Feigenspan v. Pence

• Decision Date: 02 March 1943
• Docket Number: 38257
• Parties: Gladys Feigenspan, Respondent, v. William Pence, Albert Pence, H. W. Pence, Carl Pence, Clyde Pence, S.W. Pence, Susan Hudson, Mollie VanOsdol, Eva Lena Symmonds, Estelle Crozier, J. C. Rice, Opal Frizzell, John W. Rice and Velma A. Woerner, Appellants
• Court: Missouri Supreme Court

168 S.W.2d 1074

350 Mo. 821

Gladys Feigenspan, Respondent, v. William Pence, Albert Pence, H. W. Pence, Carl Pence, Clyde Pence, S.W. Pence, Susan Hudson, Mollie VanOsdol, Eva Lena Symmonds, Estelle Crozier, J. C. Rice, Opal Frizzell, John W. Rice and Velma A. Woerner, Appellants

No. 38257

Supreme Court of Missouri

March 2, 1943

Appeal from Lewis Circuit Court; Hon. Noah W. Simpson Judge.

Reversed and remanded (with directions).

Morris E. Osburn for appellants.

(1) The evidence in this case does not measure up to the exacting standards raised by the law to enforce oral contract for the sale of real estate despite the Statute of Frauds. (a) The alleged oral contract must be proved as pleaded. Sportsman v. Halstead, 147 S.W.2d 447; Ver Standig v. St. Louis Union Trust Co., 129 S.W.2d 905; Selle v. Selle, 88 S.W.2d 877; Walker v Bohannan, 147 S.W. 1024. (b) The alleged oral contract must be fair and conscionable. It must be based upon an adequate and legal consideration, so that its performance upon the one hand, but not upon the other, would bespeak an unconscionable advantage and wrong, demanding in good conscience relief in equity. Walker v. Bohannan, 147 S.W. 1024; Selle v. Selle, 88 S.W. 877; Stibal v. Nation, 98 S.W.2d 724; Sportsman v Halstead, 147 S.W.2d 447. (c) The work constituting performance must be such as is referable solely to the contract sought to be enforced. Selle v. Selle, 88 S.W.2d 877; Stibal v. Nation, 98 S.W.2d 724. (d) Proof of mere disposition to devise by will or convey by deed by way of gift, or as a reward for services is not sufficient. Selle v. Selle, 88 S.W.2d 877; Stibal v. Nation, 98 S.W.2d 724; Herman v. Madden, Public Admr., 162 S.W.2d 268. (e) Specific performance of an oral contract to convey real estate will be granted only where the very justice of the thing calls for it. Sportsman v. Halstead, 147 S.W.2d 447; Selle v. Selle, 88 S.W.2d 877. (f) It should be made clear to the chancellor that the law could not give adequate relief in damages, necessitating interference of equity. Dieckmann v. Madden, Public Admr., 160 S.W.2d 724; Herman v. Madden, Public Admr., 162 S.W.2d 268. (2) The petition does not state facts sufficient to constitute a cause of action because it is not alleged therein who, if anyone, owned the real estate described. Heron v. Peisch, 144 S.W. 413; Lackawanna Coal & Iron Co. v. Long, 133 S.W. 35. (3) By answering over after demurrer was overruled, defendant did not waive failure of petition to state cause of action. Sec. 926, R. S. 1939; Baugler v. Gamble Const. Co., 26 S.W.2d 946; Lee v. St. Louis Public Serv. Co., 88 S.W.2d 337. (4) The court erred in permitting plaintiff's witness, Yetta Feigenspan, over timely objection by the defendants that her said testimony was outside the pleadings, to testify that Jacob Pence and Amelia Pence owned the real estate described in plaintiff's petition jointly. Since this testimony was admitted into evidence by the court, it was error, and the petition will not be considered as amended to conform to the evidence. Lee v. St. Louis Public Serv. Co., 88 S.W.2d 337. (5) A petition which wholly fails to state a fact essential to constitute a cause of action cannot be amended on appeal to supply such fact. O'Toole v. Loewenstein, 160 S.W. 1016; St. Louis v. G. H. Wright Contracting Co., 109 S.W. 6.

Walter M. Hilbert and H. S. Rouse for respondent.

(1) Oral contract is taken out of the Statute of Frauds, where full performance is made by one of the contracting parties. Merrill v. Thompson, 252 Mo. 714; Carney v. Carney, 95 Mo. 353; Berg, executor v. Moreau, 199 Mo. 416; Bick v. Mueller, 346 Mo. 746; Dieckmann v. Madden, Public Administrator, 160 S.W. 724; Fine v. Barnes, 340 Mo. 445. (2) Where the character of the services to be performed under the contract is such that the value thereof cannot be easily ascertained in money, specific performance will lie. Fine v. Barnes, 340 Mo. 445; Bick v. Mueller, 346 Mo. 746. (3) In a suit in equity the Supreme Court may make its own findings. But where the evidence is oral, as here and the chancellor had the witness before him, with opportunity to see and hear them, and judge as to their credibility, the Supreme Court will defer somewhat as to the findings of the chancellor. Bick v. Mueller, 346 Mo. 746; Vining v. Ramage, 319 Mo. 65.

