Casper v. Frey, 32720

• Decision Date: 24 February 1950
• Docket Number: No. 32720,32720
• Citation: 41 N.W.2d 363,152 Neb. 441
• Parties: CASPER et al. v. FREY et al. (FREY, Intervener).
• Court: Nebraska Supreme Court

Page 363

41 N.W.2d 363

152 Neb. 441

CASPER et al. v. FREY et al. (FREY, Intervener).

No. 32720.

Supreme Court of Nebraska.

Feb. 24, 1950.

Syllabus by the Court.

1. Where one is claiming the estate of a person deceased under an alleged oral contract, the evidence of such contract and the terms of it must be clear, satisfactory and unequivocal.

2. Such contracts are on their face void as within the statute of frauds, because not in writing, and, even though proved by clear and satisfactory evidence, they are not enforceable unless there has been such performance as the law requires.

3. The thing done, constituting performance, must be such as is referable solely to the contract sought to be enforced, and not such as might be referable to some other and different contract--something that the claimant would not have done unless on account of the agreement and with the direct view to its performance--so that nonperformance by the other party would amount to fraud upon him.

4. The burden in the light of this rule has devolved upon the plaintiff (1) to prove an oral contract the terms of which are clear, satisfactory and unequivocal, and (2) that his acts constituting performance were such as were referable solely to the contract sought to be enforced, and not such as might have been referable to some other or different contract.

5. Each case is to be determined from the facts, circumstances, and conditions as presented therein.

Lloyd E. Chapman, Lincoln, for appellants.

William L. Walker, Earl Ludlam, Leonard Dunker, Merril R. Reller, and Wagener & Ronin, all of Lincoln, for appellees.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

SIMMONS, Chief Justice.

Plaintiffs brought this action for specific performance of an oral contract to devise real property. Issues were made and trial was had. At the close of plaintiffs' evidence, the trial court sustained a motion to dismiss. Plaintiffs appeal. We affirm the judgment of the trial court.

The plaintiffs in this action are Henry L. and Ida J. Casper. The defendants are Jerry W. Frey, administrator of the estate of Catherine Oelting, deceased, and the State of Nebraska. The State is made a party on the premise that unless the contract alleged is performed, the property will escheat to it.

Plaintiffs do not allege the date when the alleged contract was made. By limits fixed within the allegations it occurred sometime after May 1942, and prior to the latter part of May 1943. Plaintiffs allege the status of the parties, the basis of the acquaintance, their tenancy in property of Mrs. Oelting, and services rendered Mr. and Mrs. Oelting beginning in May 1942. Plaintiffs further allege that Mrs. Oelting orally promised plaintiffs that if they would continue to perform such services for her as she might request from time to time during the remainder of the life of her husband and herself, she would leave them all her property at her death; that plaintiffs accepted the proposal and agreed so to do, and thereafter performed in reliance on the promise and agreement of Mrs. Oelting; and that Mrs. Oelting never completed the execution of a will. Plaintiffs prayed for specific performance and for equitable relief.

So far as material to the issues for determination here, the administrator, herein referred to as the defendant, denied generally, and prayed for a dismissal or the plaintiffs' petition and a quieting of the title.

Grace Frey, otherwise identified in the pleadings as a daughter of Mr. Oelting and the wife of defendant, intervened, denied generally, and prayed for affirmative relief by way of a cross-petition. The issues so raised are not material to our decision of the questions presented by this appeal.

The State filed a general denial.

Plaintiffs replied.

The cause went to trial. At the close of plaintiffs' evidence, the defendant moved for a dismissal of plaintiffs' petition for failure of sufficient proof. The motion was sustained. A motion for a new trial was made and overruled.

