O'Connor v. Waters

• Decision Date: 09 January 1911
• Docket Number: 16,243
• Citation: 129 N.W. 261,88 Neb. 224
• Parties: CHARLES O'CONNOR, APPELLEE, v. MICHAEL WATERS, ADMINISTRATOR, ET AL., APPELLANTS
• Court: Nebraska Supreme Court

129 N.W. 261

88 Neb. 224

CHARLES O'CONNOR, APPELLEE, v. MICHAEL WATERS, ADMINISTRATOR, ET AL., APPELLANTS

No. 16,243

Supreme Court of Nebraska

January 9, 1911

APPEAL from the district court for Dakota county: GUY T. GRAVES JUDGE. Affirmed.

AFFIRMED.

Sullivan & Griffin, Alfred Pizey, F. S. Berry and M. C. Beck, for appellants.

J. J McAllister and R. E. Evans, contra.

ROOT J. REESE, C. J., not sitting.

OPINION

ROOT, J.

This is an action to enforce the specific performance of an oral contract, by the terms of which Patrick O'Connor agreed to convey or devise to his son, the plaintiff, a quarter section of land in Dakota county. The plaintiff prevailed, and the defendants appeal.

It appears that in 1879, Patrick O'Connor, now deceased, in company with his wife and seven children, came to Dakota county, and two years subsequently acquired title to the land in controversy. Patrick O'Connor's four daughters remained at home until they entered the marriage relation, but the sons, Morris and John, and Charles, the plaintiff, did not marry. Patrick O'Connor made some inconsiderable provision for his daughters when they married, and in 1897, shortly before his wife died, conveyed a farm to his son Morris. The plaintiff was born in 1862, and has lived upon the land in controversy since his father acquired title thereto. Patrick O'Connor was a successful breeder of and dealer in live stock. While the testimony is conflicting, it fairly appears therefrom that Charles O'Connor was industrious and a successful farmer, and that he worked upon the home farm, assisted in caring for his father's live stock, cultivated rented farms, and superintended the men hired to assist in the farm work. So far as we are advised, the profits growing out of the sale of the crops and the live stock grown upon these farms were received by Patrick O'Connor. In short, if the testimony correctly portrays the facts, Charles O'Connor, before his father's death, received little other than five horses, his support, and a fairly generous supply of spending money in return for the services rendered by him since he attained his majority in 1883.

Morris O'Connor, the plaintiff's brother, testified in substance that he departed from home to work for himself, but returned in 1884 and remained until 1897, upon his father's promise to purchase the witness a farm if he would work and help pay for it, which was done. Morris also testifies: "He (his father) told me right in front of Charlie, right in front of the barn door, that the home place would be Charlie's; that he had made an agreement that he was to stay on the place and take care of him and my mother, until they were through with the place; when they died the place would be his; and if I stayed home and helped him to pay for another place he would buy one for me." This testimony is clear, direct and certain that the promise was made. No one contradicts the testimony. Possibly no one other than the plaintiff could deny it, but if Morris O'Connor should be believed, the deceased admitted the obligation pleaded in the petition.

The witness Hartnett was called and testified as a witness for both sides of this controversy. Hartnett testifies to a conversation with Patrick O'Connor in 1897, after Mrs. O'Connor's death, as follows: "I asked him (Patrick O'Connor), I says, 'Charlie wanted me to ask you what you was going to do for him,' and he says, 'I will give him this place at my death; I promised Charlie O'Connor's mother on her death bed that this should be his place, and I shall keep my promise, and, in case I do not do it, I want you, John Hartnett, to remember that I have to give it to him.' And Charlie says, 'What will I have to show for that?' He says, 'You have John Hartnett for a witness that I promised you.'" This testimony not only corroborates Morris O'Connor, but leaves the impression that Patrick O'Connor did not propose to reduce his promise to writing, and that his wife for some reason feared he would not fulfil his obligation. Possibly Charles O'Connor was his mother's favorite child; he had performed his part of the contract for 14 years, and his mother's concern lest her husband might repudiate that contract is convincing evidence that it actually was made.

Seven other witnesses testified to Patrick O'Connor's repeated declarations that the plaintiff should have the farm when the declarant died. Many of these statements are testamentary in character, but some of them indicate that O'Connor recognized a contractual obligation on his part to devise or convey the farm to the plaintiff. There are circumstances tending to discredit some of these witnesses, but the witness Hartnett appears to be above reproach. Morris and his sister, Annie Mullin, refused to defend this action; it is contested by the other three sisters and the son John.

Patrick O'Connor died in December, 1905, and five days before dissolution executed a will, which has been duly probated,...