Dieckmann v. Madden

• Decision Date: 26 February 1942
• Docket Number: 37800
• Citation: 160 S.W.2d 724,349 Mo. 312
• Parties: Fred Dieckmann and Frieda Dieckmann v. Thomas R. Madden, Public Administrator, and Administrator of the Estate of Ignatz Zahrada, also known as Fred Zahrada, Fritz Zahrada; and Leopoldine Zahrada Schwarzbauer, Mrs. Anna Pohl, Maria Zahrada, and all the unknown consorts, devisees, donees, alienees, immediate, mesne or remote, or voluntary grantees of Ignatz Zahrada, Appellants
• Court: Missouri Supreme Court

160 S.W.2d 724

349 Mo. 312

Fred Dieckmann and Frieda Dieckmann v. Thomas R. Madden, Public Administrator, and Administrator of the Estate of Ignatz Zahrada, also known as Fred Zahrada, Fritz Zahrada; and Leopoldine Zahrada Schwarzbauer, Mrs. Anna Pohl, Maria Zahrada, and all the unknown consorts, devisees, donees, alienees, immediate, mesne or remote, or voluntary grantees of Ignatz Zahrada, Appellants

No. 37800

Supreme Court of Missouri

February 26, 1942

Rehearing Denied April 16, 1942.

Appeal from Circuit Court of City of St. Louis; Hon. David J Murphy, Judge.

Reversed.

Paul P. Hoegen for Thomas R. Madden, Public Administrator and Detjen & Detjen for Leopoldine Zahrada Schwarzbauer, Mrs. Anna Pohl and Maria Zahrada.

(1) Respondents' evidence did not establish an oral contract whereby decedent was bound to devise the real estate in controversy. (a) To prove such a contract, the evidence must be so unquestionable, clear, cogent and convincing as to leave no reasonable doubt as to its truth. Russell v. Sharp, 192 Mo. 279, 91 S.W. 134; Oliver v. Johnson, 238 Mo. 359, 142 S.W. 274; Rosenwald v. Middlebrook, 188 Mo. 58, 86 S.W. 200; Goodin v. Goodin, 172 Mo. 24, 72 S.W. 502; Anderson v. Collins, 222 S.W. 451; Walker v. Bohannan, 243 Mo. 119, 147 S.W. 1024; Davis v. Hendricks, 99 Mo. 478; McElvain v. McElvain, 171 Mo. 244; Burt v. McKibbin, 188 S.W. 187; Collier v. Porter, 322 Mo. 697; Kidd v. Trust Co., 74 S.W.2d 827; Burnett v. Hudson, 228 S.W. 462; Wales v. Holden, 108 S.W. l. c. 94; Barnett v. Clark, 252 S.W. l. c. 628; St. Louis Union v. Busch, 145 S.W.2d 426. (b) A mere showing of friendliness or testamentary disposition on the part of the deceased will not suffice as proof of the making of a contract to devise. Barnett v. Clark, 252 S.W. 625; Burnett v. Hudson, 228 S.W. 462; Kirk v. Middlebrook, 201 Mo. 245, 100 S.W. 450; Forrister v. Sullivan, 231 Mo. 345, 132 S.W. 722. (2) Respondents' pleadings and evidence are insufficient to support the decree for specific performance for services. To warrant specific performance of an oral contract to devise real estate, the services contemplated and rendered must be of such a character that their value cannot be measured in money; the services rendered must be such as are referable solely to the contract to be enforced; and there must be no doubt that the services called for by the contract were fully and completely performed. Siton v. Shipp, 65 Mo. 297; Gibbs v. Whitwell, 164 Mo. 387, 64 S.W. 110; Selle v. Selle, 88 S.W.2d 877; Benjamin v. Cronin, 93 S.W.2d l. c. 981; Lamb v. Feehan, 276 S.W. 71; Andrews v. Aikens, 44 Idaho 797, 269 P. 423; Stibal v. Nation, 98 S.W. 724.

Max Sigoloff and Herman Goralnik for respondents.

(1) This being an equity suit, this court will give great weight to the findings of the Chancellor and will defer thereto when based on oral testimony, unless the findings are clearly erroneous or unsupported. Stibal v. Nation, 98 S.W.2d 724; Langwell v. Willbanks, 106 S.W.2d 417. (2) Plaintiffs'evidence was not only clear, cogent and convincing, but in view of the substantial testimony adduced by plaintiffs, the decree of specific performance in favor of plaintiffs was the only decree that could have been made under the record evidence, and the decree should be affirmed. Sportsman v. Halstad, 147 S.W.2d 447; Maness v. Graham, 142 S.W.2d 1009; Bick v. Mueller, 142 S.W.2d 1021; Ver Standig v. St. Louis Union Trust Co., 129 S.W.2d 905; Schweizer v. Patent, 116 S.W.2d 39; Berg v. Moreau, 97 S.W. 901.

Bradley, C. Hyde and Dalton, CC., concur.

