Ehmke v. Hill

Decision Date15 February 1952
Docket NumberNo. 35652,35652
Citation236 Minn. 60,51 N.W.2d 811
PartiesEHMKE v. HILL et al.
CourtMinnesota Supreme Court

Syllabus by the Court.

1. Pursuant to a fair and reasonable construction of the dead man's statute, M.S.A. § 595.04, to accomplish its entire purpose as intended by the legislature, any person, whether he be a party to the action or not, and even though he has some pecuniary, legal, certain, and immediate interest in the event of the action with respect to the issue to which his testimony relates, is competent to testify When his testimony is adverse to his own interest.

2. Since Shaughnessy v. Eidsmo, 222 Minn. 141, 23 N.W.2d 362, 166 A.L.R. 435, an oral contract for the transfer of an interest in land, whether by conveyance or by will, may be removed from the purview of the statute of frauds on either the unequivocal reference theory or on the fraud theory of part performance.

3. To warrant specific performance of an oral contract to give real property by will, the contract (a) must be established by clear, positive, and convincing evidence; (b) it must have been made for an adequate consideration and upon terms which are otherwise fair and reasonable; (c) it must have been induced without sharp practice, misrepresentation, or mistake; (d) its enforcement must not cause unreasonable or disproportionate hardship or loss to the defendants or to third persons; and (e) it must have been performed in such a manner and by the rendering of services of such a nature or under such circumstances that the beneficiary cannot be properly compensated in damages. Bang & Nierengarten, Austin, for appellants.

Baudler & Baudler, Austin, for respondent.

MATSON, Justice.

Appeal by defendants other than Margrate and John Ehmke from an order denying defendants' motion for a new trial in an action for specific performance of an oral contract to convey land.

Decedent, Theodore W. F. Ehmke, plaintiff's uncle, died intestate on February 6, 1950, as the record owner of the 120-acre farm involved herein. Defendant Howard Hill is the administrator of his estate. The other defendants are decedent's only heirs at law. Plaintiff--born in 1910--is the illegitimate son of Theodore's sister Johanna, who predeceased him.

Decedent never married and was childless. Plaintiff's mother kept house for him. Until 1915, or for the first five years of his life, plaintiff and his mother lived with decedent on rented farms. Thereafter the three of them moved to a 162-acre farm which had been owned by decedent's father and was known as the old home place. Defendants John and Margrate Ehmke also lived thereon. After quitting school in 1927 at the age of 17 years, plaintiff spent the next five and one-half years, or until 1933, on the old home farm working as a farm hand for his uncle, the decedent. He received no compensation for this work. In the winter of 1933, plaintiff decided to give up farm work and acquire a repair shop and garage in the village of Waltham which could be bought for $3,000. Decedent, as compensation for plaintiff's five and one-half years of labor, agreed to buy the repair and garage business for him. Upon further investigation, plaintiff concluded that it was then inadvisable to enter upon this new venture. As a result, he still stood uncompensated for his work.

In lieu of the garage and repair-shop business, decedent suggested that plaintiff take possession of a 120-acre farm which the former had acquired through a mortgage foreclosure. Through many years of rental exploitation and neglect, the soil of this farm had become unproductive and was so littered with rocks as to make cultivation difficult. Its few buildings and fences were dilapidated and unfit for normal use. By reason of its run-down condition, the farm was difficult to rent. In the late winter of 1933, plaintiff, pursuant to an oral contract with decedent, took possession of the farm. It was orally agreed that he should operate the farm during decedent's lifetime, and that during such period he should, in addition, maintain the close personal relationship which had theretofore existed between him and decedent and assist the latter as before with his business affairs and personal errands. In consideration thereof, decedent agreed that upon his death the farm should be left to plaintiff. As part of this arrangement--which is corroborated by the conduct of the parties--it was agreed that in the operation of the farm the parties should each supply one-half the seed and the commercial fertilizer and each should receive one-half the grain raised. Plaintiff was to pay cash rent for the fodder, hay, and pasture land.