The rules applicable to cases of this character were restated in Lunkwitz v. Guffey, 150 Neb. 247, 34 N.W.2d 256, as follows: 'Where one is claiming the estate of a person deceased under an alleged oral contract, the evidence of such contract and the terms of it must be clear, satisfactory and unequivocal. * * * Such contracts are on their face void as within the statute of frauds, because not in writing, and, even though proved by clear and satisfactory evidence, they are not enforceable unless there has been such performance as the law requires. * * * The thing done, constituting performance, must be such as is referable solely to the contract sought to be enforced, and not such as might be referable to some other and different contract--something that the claimant would not have done unless on account of the agreement and with the direct view to its performance--so that nonperformance by the other party would amount to fraud upon him. * * * The burden in the light of this rule has devolved upon the plaintiff (1) to prove an oral contract the terms of which are clear, satisfactory and unequivocal and (2) that his acts constituting performance were such as were referable solely to the contract sought to be enforced, and not such as might have been referable to some other or different contract. * * * Each case is to be determined from the facts, circumstances, and conditions as presented therein.' See, also, Jenkins v. Jenkins, 151 Neb. 113, 36 N.W.2d 637.

The case comes to this court for trial de novo subject to the rule that "When defendant moves to dismiss plaintiff's action at the close of plaintiff's evidence, the defendant thereupon admits the plaintiff's testimony to be true, together with every conclusion which may fairly and reasonably be drawn therefrom.

"The court must thereupon determine, as a question of law, whether plaintiff's evidence is sufficient to support a judgment for the plaintiff." Meyer v. Platt, 137 Neb. 714, 291 N.W. 86, 88. See, also, Schroeder v. Bartlett, 129 Neb. 645, 262 N.W. 447; Lucas v. Lucas, 138 Neb. 252, 292 N.W. 729; Caspers v. Frerichs, 146 Neb. 740, 21 N.W.2d 513.

The record shows that Mrs. Oelting received title to the property here involved by warranty deed on May 5, 1924; that by warranty deed dated February 8, 1935, and filed July 16, 1935, Mrs. Oelting and her husband conveyed it to the Nebraska Central Building and Loan Association; and that that grantee conveyed it to Mrs. Oelting by warranty deed dated July 26, 1946, and filed July 30, 1946, the conveyance being 'Subject to all liens of every nature that have arisen since October 5, 1936,' and to taxes for 1936 and thereafter.

Plaintiffs' evidence was given by a son of Mrs. Casper, his wife, a daughter of the plaintiffs, and by a long-time family friend of plaintiffs and particularly of the daughter. Where necessary they will be referred to herein as the son, daughter-in-law, daughter, and friend, and where necessary the plaintiffs will be referred to as Mr. or Mrs. Casper.

The evidence is that the property here involved included a duplex, the north half of which had five rooms. The evidence refers to the property as 2434 and 2436 South 10th Street, In May of 1942, the Oeltings lived in the south half of the duplex. At that time the plaintiffs rented the north half for $15 a month, moved in and resided there, paying rent, until June 30, 1943, when they moved to 920 South 15th Street, where they have since resided. During the early part of this tenancy the son, his wife, and family, and the daughter and her child lived for about two weeks with the plaintiffs in the duplex. Thereafter they moved to other addresses in Lincoln. Prior to the tenancy the plaintiffs, their family, and the friend had not been acquainted with the Oeltings. The acquaintance began under those circumstances.

In 1942, Mrs. Oelting was 63 years of age and her husband some 20 years older. Mrs. Oelting was in good health for a woman of her years. Mr. Oelting was in poor health. In the spring of 1943, he underwent a serious operation and was in the hospital for some weeks. Thereafter his health deteriorated so that he became progressively less able to care for himself and he lost control of his bodily functions so that he required the care and attention given to a baby. He died January 16, 1948. Mrs. Oelting became seriously ill in 1948, was in the hospital on two occasions, and died November 14, 1948.

The evidence is that when the plaintiffs lived in the property and after they moved from the duplex, they responded to calls on many occasions for service by Mrs. Oelting and did many things for her and Mr. Oelting, such as cleaning out the furnace and ashes, repairing electrical attachments and a washing machine, mowing the lawn, assisting in the laundry work, and giving food and delicacies to the Oeltings. The evidence is that they gave Mrs. Oelting some of their used clothing and acquired clothing for her at the Salvation Army and Goodwill Industries, and at one time bought a second-hand electric iron at $1.25 to replace one worn out, and also secured an electric washing machine for her. Thereafter on many occasions the parties visited in each others homes and in the homes of plaintiffs' children throughout the period covered by this testimony.

The plaintiffs and other members of their family assisted during the periods that the Oeltings were in the hospital. Upon Mr. Oelting's death they helped clean up the house, put articles of furnishings therein, and rendered like services. There is no...