OPINION

BRADLEY

Action for specific performance of an alleged oral agreement to devise real estate. It is alleged that Ignatz Zahrada, deceased, orally agreed with plaintiffs to devise to them a certain described lot known as 3534 Missouri avenue St. Louis, and listed in the inventory of the Zahrada estate at $ 1730. The trial court found for plaintiffs and the named defendants appealed.

Plaintiffs, husband and wife, alleged that in June, 1938, it was mutually agreed between them and Zahrada that he would convey to them by deed, or devise by will, the lot in question "in consideration of plaintiffs furnishing food and preparing certain meals for him for the rest of his natural life, also in consideration of the plaintiffs, at their own expense, keeping said premises in good repair, the deceased to furnish the necessary materials, and in consideration of the plaintiffs transporting him in their automobile to visit the grave of his wife, and also in consideration of plaintiffs taking him to various places of amusement and to visit with friends of plaintiffs." It is alleged that plaintiffs agreed "to furnish such food and meals and to perform all the obligations under said agreement for the remainder of the natural life" of Zahrada; that pursuant "to said oral agreement they fully performed the aforesaid services, as requested by deceased from time to time, and deceased accepted said services of plaintiffs and the benefits therefrom, which were all done and accepted in reliance upon said agreement made with deceased and fulfillment thereof in devising the aforesaid property to plaintiffs in payment for said services."

It is further alleged that Zahrada "fully intended to carry out said oral agreement with plaintiffs in executing a will whereby and wherein said deceased would have devised unto plaintiffs the aforesaid real estate and improvements, the deceased having directed his attorney to prepare his last will and testament and so provide, but deceased has failed to execute the same prior to his death; . . . that deceased died as a result of being struck by a street car on the 16th day of October, 1939, and died in the City of St. Louis, Missouri, on the 18th day of October, 1939, intestate, and by reason thereof the defendant, Thomas R. Madden, as public administrator of the City of St. Louis, took charge of the deceased's estate, and by reason thereof, was made a party defendant herein."

The answers were, in effect, general denials, except admission that Zahrada, at the time of his death, owned the lot involved. The answer of the next of kin alleged that "defendant Leopoldine Zahrada Schwarzbauer is a sister of the said decedent, Ignatz Zahrada; that the defendants, Anna Pohl and Maria Zahrada, are nieces of said decedent, being children of Franz Zahrada, a predeceased brother of said decedent, and that all of these defendants are next of kin and heirs at law of said decedent, who left surviving him no children or descendants, either natural born or by adoption, nor a widow, and whose father and mother predeceased him."

The court, over objection and exception, permitted plaintiff, Fred Dieckmann, to testify that he lived in the property at 3534 Missouri avenue, the property in question; that he had known Zahrada "since about 1937, when I moved into his property at 3534 Missouri avenue;" that Zahrada then lived on Illinois avenue; that Zahrada's wife died in 1938, and that after her death he continued "to come to our home;" that he saw Zahrada "about every day" and that he saw him "most out at my house."

John L. Wiget, for plaintiffs, testified that he was a gunsmith, but did "locksmithing on the side;" that he had known Zahrada since 1913, made doorlocks and keys for him; that in the summer of 1938, he made some door keys for doors at 3534 Missouri avenue; that Zahrada was there and that he heard plaintiffs and Zahrada talking. "He (Zahrada) told Mr. and Mrs. Dieckmann that if they would give him his breakfast and do him such favors once in a while as take him out in their automobile to certain places where he wanted to go, for instance, out to the cemetery and other places like that, that he would give them that house that they were living in at the present time. Q. And what did they say? A. They said they would do that. In that conversation he told Mr. Dieckmann if there was anything missing or any door locks out of order, or anything like that, why, he should get them repaired. He said he would desire them to give him his breakfast, look after the house and take him with them to the places that he mentioned as long as he lived. Dieckmann said, 'Well, that is perfectly satisfactory,' and that they would do that."

Wiget said that later Zahrada told him that plaintiffs were "very good to him;" did "a great deal for him;" that he "had nobody else that he could depend on;" that he wanted to do all he could for them, and that he wanted "to make over that house (in question) to them in case of his death." Wiget said that subsequent to the conversation he heard between plaintiffs and Zahrada, he repaired some locks and fitted some keys for the property and that plaintiffs "paid for those repairs."

Nellie Harms, for plaintiffs, testified that her daughter had rented from plaintiffs light housekeeping rooms in the property that her daughter got sick and that she (witness) was there about 6 months in 1939, and that Zahrada got his breakfasts at plaintiff's while she was there. "Q. Did Mr. Zahrada ever tell you he was satisfied with the meals prepared by Mrs. Dieckmann? A. Yes. He said he was satisfied because she prepared them in a German style like his wife did, and he was well satisfied. Mr. Zahrada stated in my presence to Mrs. Dieckmann, he said, 'Frieda, you keep the repairs up in this place,' he said, 'and prepare my meals and take me to amusement places the rest of my life,' he said, 'and this home will be left to you.' This conversation took place at a church picnic in 1939. We were sitting and talking, and he talked to the priests and all this and that and all, so he said he was very well pleased with the way they took him around to places where he wanted to go, and he said, 'The property on Missouri...