Broz v. Hegwood

• Decision Date: 01 July 1942
• Docket Number: 38011
• Citation: 163 S.W.2d 1009,349 Mo. 920
• Parties: Paul Broz, Plaintiff-Respondent, v. E. M. Hegwood, Administrator de bonis non of the estate of Adolph Broz; Elizabeth Broz, Anna Swantner, Mary Smetana, Theresa Hegwood, Rudolph Broz, Albina Broz and John Broz, Defendants-Appellants
• Court: Missouri Supreme Court

163 S.W.2d 1009

349 Mo. 920

Paul Broz, Plaintiff-Respondent, v. E. M. Hegwood, Administrator de bonis non of the estate of Adolph Broz; Elizabeth Broz, Anna Swantner, Mary Smetana, Theresa Hegwood, Rudolph Broz, Albina Broz and John Broz, Defendants-Appellants

No. 38011

Supreme Court of Missouri

July 1, 1942

Rehearing Denied July 28, 1942.

Appeal from Jefferson Circuit Court; Hon. Taylor Smith Judge.

Affirmed.

R E. Kleinschmidt for appellants.

(1) To warrant specific performance of an oral contract to convey real estate, contract must be clear and definite, must be proved as pleaded without being established by conversations too ancient, or too loose or casual, must be fair and based on adequate consideration, and proof must leave no reasonable doubt that full performance, so far as lies in hands of parties to perform, has been had, and work constituting performance must be referable solely to contract sought to be enforced, proof of mere disposition to devise or convey as gift or as reward for services being insufficient. Selle v. Selle, 88 S.W.2d 877; Stibal v. Nation, 98 S.W.2d 724; Boyers v. Boyers, 147 S.W.2d 473. (2) Possession plainly referable to a contract of lease and the relation of landlord and tenant does not tend to establish a contract to devise or convey the land so occupied. Unless the identical contract pleaded is established by clear, convincing proof, specific performance should be denied. Forrister v. Sullivan, 231 Mo. 345; Oliver v. Johnson, 238 Mo. 359; Walker v. Bohannan, 243 Mo. 119, 147 S.W. 1024; Hayworth v. Hayworth, 236 S.W. 26; Hinkle v. Hinkle, 236 S.W. 30; Collins v. Harrell, 219 Mo. 279; Maness v. Graham, 142 S.W.2d 1009. (3) To establish an oral contract to convey real estate as a basis for specific performance, the proof must be clear, cogent and unmistakable, and much more than loose, vague and casual conversations which evince merely a benevolent disposition on the part of the deceased. Forrister v. Sullivan, 231 Mo. 345; Oliver v. Johnson, 238 Mo. 359; Walker v. Bohannan, 243 Mo. 119; Hayworth v. Hayworth, 236 S.W. 26; Stibal v. Nation, 98 S.W.2d 724; Selle v. Selle, 88 S.W.2d 877. (4) When respondent dismissed his appeal from probate court the judgment of that court became final, and he was thereafter barred from recovering any sort of compensation, whether on quantum meruit, by specific performance, or in any other manner, for any of the services alleged in the claim filed in probate court. Sublette v. Ry. Co., 96 Mo.App. 113; Earl v. Hart, 89 Mo. 263. A probate court is a court of record and speaks through its record, hence respondent cannot now claim a contract underlying his alleged services different from that alleged in his claim filed in the probate court. Farris v. Burchard, 145 S.W. 825. (5) Where deceased agreed to convey or devise property to plaintiff for services performed, he has his choice of three remedies; he may sue the heirs in equity for specific performance of the contract, or he may abandon the contract and sue in an action at law on quantum meruit for the services, or he may sue the administrator at law upon the contract for its breach and recover damages, the measure of damages being the contract price or its value. Blackwell v. De Arment's Estate, 300 S.W. 1035; Boldwin v. Lay, 226 S.W. 602; Hall v. Getman, 121 Mo.App. 630. (6) Where a plaintiff has a choice of two inconsistent remedies, the mere filing of a suit or claim in pursuit of one remedy does not necessarily, in Missouri (being the minority rule), preclude him from basing a subsequent suit upon another form of remedy, but if the first suit or claim reaches the stage of a final judgment or finding, whether for or against him, he is thereafter precluded from pursuing any other remedy for the same subject matter, even though the subsequent suit be against different parties. Nanson v. Jacob, 93 Mo. 331; Boogher v. Frazier, 99 Mo. 325; Smith v. Berryman, 156 S.W. 40; Otto v. Young, 227 Mo. 193; Bell v. Butte Inv. Co., 250 S.W. 381; Doebbeling v. Quimby, 299 S.W. 629; Tower v. Improvement Co., 192 Mo. 379; Keystone Press v. Bovard, 153 S.W.2d 130.

Charles W. Green and Matthes & Weier for respondent.

