Forrister v. Sullivan

• Decision Date: 30 November 1910
• Citation: 231 Mo. 345,132 S.W. 722
• Parties: FORRISTER v. SULLIVAN et al.
• Court: Missouri Supreme Court

132 S.W. 722

231 Mo. 345

FORRISTER v. SULLIVAN et al.

Supreme Court of Missouri, Division No. 1.

November 30, 1910.

1. APPEAL AND ERROR (§ 581)—RECORD—ABSTRACT—AMENDED PLEADING.

On appeal in a case where an amended bill had been filed, it is proper to abstract only the amended bill under Supreme Court rule 9 (73 S. W. v), providing that, if any pleading be amended, the clerk, in making out the transcript, will treat the last amended pleading as the only one of that order in the cause, and will refrain from setting out any abandoned pleading, unless made a part of the record by bill of exceptions.

2. APPEAL AND ERROR (§ 518) — PLEADING (§ 420) — RECORD — EVIDENCE — AMENDED PLEADING—WAIVER OF OBJECTION.

By answering an amended bill, defendants waived any departure therein from the original bill as a departure, and where they failed to introduce the original bill as evidence, and preserve it by bill of exceptions, it cannot be considered on appeal.

3. SPECIFIC PERFORMANCE (§ 38)—PAROL CONTRACT TO CONVEY LAND.

Specific performance of a parol contract to convey land is not granted according to the unregulated discretion of the individual chancellor in each particular case, but according to fixed principles of law; and, to warrant the granting of such relief, the conversations relied on as proof of the contract should not be too ancient, loose, or casual, the contract should be fair and just, and the terms thereof so clear and definite as to free it from ambiguity and leave no doubt in certainty of terms or intendment, the proof should show that the contract counted on in the bill was made, performance must be shown as far as practicable and the acts relied on to show such must in their nature be referable alone to the very contract sought to be performed, the contract must be grounded on an adequate and legal consideration, and it must appear clearly to the chancellor that the law could not give adequate relief in damages.

4. SPECIFIC PERFORMANCE (§ 121) — PAROL CONTRACT TO CONVEY LAND—SUFFICIENCY OF EVIDENCE.

Evidence of the existence of an oral contract to convey land held not sufficient to warrant specific performance thereof.

5. WITNESSES (§ 139)—COMPETENCY—TRANSACTION WITH DECEDENT.

Plaintiff, in an action against the heirs of a decedent for specific performance of an alleged parol agreement of decedent to convey plaintiff land, was incompetent to testify to prove either the agreement or the performance of his part thereof.

6. WITNESSES (§ 140)—COMPETENCY—TRANSACTION WITH DECEDENT.

Plaintiff's wife, as a witness, was also incompetent under the statute.

7. EVIDENCE (§ 203)—ADMISSIONS AGAINST INTEREST.

There is no exception to the rule allowing admissions of a party to a suit made against his interest to go in against him, in the absence of an express statute forbidding it, even though the admissions relate to matters as to which he is incompetent to testify.

8. APPEAL AND ERROR (§ 1056)—HARMLESS ERROR—ADMISSION OF EVIDENCE.

Error, if any, of a chancellor in hearing evidence looking to a compromise and excluding it 30 days afterwards, was harmless, where it did not appear that his judgment was affected thereby, especially where, regardless of the evidence, the decree could not have gone for the unsuccessful party on the whole case.

Appeal from Circuit Court, Lawrence County; F. C. Johnston, Judge.

Action by James E. Forrister against Elizabeth Sullivan and others. Judgment for defendants, and plaintiff appeals. Pending appeal the mentioned defendant died, and Susan McKinley, her sole devisee, and John F. McKinley, executor, were made parties in her stead. Affirmed.

McPherson & Hilpirt and E. J. White, for appellant. McNatt & McNatt, for respondents.

LAMM, P. J.

Specific performance—the land (the S. ½ of the N. W. ¼ and the N. W. ¼ of the S. W. ¼, section 15, township 26, R. 25) lying in Lawrence county.

