that the only one who helped her was Stanley (plaintiff) and that he worked with her until they got out of debt; if it hadn't been for him she never would have maintained the farm, and that is why she wanted to leave it to him. "It is his. I am giving it to him. * * * He has earned it, the long hours he has put in."

There was testimony that plaintiff's relationship with decedent was much more than the usual employer-employee relation. He was treated as one of the family, and performed many more duties than those normally required of a farm laborer. Several witnesses testified that plaintiff had worked on the farm from early morning until late at night, week ends included, and, with minor exceptions, had taken no vacations. He furnished his own automobiles for transportation for decedent and her family from 1937 to 1944, and again from August, 1960, until the time of her death.

Plaintiff offered in evidence an unsigned will form in which decedent, in her own handwriting, had first made nominal bequests to relatives (several of whom predeceased her), and then provided:

'Fifth, to Stanley Bicknell, Executor for faithful services, since 1937 All other Personal Property and Realestate, Stocks and Money inherited or otherwise.

'Should said, Executor be deceased at my death, his said inheritance shall go to The Children's Orthopedic Hospital, Seattle, Washington.'

This had been discovered in a bedroom in her house a few months after her death.

There was also testimony that a 'Memo' in decedent's handwriting was found a few days after her funeral. It stated:

'Stanley shall have the use of my property and the proceeds thereof until his death, after which it will go to the Orthopedic Hospital.'

Defendant's wife found this memorandum in the presence of both plaintiff and defendant. However, it was not introduced into evidence and no one testified as to what became of it. Defendant testified that it had been shown and delivered to plaintiff soon after it was found.

The testimony offered by the defendant was rather brief and did not conflict with that of plaintiff's witnesses.

After the trial, the court decreed specific performance of the alleged oral contract whereby plaintiff received the real property and personal property appurtenant to the farm, but denied specific performance as to the remainder of the estate, consisting of bank accounts and shares of dairy stock.

Defendant appealed from the award of any property to plaintiff. Plaintiff has cross-appealed, assigning error to the court's award of the bank accounts and stock to defendant and in refusing to permit plaintiff to testify concerning certain matters which are discussed fully below in connection with the cross-appeal.

The defendant's first 10 assignents of error are based upon the findings of the trial court that an implied contract was entered into whereby the decedent agreed to devise and bequeath certain property to plaintiff in consideration of services to be performed by him as agreed.

The trial court's findings of fact relative to the alleged oral contract and decedent's breach thereof are as follows:

'III. Plaintiff, Stanley Bicknell and Sarah Ann Guenther, during the lifetime of Sarah Ann Guenther, entered into a contract and agreement, express or implied, in which it was agreed that Stanley Bicknell would perform many and varied services for Sarah Ann Guenther; and Sarah Ann Guenther promised and agreed to devise and bequeath certain of her property to Stanley Bicknell in consideration of the performance of said contract by Stanley Bicknell. This contract was accepted by the plaintiff and Sarah Ann Guenther.

'IV. Pursuant to and in reliance on said contract and by virtue of the terms thereof and in performance thereof, Stanley Bicknell did remain on said farm (the real estate referred to herein) and belonging to Sarah Ann Guenther and performed his obligations as required in said contract, since April 1937, and Stanley Bicknell did remain on said farm until after June 4, 1961.

'V. Since 1937, and pursuant to the terms of said contract, the income from the labors and services of Stanley Bicknell were used to pay off the encumbrance on said farm and to generally improve said farm, but equipment livestock and generally contribute to the expenses of the operation of said farm. Plaintiff accepted a diminished wage during the later months of 1937 and until the mortgage on the farm referred to herein was paid off in 1942.

'VI. Plaintiff performed many and varied services including but not limited to furnishing transportation to and for Sarah Ann Guenther, and nursing care and personal services for Sarah Ann Guenther's father, Abe Amstutz; plaintiff worked steadily long hours and worked exceptionally hard; plaintiff took one vacation that amounted to anything, from 1937 to 1941 ¹; all of this conduct by the plaintiff was not the normal conduct of a person working for wages only.

'VII. Sarah Ann Guenther induced plaintiff to build a machine shop and another building referred to as the 'lower barn' on plaintiff's (sic) (decedent's) property. These buildings were of substantial size and value. Sarah Ann Guenther dissuaded plaintiff from building these buildings on plaintiff's own real estate which was located adjacent to the farm referred to herein.

'VIII. The deceased Sarah Ann Guenther had no obligation to support any of her relatives referred to in this matter.

'IX. No Will has been admitted to probate and plaintiff and defendant have been unable to locate any Last Will and Testament of Sarah Ann Guenther, although the parties hereto have made diligent search for said Will. By reason of no Will having been made, Sarah Ann Guenther broke, breached and failed to perform the terms and conditions and duties imposed upon her by said contract and agreement referred to herein.'

Defendant has argued these assignments together under these headings: (A) Was there a contract? (B) Which property did it cover? (C) Does the evidence justify specific performance?

If the answer to the first question is in the negative, we need not consider the other two questions.

Assignments of error No. 11 and No. 12 deal with the admission of the evidence of the two mortgages and their satisfactions and testimony concerning wages paid by decedent to the plaintiff.

The trial court, in its oral decision, said:

'There seems to be just one question in this case, and that is whether there was a contract or not, and there certainly is no proof of an express contract. That is, no one heard the parties actually make an agreement, and, therefore, the problem is whether the evidence clearly shows that such a contract existed, express or implied.

* * *

* * *

'I feel that the evidence overwhelmingly supports the Plaintiff's contention that there is a contract ot convey or will the tangible assets, real property, farm equipment, farm machinery, any hay crop that was present, farm animals, the personal and real property.'

It is apparent, from reading the trial court's findings in the light of the abovequoted portions of its oral opinion at the close of the trial, that the court found that there was no Express contract between plaintiff and the decedent relative to devising and bequeathing to him her farm and the personal property situated thereon at the time of her death. Therefore,...