Collord v. Cooley

• Decision Date: 11 March 1969
• Docket Number: No. 10131,10131
• Citation: 451 P.2d 535,92 Idaho 789
• Parties: Lloyd W. COLLORD, Jr., Eugena Clark, Harry Worden Collord, and Donald Adrian Collord, Plaintiffs-Appellants, v. Olive Admyers COOLEY, as Executrix of the Estate of Louella Grace Collord, Deceased, Helen Virginia Smith and Doris Jeanette Kingsbury, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 535

451 P.2d 535

92 Idaho 789

Lloyd W. COLLORD, Jr., Eugena Clark, Harry Worden Collord, and Donald Adrian Collord, Plaintiffs-Appellants, v. Olive Admyers COOLEY, as Executrix of the Estate of Louella Grace Collord, Deceased, Helen Virginia Smith and Doris Jeanette Kingsbury, Defendants-Respondents.

No. 10131.

Supreme Court of Idaho.

March 11, 1969.

Smith, Miller & Weston, Caldwell, for plaintiffs-appellants.

Alexanderson, Davis & Rainey, Caldwell, for defendants-respondents.

McFADDEN, Justice.

The plaintiffs, who are four of the five children of Lloyd W. Collord and Louella Grace Collard, both of whom are deceased, instituted this action seeking specific performance of an alleged oral contract, under the terms of which each of their parents allegedly, on December 24, 1959, executed mutual and reciprocal wills. The defendants in the action are the executrix of the estate of Louella Grace Collord, deceased, Helen Virginia Smith (the other child of Mr. and Mrs. Collord), and a granddaughter of the decedents.

The alleged mutual wills of Mr. and Mrs. Collord, the deceased parents, are identical in all material respects, and left their estate to the surviving spouse, except for a specific $500 bequest. In the event that the spouse had predeceased the testator, the property was bequeathed to their children by specific bequest.

Mr. Collord died January 23, 1960, and his will was presented to the probate court for probate. His estate, which was probated in accordance with the terms of that will, was distributed to his surviving widow, Mrs. Louella Grace Collord. On February 7, 1961, Mrs. Collord revoked her will of December 24, 1959, and executed a new will specifically disinheriting the plaintiffs. After a specific charitable bequest by this subsequent will, the testatrix devised and bequeathed the remainder of her estate equally to her daughter, Helen Virginia Smith, and to her granddaughter, Doris Jeanette Kingsbury, defendants herein.

Mrs. Collord died on March 5, 1966 and her will was admitted to probate. No claim was filed on behalf of the appellants against the estate, but on August 3, 1966, the present action was instituted. The appellants' complaint is based upon two theories. First, it alleges the existence of an oral contract between the appellants' parents as promisors and the appellants as promisees, appellants contending that under the terms of such agreement the parents, in consideration of the various services which the appellants had rendered to them over a period of years, executed mutual and reciprocal wills devising their estates to appellants. The appellants also contend that their complaint adequately alleged, as a second theory for recovery, that they are third party beneficiaries of a contract between their parents, under the terms of which their parents agreed to execute irrevocable mutual and reciprocal wills devising their estate to their children. The respondents, on the other hand, maintain that the complaint proceeds solely on the theory of a single contract between the parents and the appellants.

Respondents, by their answer to the complaint, denied that there was any contract between the appellants and their parents and also denied that the wills executed on December 24, 1959 were mutual and reciprocal wills. Additionally the respondents' answer presented several affirmative defenses. It alleged that, if there was any agreement between the appellants and the parents, that such agreement was not supported by adequate consideration and that any services performed by appellants as consideration for the agreement were gratuitous or fully compensated. The answer also presented as affirmative defenses the statute of frauds (I.C. § 9-505), that no claim had been presented pursuant to I.C. § 15-604, and further that the appellants had an adequate remedy at law and hence the extraordinary remedy of specific performance should be denied.

Respondents took the depositions of the respective appellants, and on the basis of these depositions moved for summary judgment. In opposition to the motion, the appellants submitted the deposition of Marvin Barnes. The trial court granted respondents' motion and entered summary judgment for respondents, from which judgment this appeal was perfected.

Two issues are presented by this appeal, the first being the propriety of the summary judgment on appellants' theory of the existence of a contract between their parents and themselves, and the second being the propriety of the summary judgment on appellant's theory that they are third party beneficiaries of a contract between their parents to devise property to the appellants.