Joseph Sullivan died in March, 1907, full of years, intestate, seised of the land and a considerable estate besides, leaving a widow, Elizabeth, no children, and an only sister, together with the sons, daughters, grandsons and granddaughters of deceased brothers as collateral kin—all made parties defendant. Elizabeth, electing to take half the estate subject to debts, under the statute, presently dies testate pending this appeal, making her foster daughter, Susan McKinley, sole devisee under her will and nominating John F. McKinley, husband of Susan, executor. On suggestion here of the death of Elizabeth Sullivan, said McKinleys are by stipulation made parties, enter their appearance, and the cause stands revived. In 1902 Joseph Sullivan purchased the land from one Stewart. For convenience let it be called the "Stewart farm." There is another tract, often referred to, a mile or so from the Stewart farm. Let it be called the "Neece 80." On Joseph's death, plaintiff set up a claim to the Stewart farm, connecting that claim with a prior claim to the Neece 80, contending that by agreement such prior claim had been transferred to the Stewart farm—the Neece 80 having been sold, he says, by Joseph to one Seaman and the Stewart farm purchased thereafter pursuant to such agreement. Presently plaintiff sues for specific performance. Thereafter he files an amended bill; defendants answering and plaintiff replying to such answer. On a change of venue, the cause was tried by R. H. Davis, Esq., of the Lawrence bar, sitting as special judge. Cast below, plaintiff appeals.

1. Before reaching the merits, there is a preliminary question inviting disposition, viz.: Plaintiff (as was proper, rule 9, q. v., 73 S. W. v) abstracts only the amended bill. Defendants file an additional abstract purporting to bring here the original bill, thereby showing further that they objected to testimony under the amended bill on the grounds (among others) of a departure, in that it made additional and different vital averments not in the first bill, that their objection was overruled, they excepting. Pointing us to that objection, exception, and to the original bill so abstracted by them, they seek, arguendo, to have us compare the original with the amended bill in order to show that the contract to be specifically performed, pleaded in the one, differs in material particulars from that in the other. On such premise they press upon us the contention that plaintiff "had no certain or definite contract that he knew of himself," and, after consulting with his witnesses, amended his pleading to conform to their testimony. The point lacks substance. Because, by answering over to the amended bill they waived the departure, as a departure. Walker v. Railroad, 193 Mo., loc. cit. 472, 92 S. W. 83; Liese v. Meyer, 143 Mo. 547, 45 S. W. 282. They had a last shot left in their locker on that score, viz., the right to introduce the abandoned bill as evidence, as an admission by plaintiff against his interest. Meriwether v. Knapp & Co., 224 Mo., loc. cit. 627, 123 S. W. 1100, and cases cited; Anderson v. McPike, 86 Mo. 293; Schad v. Sharp, 95 Mo. 573, 8 S. W. 549. But they did not use it by putting it in evidence. It nowhere appears in the bill of exceptions as an evidentiary fact, where alone it could be so preserved for appellate use. Dead as a pleading, it could spring to life as evidence in no other way. Missouri Pacific Railway Co. v. Bank, 212 Mo., loc. cit. 517, 111 S. W. 574; rule 9 (73 S. W. v) supra. Therefore we may not consider it on the merits of the case.

2. The contract and the grounds upon which it is sought to be enforced are set forth in the amended bill to be that for many years plaintiff had been living upon tracts of land belonging to Joseph Sullivan, and for that period (quoting) "had rendered various and valuable services to said deceased, in the way of clearing and improving said different tracts of land, for said deceased, in selling and disposing of the different kinds of products raised on said tracts of land, and caring for and rendering other personal services to said deceased, and the plaintiff has never been paid any sum whatever for any of such services so performed for said deceased; that all such services were rendered under and in pursuance of a verbal contract and promise on the part of said deceased Joseph Sullivan that he would convey the legal title to the tract of land on which he then resided to the plaintiff, before the death of him, the said Jos. Sullivan."

Referring to the Neece 80, its sale, the purchase of the Stewart farm, and the alleged contract pertaining to both, the bill states that plaintiff resided on and improved the Neece 80, and that (quoting) "the sole consideration for all such services so rendered to said deceased was the repeated promise on the part of said deceased that he would see to it that the plaintiff was made the legal owner of said 80-acre tract of land; that instead of deeding said 80-acre tract of land to the plaintiff, as said deceased repeatedly agreed to do, in payment for all said services so rendered him by the plaintiff, during the year 190_, said deceased, with the consent of plaintiff, sold and conveyed said 80-acre tract of land on which the plaintiff then resided, and, in lieu thereof, purchased the above described 120-acre tract of land, the said deceased Jos. Sullivan then and there promised and agreed, in consideration of all said services so rendered by the plaintiff and those to be rendered by the plaintiff, to deed or cause to be deeded or conveyed to the plaintiff."

It is next alleged that at an unnamed date Joseph Sullivan put plaintiff in exclusive possession of the Stewart farm, and "then and there agreed and promised" that, if plaintiff "would live upon and improve said 120-acre tract of land and continue to render such personal and other services to the said deceased, Jos. Sullivan, that he would convey the legal title to said 120-acre tract of land to the plaintiff before the death of him, the said Jos. Sullivan."

It is next alleged...