(1) The evidence produced in behalf of respondent was of the clear, cogent and unmistakable character necessary to sustain the decree of specific performance granted herein and the chancellor's findings were substantially supported by the record. Berg v. Moreau, 199 Mo. 416, 97 S.W. 901, 9 L. R. A. (N. S.) 157; McQuitty v. Wilhite, 247 Mo. 163, 152 S.W. 598; Schweizer v. Patton, 116 S.W.2d 39; Ver Standig v. St. Louis Union Trust Co., 129 S.W.2d 905; Maness v. Graham, 142 S.W.2d 1009. (a) The contract pleaded and for which a decree of specific performance was rendered was substantially the contract proven and there was no fatal variance. Berg v. Moreau, 199 Mo. 416, 97 S.W. 901, 9 L. R. A. (N. S.) 157; Maness v. Graham, 142 S.W.2d 1009. (b) The consideration of marriage, fully performed by respondent, is in itself sufficient to support a decree of specific performance of said oral contract to convey. Nowack v. Berger, 133 Mo. 24, 34 S.W. 489. (c) Evidence submitted by defendants that deceased made statements intending to show a relationship of landlord and tenant rather than the oral contract to convey on which suit was brought for specific performance was not admissible because self-serving. Berg v. Moreau, 199 Mo. 416, 97 S.W. 901, 9 L. R. A. (N. S.) 157; Fishback v. Prock, 311 Mo. 494, 279 S.W. 38; Bosard v. Powell, 79 Mo.App. 184; Pursifull v. Pursifull, 257 S.W. 117. (2) Where the facts supporting a claim in probate court differ from the facts relied upon to support a suit for specific performance of an oral contract to convey, the doctrine of election of remedies does not apply since the same state of facts must support both claims before two or more remedies are available to a party. 18 Am. Jur. 129, 132-133. (3) Before the doctrine of the election of remedies applies, it must be first determined that the remedies between which a party is required to elect are inconsistent with one another and that one of the remedies has been invoked and followed to an ultimate end. Brown v. Essig, 1 S.W.2d 855; Steinback v. Murphy, 143 Mo.App. 537, 128 S.W. 207; Otto v. Young, 227 Mo. 193, 127 S.W. 9. (a) The filing of a claim in probate court against the estate of a deceased does not constitute an election which would preclude claimant from seeking other remedies. There is no inconsistency between a probate claim for services rendered based on quantum meruit and a subsequent or contemporary suit for specific performance of a contract based on those same services. Eastin v. Bank of Harrisonville, 213 Mo.App. 130, 246 S.W. 991; School District No. 10 v. Wilson, 135 S.W.2d 349; Fleming v. Dillon, 370 Ill. 325, 18 N.E.2d 910; Pillsbury v. Early, 324 Ill. 562, 155 N.E. 475; Thrall v. Thrall, 60 Wis. 503, 19 N.W. 353; Lowrey v. Schroeder, 190 Iowa 459, 180 N.W. 145; Sullivan v. Ross, 113 Mich. 311; Howard v. Paulson Co., 41 Utah 490, 127 P. 284; Pollock v. Cantlin, 253 Ill.App. 229. (4) A voluntary dismissal of an appeal from the probate to the circuit court is, in effect, a voluntary nonsuit and is no bar to a further proceeding in the circuit court. R. S. 1939, sec. 1026; Baldwin v. Davidson, 139 Mo. 118, 47 S.W. 765; Wetmore v. Crouch, 188 Mo. 647, 87 S.W. 954; O'Malley v. Musick, 191 Mo.App. 405, 177 S.W. 749. (a) Even though pursued to final judgment, the probate claim, would not be a bar to a subsequent proceeding in circuit court. Tootle v. Buckingham, 190 Mo. 183, 88 S.W. 619; Fritsch Foundry & Machine Co. v. Goodwin Mfg. Co., 100 Mo.App. 414, 74 S.W. 136.

OPINION

Clark, J.

Paul Broz sued the administrator and heirs of Adolph Broz, deceased, for specific performance of an oral contract whereby it is alleged that deceased agreed to convey to plaintiff (respondent) certain described real estate, in consideration for certain services to be rendered by plaintiff. The decree was for plaintiff and the administrator and some of the heirs have appealed.

The contract alleged in the amended petition on which the case was tried is as follows: "that in March, 1927, he (deceased) told plaintiff, Paul Broz, that if he would get married and move on his, Adolph Broz, farm which he then owned, take care of him and pay taxes on said farm and take care of said farm he would at his death give plaintiff said farm, . . ."

Some of the defendants made default. The others filed answer admitting certain allegations, denying all others and then stating: that plaintiff had prosecuted a claim for the same services, on quantum meruit, in the probate court where judgment had been rendered against him; that he had appealed to the circuit court and later dismissed the appeal; that by prosecuting his claim in the probate court plaintiff elected to abandon the alleged contract and is now estopped from asking specific performance of the contract based on the same services.

Appellants have made a number of assignments of error, all of which fall under two general questions, to-wit: (1) is respondent's suit barred under the doctrine of election of remedies? (2) is the evidence of the making of the contract and its performance by respondent sufficient to support the decree in his favor?

(1) The parties have cited a great many cases on the doctrine of election of remedies. The facts in each of them differ from those in the instant case, but they generally agree that the doctrine applies only where the party has but one cause of action, one right infringed, one wrong to be redressed. The doctrine does not require election between distinct causes of action arising out of separate and distinct facts. [28 C. J S., sec. 3, page 1065, and case...