It is fundamental that a summary judgment may properly be granted only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. I.R.C.P. 56(c). Merrill v. Duffy Reed Const. Co., 82 Idaho 410, 353 P.2d 657 (1960); Malone v. Continental Life & Accident Co., 89 Idaho 77, 403 P.2d 225 (1965); Steele v. Nagel, 89 Idaho 522, 406 P.2d 805 (1965); Deshazer v. Tompkins, 89 Idaho 347, 404 P.2d 604 (1965). Here a factual issue is presented by the pleadings. Appellants by their complaint allege the existence of a contract between their parents and themselves which should be specifically performed in their favor. The existence of such a contract is denied by respondents in their answer. Resolution of this issue of fact, however, is rendered immaterial by the answer of the respondents which sets forth an affirmative defense as to this issue. Respondents contend that even if there were a contract between the appellants and their parents, such a contract is not supported by a sufficient valuable consideration, and that they are entitled to summary judgment on the basis of the record before the trial court which establishes this affirmative defense.

Although this question has not been previously presented to this court, numerous federal decisions have held that if a party moves for summary judgment on the basis of an affirmative defense which entitles him to judgment as a matter of law, and if there is no genuine dispute of material fact as to that defense, even though a dispute of fact may exist as to the merits of the plaintiff's claim, summary judgment should be granted. Dam v. General Electric Co., 265 F.2d 612 (9th Cir. 1958); Gifford v. Travelers Protective Ass'n of America, 153 F.2d 209 (9th Cir. 1946); Rohner v. Union Pacific R. R. Co., 225 F.2d 272, 61 A.L.R.2d 337 (10th Cir. 1955); Altman v. Curtiss-Wright Corp., 124 F.2d 177 (2d Cir. 1941); De Luca a. Atlantic Ref. Co., 176 F.2d 421 (2d Cir. 1949); Howell v. Allied Mut. Cas. Co. of Des Moines, Iowa, 197 F.Supp. 378 (D.C.1961). See also 3 Barron and Holtzoff, Federal Practice and Procedure §§ 1244-1246, pp. 203-212 (Rules ed. 1958); 6 Moore's Federal Practice, § 56.17(4), pp. 2491-2494, wherein it is stated at p. 2493 that 'a defendant would be entitled to summary judgment on the basis of one good affirmative defense that does not involve a triable issue of fact * * *.' See also Annot. 61 A.L.R.2d 341 and Annot. 95 A.L.R.2d 648.

Respondents moved for summary judgment on the ground that they are entitled to judgment as a matter of law on all issues presented by the pleadings. This motion was supported by the depositions of the various appellants wherein each of the appellants testified as to the various services he performed for his parents over a period of several years. These depositions unequivocally reflect that the services rendered by the individual appellants were all rendered prior to any alleged contract by the parents to devise property to them. Harry Collord testified that he had worked on his parents' farm in Black Canyon during 1949 and 1950 and had performed services on the home farm. Eugena Clark testified that she cared for her mother during her mother's illness at various times over the years. Lloyd Collord, Jr., testified that he leveled land and farmed for his parents from 1943 until 1956, and Donald Adrian Collord tistified that he worked with his brothers and sisters while living at his parents' home prior to 1942.

Appellants alleged that their parents entered into a contract with them in 1959 in consideration of these past services. Respondents in their motion for summary judgment contend that such a contract is not supported by consideration and that the respondents are therefore entitled to summary judgment as a matter of law. It is our opinion that respondents are correct in this regard. It is well settled that absent an understanding at the time services are rendered that compensation will later be paid for such services, a subsequent promise to pay for them is unenforceable for lack of consideration:

'A promise is never held to be made enforceable by reason of past events unless those events have such a relation to the promise as to constitute its inducing cause. They need not be the sole inducement of the promise; but they must at least be one of the major inducing factors. The events of the past are uncounted; comparatively few of them are known to any promisor; and, even of those that are known to him, few indeed can truly be said to be an inducing factor in the making of any subsequent promise.' (Corbin on Contracts, § 210, p. 303 (one vol. ed. 1952)).

The great majority of the case law has reached this conclusion. In Williams v. Moss, 114 W.Va. 488, 172 S.E. 529 (1933), the court denied recovery on a promissory note given for past services, saying:

'* * * it may safely be asserted that past services, rendered under circumstances showing them to have been intended at the time to be gratuitous and to eliminate the expectation on the part of those rendering the services that they should be paid for and on the part of him to whom they were rendered that he should pay for them, are not sufficient to sustain a subsequent promise to pay. 172 S.E. at 530.

To the same effect are Dullard v....