Caspers v. Frerichs

• Decision Date: 25 January 1946
• Docket Number: 32001.
• Citation: 21 N.W.2d 513,146 Neb. 740
• Parties: CASPERS et al. v. FRERICHS et al.
• Court: Nebraska Supreme Court

21 N.W.2d 513

146 Neb. 740

CASPERS et al. v. FRERICHS et al.

No. 32001.

Supreme Court of Nebraska

January 25, 1946

Syllabus by the Court.

1. In an action for specific performance of an oral contract within the statute of frauds, the evidence of the alleged contract and its terms 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, satisfactory and unequivocal evidence, they are unenforceable unless it is also proved by evidence of like character that there has been such performance as the law requires.

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

4. Nothing will be considered as part performance which does not put the party into a situation which is a fraud upon him unless the contract is fully performed because equity interferes in such cases only to prevent fraud or unconscionable advantage.

Albert S. Johnston, of Lincoln, for appellants.

Tyler & Frerichs, of Nebraska City, and Cline Williams & Wright, of Lincoln, for appellees.

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

CHAPPELL Justice.

This is a suit in equity wherein it is sought to obtain specific performance of an oral contract to devise real and personal property and establish a trust for the purpose of enforcing the same. At the conclusion of the plaintiffs' evidence defendants moved to dismiss for want of sufficient evidence to sustain a judgment. The trial court thereupon sustained the motion and entered judgment dismissing the case at plaintiffs' costs. Motion for new trial was overruled and plaintiffs appealed to this court assigning that the trial court erred in sustaining the motion and in the refusal to receive in evidence certain described and enumerated exhibits offered by them. We find that these contentions cannot be sustained.

In arriving at the conclusions hereinafter set forth we are mindful of the rule that: 'When a defendant moves for a dismissal at the close of plaintiff's evidence, he thereby admits plaintiff's evidence to be true, together with every conclusion which fairly and reasonably may be drawn thereform.' Lucas v. Lucas, 138 Neb. 252, 292 N.W. 729.

Plaintiffs are always confronted in similar cases with the necessity of removing their alleged oral contract from the operation of the statute of frauds, the applicable provisions of which will be found in sections 36-103 to and including 36-106 R.S.1943.

Generally in a suit to enforce specific performance of an oral contract embraced within the statute of frauds, the burden is upon the plaintiff to establish two distinct elements by a preponderance of the evidence which must be clear satisfactory and unequivocal in character or quality. Those elements are acts of part performance of the contract and the terms of the contract itself. Theoretically, the acts of performance must be first proved in order to fulfill the condition precedent to admission of parol evidence of the contract. This is not, however, a mere question of the order of proof but involves the very principle of equity jurisdiction itself. The rule is that nothing will be considered as part performance which does not put the party into a situation which is a fraud upon him unless the alleged contract is fully performed because equity interferes in such cases only to prevent fraud or unconscionable advantage. Overlander v. Ware, 102 Neb. 216, 166 N.W. 611, 612.

In that connection plaintiffs contend that acts of performance adduced in evidence for that purpose need not be solely referable to the identical oral contract alleged if naturally referable to and not inconsistent with some contract, such as the one alleged. They argue that if such facts are shown and there is evidence supporting the existence of the contract alleged, then the evidence is sufficient to sustain a judgment. In cases similar to the one at bar that contention is not entirely correct as will be observed by an examination of recent authorities from this jurisdiction which are hereinafter cited.

It was said in Overlander v. Ware, supra: 'In considering cases of this character, 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.'

That applicable statement of the law has either been adopted verbatim or reaffirmed by reference in five recent cases decided by this court. See Taylor v. Clark, 143 Neb. 552, 563, 10 N.W.2d 495, 13 N.W.2d 621; Cahill v. Mockett, 143 Neb. 730, 10 N.W.2d 679; Crnkovich v. Crnkovich, 144 Neb. 904, 905, 15 N.W.2d 66; Diez v. Rosicky, 145 Neb. 242, 16 N.W.2d 155 and Lintz v. Apking, 145 Neb. 714, 18 N.W.2d 55.

In the latter case above cited it was held: 'In order to enforce an oral contract for the conveyance of the estate of a deceased person the evidence of the contract and its terms must be clear, satisfactory and unequivocal; the evidence of performance must be clear and satisfactory; and 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.'

Other cases cited herein as positively state the...