Glauert v. Huning

• Decision Date: 08 March 1954
• Docket Number: No. 1,No. 43477,43477,1
• Citation: 266 S.W.2d 653
• Parties: GLAUERT v. HUNING et al
• Court: Missouri Supreme Court

Page 653

266 S.W.2d 653

GLAUERT v. HUNING et al.

No. 43477.

Supreme Court of Missouri, Division No. 1.

March 8, 1954.

Motion for Rehearing or to Transfer to Court en Banc Denied

April 12, 1954.

Cox, Cox & Cox, William A. Moffitt, Jr., John A. Arnold, Finley & Lucas, Ralph T. Finley, St. Louis, for appellant.

John A. Nolan, Carl V. Eimbeck, Clayton, for respondents.

COIL, Commissioner.

Plaintiff-appellant sought relief in the nature of specific performance of an oral contract to devise or convey real estate, and an accounting for rents and profits; or, in the alternative, a money judgment for services rendered. The trial court denied relief. Plaintiff appealed and initially contends that under the evidence adduced he was entitled to specific performance.

Plaintiff was the nephew of William H. and Ida K. Warmann, husband and wife, who died October 18, 1942, and December 31, 1950, respectively. Defendants-respondents, except the Hunings and William Boeckhaus, were sisters of, and are legatees in the will of, Ida K. Warmann. Huning is the executor of the estate of, a nephew of, and a legatee of, Ida K. Warmann, and is a defendant in both his individual and representative capacities. Nellie Huning is Ernst's wife and William Boeckhaus is the husband of one of the sisters. We shall refer to the parties as they were designated in the trial court.

Plaintiff's petition was unnecessarily complicated by the inclusion of evidentiary matters but, stripped of such, and of other unessential verbiage, it averred in effect: that some 30 or more years ago plaintiff began rendering services to the Warmanns under the general understanding among the parties that he (plaintiff) would be fully compensated for his services by some financial reward at the death of the survivor of Mr. and Mrs. Warmann; that by 1942 the general understanding had been made definite and certain and was this: that in consideration of past services rendered and plaintiff's promise to continue to render to the Warmanns and the survivor of them such services as they or either of them might request, they agreed that at the death of the survivor plaintiff would receive two parcels of real estate, viz., a certain farm in Warren County (sometimes referred to as the farm) and certain improved real estate on Kingsland Avenue in St. Louis County (sometimes referred to as the Kingsland property); that plaintiff fully performed but that Ida K. Warmann failed to perform.

The title to the Kingsland (acquired about 1937) and farm (acquired in 1941) properties were held by the Warmanns in estates by the entirety. William Warmann's will, after directions as to payment of debts and nine bequests of $1 each, gave his wife $10,000 and a life estate in the residue of his estate with unrestricted power of alienation except as to the two instant properties which he devised in fee to plaintiff at Mrs. Warmann's death. He disposed of any residue remaining at Mrs. Warmann's death. There was some real estate (unidentified in the evidence) which Mr. Warmann owned individually which formed part of his estate disposed of by his will. Plaintiff was named as and acted as executor. The estate was administered and closed.

Mrs. Warmann's will (executed on April 22, 1943) and codicil (executed on April 11, 1947), after bequests of personal belongings and $100, directed that the residue of her estate be sold and that the proceeds be divided equally among the five individual defendants. Mrs. Warmann's estate remains open, the two involved properties are on hand and have a combined value of at least $30,000.

It is necessary to summarize the pertinent testimony of plaintiff's thirteen, and of defendants' five, witnesses.

Theodore Glauert, plaintiff's brother, a bricklayer and builder, testified: that Mr. Warmann acquired a brickyard in which witness worked part time until he was 21 when he began to learn the bricklaying trade; thereafter he worked for his uncle, Mr. Warmann, until 1917 and then, after leaving the army in 1919, became a journeyman bricklayer; plaintiff (usually referred to below and herein as 'Gus') began to learn the bricklaying trade even before witness; Gus also worked for his Uncle Will (Mr. Warmann); during a period prior to 1921, when both plaintiff and witness were working for him, Mr. Warmann was 'practically broke' and he told the witness and Gus, 'I can't pay you what you are worth, but if you will stay and work with me now, Ida and I have no children, later on you will get more than you will this way. You will get it later because I appreciate the way you and Gus are helping me out'; Gus worked for Mr. Warmann in the old brickyard, while a new brickyard was being built, and worked in the new brickyard until it was sold about 1924; during that period Mr. Warmann paid Gus only 40cents an hour 'because he would give it to Gus later, and Gus agreed to stay with him'; the union wage at that time was $12 a day and after the new brickyard was sold, bricklayers' wages were increased.