Under the above agreement, plaintiff occupied and operated the farm until his uncle died in 1950. In the course of his occupancy, plaintiff converted the place from an unproductive acreage into a profitable farm that was above the average in Mower county. He cleared the land of rocks and built up the soil by fertilization and by the plowing under of certain crops. With certain contributions of financial and physical aid from decedent, he constructed new buildings, moved, altered, and repaired old buildings, and otherwise gave freely of his time and assets in rehabilitating the farm.

Over and beyond his work on the 120 acres, plaintiff gave freely of his personal life and time to decedent as if he were the latter's son. He continued the close personal relationship and mutual affection which had begun with his boyhood days and which ripened with the years until his uncle, when at last faced with the imminence of death as he entered the hospital, gave instructions that of all his relations and friends plaintiff alone should be notified if he took a turn for the worse. When a blood transfusion was necessary, plaintiff was on hand to supply the need. The final hour was preceded by many years of devoted personal service. Although plaintiff lived with his wife on the 120-acre farm and decedent stayed on the old home place, the two spent much of their time in close association. When the uncle desired to visit neighboring towns for business or otherwise, plaintiff accompanied him and drove the car. On visitations to friends and relatives, as well as on fishing trips and in going to church, it was plaintiff who did the driving and provided decedent with companionship. He wrote decedent's letters. If decedent's car or decedent's farm machinery on the old home place needed repairs, it was plaintiff who gave up his own activities to do the work. Although decedent from time to time gave plaintiff some assistance on the 120-acre farm, it should be noted that this was more than offset by plaintiff's labor on the old home place, where he helped shock grain, put up hay, repair and build fences, and do the plowing with his tractor. In fact, when decedent in the early spring of 1936 broke his shoulder, plaintiff put in the crop for decedent on the latter's 80-acre portion of the old home place, and at his own cost furnished a farm hand. All this latter work he furnished and performed without compensation. In fact, plaintiff gave so much of his personal time to decedent that he sacrificed to a material degree a normal family life, with the result that his wife found herself neglected. Furthermore, plaintiff on two different occasions sacrificed the chance to better his lot in life when, by reason of his obligations to decedent under the oral contract, he gave up the opportunity to make advantageous purchases of nearby farms.

Decedent died without fulfilling his part of the agreement by devising or otherwise conveying the 120-acre farm to plaintiff. Plaintiff is not one of his heirs at law.

We have, as any court of review must, stated the facts in the light most favorable to the trial court's findings. As usual, there was a sharp conflict in the evidence on many factual phases. Upon review, however, the question is not whether the evidence would reasonably sustain findings contrary to those made by the trial court, But whether its findings as made are reasonably sustained in the light of the evidence as a whole. Here, the existence of the oral contract was testified to in a clear, positive, and convincing manner by decedent's sister, Margrate Ehmke, one of the defendants, who, although a party to the action and interested in the event thereof, was permitted to testify as to a conversation which was held in her presence between decedent and plaintiff in 1933, when plaintiff had decided not to buy the garage and repair shop at Waltham. She testified that decedent then said that if plaintiff stayed with him, tended to and helped him, and built up the 120-acre farm it was to be his when decedent died. She also testified as to other corroborative conversations. There is also corroborative testimony by another defendant, decedent's brother, John Ehmke. A wholly disinterested party, Leonard Fossum, testified that decedent had told him in specific terms that he had made an Agreement that plaintiff was to have the farm upon his death. This testimony is further corroborated by the surrounding circumstances and the actual conduct of the parties. It follows that the trial court's findings are not merely sustained, but the oral contract involved is established by clear, positive, and convincing evidence which leaves no uncertainty as to its terms. See, McCarty v. Nelson, 233 Minn. 362, 47 N.W.2d 595.

In holding that the findings are sustained, we have not overlooked the fact that they are based to a very material degree on testimony given by two of the defendants, Margrate and John Ehmke. Appellants contend that under M.S.A. § 595.04 their testimony was incompetent and inadmissible as a conversation with a deceased person. In addition to the question of the competency of their testimony, an issue has been raised as to whether there was sufficient part performance with unequivocal reference to the oral contract and of a nature which entitles plaintiff to...

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