Brassfield v. Allwood

• Citation: 557 S.W.2d 674
• Decision Date: 11 October 1977
• Docket Number: No. KCD,KCD
• Parties: Wilma Lee BRASSFIELD, Johnnie W. Allwood, Jr., and James K. Allwood, Appellants, v. Alice A. ALLWOOD, Respondent. 28728.
• Court: Missouri Court of Appeals

Page 674

557 S.W.2d 674

Wilma Lee BRASSFIELD, Johnnie W. Allwood, Jr., and James K.

Allwood, Appellants, v. Alice A. ALLWOOD, Respondent.

No. KCD 28728.

Missouri Court of Appeals, Kansas City District.

Oct. 11, 1977.

Michael L. Midyett, Keytesville, for appellants.

A. V. McCalley, Richmond, for respondent.

Before SHANGLER, P. J., and WELBORN and HIGGINS, Special Judges.

SHANGLER, Presiding Judge.

The appellants Wilma Lee, Johnnie, Jr. and James are children of Johnnie W. Allwood, Sr. now deceased. The father divorced their mother and married Alice Allwood before he died. The property settlement agreement incident to the divorce set over all of the real estate of the marriage to the father. After remarriage the father conveyed this land by deed to himself and Alice Allwood as tenants by the entireties. The father died on August 29, 1973. Thereafter, the children claimed the land as their inheritance as sole heirs of the father.

The children brought their petition against Alice Allwood in two counts. The first count sought to set aside the deed to her on the ground of undue influence and fraud. The second count was for the specific performance of an oral contract alleged between the children and the father to convey the land to them on performance of services to him. The case was tried to the court and at the close of the case for plaintiff, the court dismissed both counts of the petition. This appeal comes only from the dismissal of the count for specific performance.

The testimony of the mother on the formation of the oral contract between the father and children was received, but the two sons were not permitted to relate conversations with the father that the property was to be disposed to the children for their work on the farm, on the objection that § 491.010 RSMo 1969 (Dead Man's Statute) foreclosed such testimony. The court also excluded as immaterial other evidence by the mother and children that thereafter the father periodically reaffirmed that intention of disposition. The appellants (children, Wilma, Johnnie, Jr. and James) contend that the Dead Man's Statute was not properly invoked by specific objection and that, in any event, operation of the statute was waived by failure to object to the testimony of Wilma concerning the formation of the contract. The respondent argues that the evidence by Wilma was so vague that there was no basis for objection under the statute, and hence there was no waiver of her incompetency on the issue of oral contract.

We do not undertake to assess each contention of improper exclusion of evidence, either by the operation of the Dead Man's Statute or principles of materiality. Much of the evidence excluded by the trial court appears through sufficient offers of proof. To that extent, the appellants have given us a record and engaged our review. ¹ Conser v. Atchison T. & S.F. Ry. Co., 266 S.W.2d 587, 592(14, 16) (Mo.1954); Kinzel v. West Park Investment Corporation, 330 S.W.2d 792, 795(1-3) (Mo.1959). Our review compels concurrence with the determination of the trial court that the proof, made and proffered by appellant children, does not meet the standard equity exacts for recovery on such a cause of action.

The first point of appellants concerns proceedings at the outset of trial. Counsel for appellants (plaintiffs) asked leave to amend Count II for specific performance to include the mother as a party to the oral contract to convey the realty to the children. The respondent objected on the ground the amendment, which could have been done during the more than two years the suit pended, would change the defense and prejudice the defendant. The court sustained the objection and this action is attacked as an abuse of discretion. The appellants cite Rule 55.33(a) to the effect that leave to amend shall be freely given when justice requires, and cases which iterate that general principle of procedure. The function of Rule 55.33(a) is to enable a party to present matters overlooked or unknown at the time the original pleadings were filed. DeArmon v. City of St. Louis, 525 S.W.2d 795, 802(18) (Mo.App.1975). But it may not be used as a stratagem for advantage. 6 Wright and Miller, Federal Practice and Procedure, §§ 1473 and 1485, pp. 375 and 422 (1971).