After the brickyard was sold, and until about 1939, Gus worked for other contractors at various times when Mr. Warmann did not need him. A few months after selling the brickyard, Mr. Warmann built a home and both witness and Gus worked as bricklayers, the witness receiving $6.00 a day and Gus receiving 40cents an hour; thereafter Mr. Warmann began a subdivision in which he built and sold about 14 houses, building two or three at a time; the witness worked intermittently on these houses and Gus worked continuously on them between about 1925 and 1929; witness did not personally know what Gus' wages were during that period; thereafter Mr. Warmann purchased 'a lot of old property' and he (Mr. Warmann) and Gus repaired and improved it; in the meantime, witness had become a contractor and sometimes during 1936 and 1937 Gus worked for him, witness paying Gus $12 a day; during that period Mr. Warmann would call witness and want him to release Gus; once Mr. Warmann called witness and said, "I need Gus * * * Listen, don't you worry about what Gus is making. Gus will have more than any of his brothers, and it isn't only that, I know I can hire plenty of help for thirty cents an hour but' he says, 'I need Gus, it is good for me to have Gus around me' and he says, 'I want Gus"; witness released Gus about a week after the call and worked out this arrangement, suggested by Mr. Warmann: 'We will do it this way. Whenever Gus is working for me he will work for me until I let him off, then if you hire him in the meantime and he is working for you, I will wait until you let him off, then I will appreciate if I can have him if you can spare him'; thereafter Mr. Warmann and Gus built a clubhouse at Foley, Missouri, about 1937 or 1938; in 1941, 'Uncle Will told me Foley was no good, he had sold it and was going to buy a big farm with a good spring, build a seven or eight-acre lake, he and Gus were looking for places, that he was going to buy this for Gus, that he had not paid Gus, this was going to be Gus's farm after he and Aunt Ida were not here any more.' Later, Mr. Warmann said: 'We bought a farm for Gus and Gus and I are going to build a lake.' Once in the spring of 1941, '* * * he told me he and Gus were going to buy tractors and build a lake themselves. * * * He said, 'It will be Gus's farm; you will--all the rest of you will have a place to fish,' and Ida was present at the time and nodded approval * * *.' And again in 1941: 'Another time he came out they had been working out there a month or so and he came and asked would I help on the lake. I told him, no, I couldn't hardly do it. He says, 'I will pay you $10.00 a day; I am paying Gus $4.00 a day,' but I explained I could not afford to do it, * * *.' Mr. Warmann told witness 'how he appreciated having Gus, he says, 'Gus will do anything I tell him and will come at any time I want him,' and he mentioned he--'for Gus being so faithful and good to me, I am going to take good care of Gus so that he will have nothing to worry about.''

Referring to the Kingsland property, witness said: 'On that same property he [Mr. Warmann] built a little brick store building and I saw Gus lay brick there and I also saw Gus work on a basement that they built on that same property to move the house * * * on the new basement so that he could use the front for renting out for industrial purposes.' And, referring to Mr. Warmann's home, he said: '* * * the burns were remodeled. I saw Gus work carpenter work on the barns, I saw him paint up there later on. I saw him do any numerous chores. He helped trim trees up there and Uncle Will started his subdivision in there close to that. He built a street in there. I saw Gus there, worked with Gus, laid brick on those homes. I saw Gus work with the shovel, help dig footings, to help mix concrete and put in footings to build the concrete block basement walls and saw him later help put a roof on, carpenter work, from start to finish. I worked with Gus on the brickwork and I saw him on other homes, approximately 15 homes were built in there. Most of the work while I was there was done from start to beginning and he and Gus alone, and another man named Chris Knarr.'

Toward the end of Mr. Warmann's life, he (Mr. Warmann) and Gus were planning one of the hunting trips they took every fall, and Mrs. Warmann 'told me Uncle Will's health wasn't good, she was concerned about it, he was doctoring, had a heart condition, would get dizzy spells, and she said to me, she says, 'He can't go unless Gus is with him.' She told me she was happy Gus agreed to go because she said, 'Should anything happen to him, Gus will take good care of him.' She says, 'It takes a load off of me, I feel so relieved because Gus can do the driving.'' After Mr. Warmann's death, the witness saw Gus 'on more than one occasion when he was cutting the lawn. I saw him working in a grape arbor trimming it, and one time he was doing some work in the orchard.' And,...