Burns v. McCormick

• Decision Date: 18 April 1922
• Parties: BURNS et ux. v. McCORMICK et al.
• Court: New York Court of Appeals Court of Appeals

233 N.Y. 230

135 N.E. 273

BURNS et ux.

v.McCORMICK et al.

Court of Appeals of New York.

April 18, 1922.

Action by John A. Burns and wife against John McCormick, individually and as executor of the last will and testament of James A. Halsey, deceased, and others. Judgment for plaintiffs entered upon the report of a referee was affirmed by the Appellate Division by a divided court (194 App. Div. 979,185 N. Y. Supp. 920), and defendants appeal.

Reversed, and complaint dismissed.

Appeal from Supreme Court, Appellate Division, Fourth department.

John Griffin, of Hornell, for appellants.

Fred A. Robbins, and Harry K. Brown, both of Hornell, for respondents.

CARDOZO, J.

In June, 1918, one James A. Halsey, an old man, and a widower, was living, without family or housekeeper, in his house in Hornell, New York. He told the plaintiffs, so it is said, that if they gave up their home and business in Andover, New York, and boarded and cared for him during his life, the house and lot, with its furniture and equipment, would be theirs upon his death. They did as he asked, selling out an interest in a little draying business in Andover, and boarding and tending him till he died, about five months after their coming. Neither deed nor will, nor memorandum subscribed by the promisor, exists to authenticate the promise. The plaintiffs asked specific performance. The defense is the statute of frauds (Real Property Law [Consol. Laws, c. 50] § 259).

[1] We think the defense must be upheld. Not every act of part performance will move a court of equity, though legal remedies are inadequate, to enforce an oral agreement affecting rights in land. There must be performance ‘unequivocally referable’ to the agreement, performance which alone and without the aid of words of promise is unintelligible or at least extraordinary unless as an incident of ownership, assured, if not existing.

‘An act which admits of explanation without reference to the alleged oral contract or a contract of the same general nature and purpose is not, in general, admitted to constitute a part performance.’ Woolley v. Stewart, 222 N. Y. 347, 351,118 N. E. 847, 848.

What is done must itself supply the key to what is promised. It is not enough that what is promised may give significance to what is done. The housekeeper who abandons other prospects of establishment in life and renders service without pay upon the oral promise of her employer to give her a life estate in land must find her remedy in an action to recover the value of the service. Maddison v. Alderson, L. R. 8 App. Cas. 467, 475, 476. Her conduct, separated from the promise, is not significant of ownership, either present or prospective. Maddison v. Alderson, supra, L. R. 8 App. Cas. at pages 478, 481. On the other hand, the buyer who not only pays the price, but possesses and improves his acre, may have relief in equity without producing a conveyance. Canda v. Totten, 157 N. Y. 281, 51 N. E. 989;McKinley v. Hessen, 202 N. Y. 24, 95 N. E. 32. His conduct is itself the symptom of a promise that a conveyance will be made. Laxer tests may prevail in other jurisdictions. We have been consistent here. Woolley v. Stewart, supra; Wheeler v. Reynolds, 66 N. Y. 227, 231, 232;McKinley v. Hessen, supra, 202 N. Y. 30, 95 N. E. 32. Cf. Van Epps v. Redfield, 69 Conn. 104, 36 Atl. 1011;Ellis v. Cary, 74 Wis. 176, 42 N. W. 252,4 L. R. A. 55, 17 Am. St. Rep. 125.

[2] Promise and performance fail when these standards are applied. The plaintiffs make no pretense that during the lifetime of Mr. Halsey they occupied the land as owners or under claim of present right. They did not even have possession. Cooley v. Lobdell, 153 N. Y. 596, 601, 602,47 N. E. 783. The possession was his; and those whom he invited to live with him were merely his servants or his guests. Pollock & Wright on Possession, pp. 56, 58; Holmes, Common Law, p. 226; Kerslake v. Cummings, 180 Mass. 65, 67, 61 N. E. 760;Mygatt v. Coe, 142 N. Y. 78, 85,36 N. E. 870,24 L. R. A. 850. He might have shown them the door, and the law would not have helped them to return. Whatever rights they had were executory and future. The tokens of their title are not, then, to be discovered in acts of possession or dominion. The tokens must be found elsewhere if discoverable at all. The plaintiffs did, indeed, while occupants of the dwelling, pay the food bills for the owner as well as for themselves, and do the work of housekeepers. One who heard of such service might infer that it would be rewarded in some way. There could be no reasonable inference that it would be rewarded at some indefinite time thereafter by a conveyance of the land. Woolley v. Stewart, supra, 222 N. Y. at page 353, 118 N. E. 847. The board might be given in return for lodging. The outlay might be merely an advance to be repaid in whole or part. ‘Time and care’ might have been bestowed ‘From a vague anticipation that the affection and gratitude so created would, in the long run, insure some indefinite reward.’ Maddison v. Alderson, supra, L. R. 8 App. Cas. at page 486. This was the more likely since there were ties of kinship between one of the plaintiffs and the owner. Even if there was to be a reward, not merely as of favor, but as of right, no one could infer, from knowledge of the service, without more, what its nature or extent would be. Mr Halsey paid the taxes. He paid also for the upkeep of the land and building. At least, there is no suggestion that the plaintiffs had undertaken to relieve him of those burdens. He was the owner while he lived. Nothing that he had accepted from the plaintiffs evinces an agreement that they were to be the owners when he died.

[3] We hold, then, that the acts of part performance are not solely and unequivocally referable to a contract for the sale of land. Since that is so, they do not become sufficient because part of the plaintiffs' loss is without a remedy at law. At law the value of board and services will not be difficult of proof. The loss of the draying business in Andover does not permit us to disregard the statute, though it may go without requital. We do not ignore decisions to the contrary in other jurisdictions. Sears v. Redick, 211 Fed. 856, 128 C. C. A. 234;Aldrich v. Aldrich, 287 Ill. 213, 122 N. E. 472;Best v. Gralapp, 69 Neb. 811,96 N. W. 641,99 N. W. 837,5 Ann. Cas. 491;Schutt v. Missionary Society, 41 N. J. Eq. 115, 3 Atl. 398. Cf. 1 Williston on Contracts, § 494. They are not law for us....