The amendment requested here was of a fact known by counsel from the beginning of the litigation that is, the identity of the parties to the oral contract. As our further discussion of points more fully discloses, a suit for the specific performance of an oral contract to convey land is a species of petition which equity examines with utmost care to protect against fraud and perjury. Walker v. Bohannan, 243 Mo. 119, 147 S.W. 1024, 1028(1) (1912). These strictures require that the oral contract be clear, explicit and definite, and proven as pleaded. Bildner v. Giacoma, 522 S.W.2d 83, 87(3-7) (Mo.App.1975). It is clear then that a defendant who prepares to meet the strict proof required by such a pleading is disadvantaged by the addition of a party which, in effect, changes the cause of action at the threshold of trial. It is evident, in any event, that the refusal to allow amendment of the petition did not prejudice the plaintiffs. At pre-trial, counsel for the plaintiffs conceded the amendment was unnecessary to their theory, and at the trial there was no attempt to prove the mother was party to the contract to convey. We conclude the denial of amendment was not an abuse of discretion. Broadview Leasing Co. v. Cape Central Airways, Inc., 539 S.W.2d 553, 561(4) (Mo.App.1976).

The question remains whether the evidence sufficiently proves an oral contract to convey which equity will specifically enforce. The appeal is from a final determination on issues tried to the court, therefore our review comes under Rule 73.01(3). The judgment was entered on the motion of defendant for a directed verdict after plaintiffs completed their evidence in the manner customary in jury cases. Rule 72.01. Such a procedure, however, is anomalous in an equity case and the effect of the motion was merely to submit the issues for decision upon the merits. Rule 67.02; Moser v. Williams, 443 S.W.2d 212, 215(1-2) (Mo.App.1969). In the determination of such a submission, the trial court weighs the evidence and resolves conflicts of proof and credibility. Lee v. Smith, 484 S.W.2d 38, 42(3) (Mo.App.1972). Our review from such a decision, therefore, is compassed by the principle of Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976) that we affirm the decree of the trial court which rests on substantial evidence and is otherwise agreeable to law.

The plaintiffs pleaded an oral contract with the father whereby he promised: "(I)f they (the children) would render assistance to him in his farming operation and with his household duties and did all things to be done and performed by them with respect to assisting him, that in consideration for such assistance plaintiffs would receive the real property above described." No date is pleaded for the formation of the contract, nor does the pleading declare precisely how much acreage was encompassed by the offer. Allwood, Sr. and wife Madeline had amassed 800 acres by the time of the divorce, all of which were set over to him by the terms of their separation agreement, and all of which were thereafter conveyed by Allwood, Sr. to himself and second wife Alice as tenants by the entireties.

The evidence of the plaintiffs both as received and as offered in proof discloses:

According to the testimony of Madeline, one Sunday during the year 1954, a time when her marriage to Allwood, Sr. still subsisted, the family was gathered around the dinner table. The parents were about to purchase 152 acres, their first acquisition of land, and the father asked the children what they thought about the undertaking since: "(Y)ou're going to have to work to pay for it . . . it will be yours when your Mother and I retire or when we're gone." To which the children responded: "Go ahead and we'll help to work and pay for it; go ahead and buy it." Madeline testified also that this offer by her husband was repeated "periodically at numerous times". The children thereafter worked on the farm in addition to the regular household chores.

Wilma began her farm work when she was about eleven in the year 1946, and left home in 1953 when she married. The next year Wilma and her husband returned to the farm to help the parents, and they were both present on that Sunday in 1954 when the oral promise of the father was made. Wilma and her husband worked on the farm for three years thereafter for $150 per month and a share of the profits. According to Wilma, the profits were never paid but were used, rather, to purchase more property for eventual ownership by the children "if (they) would all work hard". Wilma was not asked about the 1954 dinner-table oral promise by the father. It was her testimony that sometime in year 1947, when she was only eleven, her father told her that "if (she) would start to work more and help in the fields more, that (they) would be able to have real estate for (her) brothers and (her)self". It was upon that promise that she commenced to work in the fields with the hired hands. The father at numerous times thereafter reaffirmed that he intended to dispose the property to the children, and it was on that expectation that she later relinquished her application to become an airline stewardess.

Johnnie Jr. commenced to work in the fields in 1951 when he was about ten years of age. According to his testimony, he was present at the Sunday dinner-table in 1954 and in consequence, he did all that his father asked him to do on the farm. Then in 1959 he enlisted in the Air Force but returned to the farm in 1962 because his father was ill, and remained until 1964. He was paid for the work he performed for his father during this period. He offered to prove that on many occasions his father reaffirmed that for his work, the...