Downing v. Maag

• Decision Date: 02 July 1943
• Docket Number: No. 33452.,33452.
• Citation: 10 N.W.2d 778,215 Minn. 506
• Parties: DOWNING v. MAAG et al.
• Court: Minnesota Supreme Court

10 N.W.2d 778

215 Minn. 506

DOWNING v. MAAG et al.

No. 33452.

Supreme Court of Minnesota.

July 2, 1943.

Rehearing Denied July 30, 1943.

Appeal from District Court, Hennepin County; W. W. Bardwell, Judge.

Action by Eva M. Downing against Ward F. Senn, administrator with the will annexed of the estate of Harry Moore, deceased, and others for specific performance of an alleged oral contract whereby decedent agreed to devise his estate to plaintiff. H. E. Maag, administrator de bonis non with the will annexed of the estate of Harry Moore, deceased, was substituted as respondent in place of Ward F. Senn, administrator, etc. The trial court refused to grant specific performance and from an order denying her motion for a new trial, plaintiff appeals.

Order reversed and cause remanded with directions to enter judgment for plaintiff.

Strong & Strong and Paul J. Thompson, all of Minneapolis, for appellant.

H. E. Maag, R. H. Fryberger, and Fred W. Putnam, all of Minneapolis, for respondents.

LORING, Justice.

This is an action against the administrator of the estate and the heirs of Harry Moore, deceased, for specific performance of an alleged oral contract whereby Moore agreed to devise his estate to plaintiff. The trial court refused to grant specific performance on the ground that plaintiff had not sustained the burden of proof in establishing such a contract, and on the further ground that she had an adequate remedy at law. Plaintiff appeals from an order denying her motion for a new trial.

Plaintiff and Harry Moore became acquainted in 1899. At that time plaintiff was married to a Dr. Hunt from whom she was subsequently divorced. One daughter, Marguerite Downing, was born of this marriage. Moore was then employed as deputy clerk in the municipal court of Minneapolis. He was admitted to the bar in 1892 but never practiced law. Apparently, Moore and plaintiff were "keeping company" as he gave her presents, including a ring which she has worn ever since. Moore was unemployed from 1904 to 1909. During that time they saw each other regularly. Plaintiff was a dramatic entertainer and in 1907 made a trip to Europe in connection with her work. Before going on this trip, she made arrangements for Moore to occupy her room, paid part of the rent in advance, and gave him money to assist him until he could secure employment. While in Europe, plaintiff wrote a number of letters to Moore which were found in his room after his death. When Moore again secured employment in 1909, plaintiff bought clothes for him so that he would be presentable for work. From that time on, the relationship between these two people was very close. Moore roomed only a short distance away from plaintiff. He regularly ate his evening meal at her residence and spent a great deal of time there in plaintiff's company.

1. As we view the record, the evidence is conclusive against the findings of the trial court. The contract to make a will is alleged to have been made in June, 1918. At that time plaintiff was planning to go to France in her capacity as a dramatic entertainer. Moore earnestly opposed her going, as he apparently feared that she might meet some one else and "if he lost her he lost everything." Concerning Moore's reaction to plaintiff's proposed trip to France the witness Lewis, who was present at a conference between plaintiff and Moore, testified that at that conference: "He said her future was his responsibility, and he wanted her to promise not to go; and if she would promise not to go, he said he would will everything he had to her." (Italics supplied.) Marguerite Downing, plaintiff's daughter, testified that plaintiff considered the opportunity to go to France might be a "stepping-stone" to a career but that Moore was opposed to it, that he "had plans for her future" and that "what he had he considered hers." The same witness testified that in 1934 Moore stated in a conversation that "Eva's [plaintiff's] future was taken care of in case she survived him." The witness White testified that in 1936 she had a conversation with Moore concerning his insurance, pension, and savings and that he said that "anything that might be left after was for Eva"; and after discussing the price of some stock that he owned, Moore said, "That has held up pretty well, I hope it continues to, because that along with my savings and investments are for Eva." (Italics supplied.) The witness Riemann, who was an employe of the Municipal Employees' Retirement Association of which Moore was a member, testified that in 1934 she talked with him about his retirement plan, that she told him there was a plan, other than the one he had selected, whereby he could take a smaller pension and provide a lump-sum payment "to an interested party," and that Moore said "You are thinking of Miss Downing, aren't you?" and, "Well, this plan will pay me the most, if I understand it, and that will give me working funds, and my savings and investments will adequately take care of Miss Downing, in case." (Italics supplied.) This witness further testified: "He said to me that he felt satisfied that he had taken the wisest plan because he said, `I have moneys and bonds that will take care of—' he always called her Miss Downing. He said, `If she is careful, it will see her through all right.'". A. Mrs. Elwood testified to the same effect.