OPINION

Clark, J.

Suit for specific performance of an oral agreement to convey real estate in consideration of the performance of personal services. The decree was for plaintiff divesting title from defendants and vesting fee simple title in plaintiff. Defendants appeal.

The pleadings The petition alleged that on the day of , 1938, J. C. Pence and his wife, Amelia Pence, who was an aunt of this plaintiff, "entered into a contract and agreement with plaintiff, that if she would nurse and care for Amelia Pence during her lifetime, and J. C. Pence during his lifetime whenever called upon to render such service that the survivor of the said J. C. Pence and Amelia Pence would convey to this plaintiff the real estate hereinafter described," the real estate described being a 10 acre tract and a one-half interest in a 220 acre tract. The petition further alleged that Amelia Pence died on the day of August, 1939; that J. C. Pence died intestate January 28, 1940, leaving defendants as his only heirs; that plaintiff fully performed the contract on her part; that, after the death of Amelia Pence, in August, 1939, J. C. Pence executed and acknowledged warranty deeds conveying the described real estate to plaintiff, but failed to deliver the deeds; That plaintiff has no adequate remedy at law, etc.

Defendants filed a demurrer on the ground that the petition failed to state a cause of action, which demurrer was overruled. Defendants then filed answer admitting the deaths of J. C. Pence and Amelia Pence; that defendants are the only heirs of J. C. Pence and denying all other allegations of the petition. Then the answer set up that if plaintiff "ever rendered any services for J. C. Pence or Amelia Pence after the date of the alleged contract such services covered a short period of time, and the value thereof, if they were not rendered gratuitously, can easily be determined in dollars and cents, and adequate relief given at law, and that it would be unconscionable to enforce said alleged contract."

The evidence Plaintiff's evidence was that J. C. Pence was the second husband of Amelia. They lived at Steffenville, Missouri. They had no children. She was 72 years old at her death in 1939 and he was 64 when he died in 1940. Plaintiff lived with her parents at Lewiston, about 12 miles from the Pence home.

Defendants' counsel made timely objection to any evidence tending to prove an oral agreement because in violation of the Statute of Frauds.

Yetta Feigenspan (mother of plaintiff and sister of Amelia Pence), testified to a conversation at the Pence home in June, 1938, at which were present: the witness, Gladys Feigenspan (the plaintiff), Alta Doscher and her husband, Arthur Doscher, (Alta being a daughter of the witness and sister of plaintiff), and Mr. and Mrs. Pence; that "Mr. Pence said he would like to have a contract and agreement with the girls, Alta and Gladys, that they would nurse and care for Amelia during lifetime, whenever they was called on, . . . and take care of him, nurse him and care for him through his lifetime, whenever they were called upon . . . he would deed Gladys the home place where they lived (10 acres) and give Alta and Gladys the Wolters place; (220 acres); that Mrs. Pence agreed to that and the girls also said they would." This witness further testified that two or three days after the death of Mrs. Pence, J. C. Pence said the girls (plaintiff and her sister) "had always did for them," (Mr. and Mrs. Pence), that he didn't see how they could have got along without them and they had taken lots of responsibility off of Amelia. Witness said that in December, 1939, J. C. Pence, while visiting in her home, said "they come up and did everything they agreed to do, now I am going to do for them, -- I made two deeds to Gladys and one to Alta -- these deeds will be turned right over to them. They won't have no trouble at all." On cross-examination, this witness said: that at the time of the conversation in June, 1938, plaintiff was living with her parents; that on August 22, 1938, plaintiff entered a business college in Illinois and continued as a student until November 10, 1939; that shortly thereafter she procured employment at Macon, Missouri, and continued in that employment until after the death of Mr. Pence; that Mr. Pence desired her to go to school; that she was not at the Pence home either when Mrs. Pence died or when Mr. Pence died; that she came there shortly after the death of Mrs. Pence and stayed three days; that while attending school and while employed at Macon she would frequently come home on week-ends and would often visit the Pence home; that after the date of the alleged contract with plaintiff, Mr. Pence kept a nurse employed at his home much of the time and also during practically all of the time kept a woman employed to do the housework; that most of the services rendered by plaintiff were rendered prior to the date of the contract; that she didn't do much after that because they didn't call on her; that when she was at the Pence home plaintiff would help "care" for Mr. or Mrs. Pence "like anyone would do," but the witness did not specify any particular service performed by plaintiff.

Over the objection of defendants' counsel that it was outside the pleadings, and after plaintiff's counsel had stated he expected to prove that most of the Pence property was held by a joint title, Mrs. Feigenspan was permitted to testify that Mr....