These witnesses are unimpeached, and their testimony is uncontradicted. In such a case, the rule in this state is clearly stated in O'Leary v. Wangensteen, 175 Minn. 368, 370, 221 N.W. 430, 431: "The rule is well established in this state that the court or jury cannot disregard the positive testimony of an unimpeached witness unless and until its improbability or inconsistency furnishes a reasonable ground for so doing, and this improbability or inconsistency must appear from the facts and circumstances disclosed by the record in the case. It cannot be arbitrarily disregarded by either court or jury, for reasons resting wholly in their own minds, and not based upon anything appearing on the trial."

The O'Leary case fully reviews the law on the question, and this court has consistently reaffirmed it. See Manley v. Harvey Lbr. Co., 175 Minn. 489, 221 N.W. 913; Koppe v. Hilton & Thompson, 176 Minn. 508, 223 N.W. 787; Bank of Howard Lake v. Veigel, 177 Minn. 187, 224 N.W. 841; Woll v. Hensel, 180 Minn. 353, 230 N. W. 813; First Nat. Bank v. Van de Putte, 187 Minn. 96, 244 N.W. 416; Williams v. Jungbauer, 191 Minn. 16, 252 N.W. 658; Althoff v. Boland, 195 Minn. 541, 263 N.W. 797; Ewer v. Coppe, 199 Minn. 78, 271 N.W. 101.

In Wold v. Wold, 138 Minn. 409, 165 N.W. 229, the question of uncontradicted, unimpeached, and credible testimony was not presented. The trial court had accepted the unsupported testimony of plaintiff's sister to the contract to make a will. The comment made by this court with reference to her testimony is not a holding that her testimony might be rejected. We held that the evidence was sufficient to support the finding. No other question was involved. Moreover, Wold v. Wold was decided 11 years before O'Leary v. Wangensteen, 175 Minn. 368, 221 N.W. 430, supra.

Maher v. Duluth Yellow Cab Co., 172 Minn. 439, 215 N.W. 678, was also decided before O'Leary v. Wangensteen and did not involve the question here presented. In that case, the question before the court was whether or not circumstantial evidence supported a finding. Dege v. Produce Exchange Bank, 212 Minn. 44, 2 N.W.2d 423, was a case where oral testimony was not contradicted by direct testimony but documentary evidence was introduced from which the jury might have reasonably drawn a conclusion opposite to the direct testimony. It was there specifically held that the rule of O'Leary v. Wangensteen did not apply. In Erickson v. Erickson & Co., 212 Minn. 119, 125, 2 N.W.2d 824, the testimony rejected by the Industrial Commission was impeached by the witness' prior statements and by inconsistency in his testimony. In Weinstein v. Schwartz, 204 Minn. 189, 283 N.W. 127, though the defendant's testimony was without extraneous contradiction, it was held that it fell outside the rule of O'Leary v. Wangensteen because the jury might reasonably have attributed defendant's obvious willingness to be worsted to a desire that his mother-in-law, plaintiff, collect damages from his insurer.

2. The fact that the witnesses were acquainted with or related to the plaintiff does not in any way impeach them or permit the trier of fact to disregard their testimony if they are otherwise unimpeached and the testimony is uncontradicted and not improbable or inconsistent. O'Leary v. Wangensteen, supra; Olsen v. Hoffman, 175 Minn. 287, 221 N.W. 10.

3. In the case at bar, since plaintiff's witnesses are uncontradicted and unimpeached, the only question is whether their testimony, from the facts in the record, is improbable or inconsistent. We cannot escape the conclusion that it is neither. The record disclosed that Moore was an unusual character. He was taciturn and reticent. His fellow employes knew little about him. He seldom spoke of his private life. For over 30 years he worked in the same office, hardly speaking to his fellow employes. Aside from lodge meetings, his only social life was at plaintiff's home, where he regularly ate his supper and spent the evening reading. He had no friends of his own and was completely dissociated from his relatives. Each morning before going to work he called plaintiff by telephone from a cigar store where he regularly bought his morning cigars. When he was out of work plaintiff bought him clothes and gave him money. At one time he had given her an engagement ring. The testimony that he promised to make a will leaving his earthly possessions to the one person with whom he was intimately acquainted and with whom he was closely associated for 42 years is wholly probable and entirely consistent. The trial court could not have reached the conclusion it did without...