Head v. Schwartz' ex'R
| Decision Date | 20 May 1947 |
| Citation | 304 Ky. 798 |
| Court | United States State Supreme Court — District of Kentucky |
| Parties | Head et al. v. Schwartz' Ex'r. |
1. Frauds, Statute of; Specific Performance. — A parol contract to devise land is within statute of frauds and an action for specific performance cannot be maintained. KRS 371.010.
2. Frauds, Statute of. — Performance by the promisee in an oral agreement to devise land does not take contract out of the statute of frauds. KRS 371.010.
3. Frauds, Statute of. — Part performance, except in the case of contracts not to be performed within a year, will not remove oral contract from the statute of frauds although a party may have equitable rights which he may enforce. KRS 371.010.
4. Frauds, Statute of. — Generally, one who fails or refuses to comply with a contract unenforceable by the reason of statute of frauds after having derived benefits from a part performance by other party is liable upon a quantum meruit for the benefits conferred upon him, the contract to pay reasonable value of services rendered being implied. KRS 371.010.
5. Executors and Administrators. — Promisee who has fully performed under an oral contract to devise real estate as compensation for services to be rendered, by rendering the required services, although unable to maintain an action upon the contract, may maintain an action against the personal representative of deceased promisor on a quantum meruit to recover value of services. KRS 371.010.
6. Frauds, Statute of. — In action on quantum meruit for services rendered pursuant to an oral contract to devise land as consideration for services, where value of services cannot be readily determined, contract price is admissible to show value placed on services by parties notwithstanding that contract is itself within statute of frauds. KRS 371.010.
7. Executors and Administrators. — Where decedent had orally promised to devise to plaintiffs certain realty in consideration for services rendered by plaintiffs and their children in working farm, and plaintiffs had fully performed, and promise was unenforceable because of the statute of frauds, plaintiffs' remedy was an action on the quantum meruit for value of services rendered and not for breach of contract. KRS 371.010.
Appeal from Daviess Circuit Court.
John F. Wood and Wilson and Wilson for appellants.
R. Miller Holland for appellee.
Before Sidney B. Neal, Judge.
Affirming.
This is an appeal from a judgment dismissing the plaintiffs' petition after a demurrer thereto had been sustained and plaintiffs had declined to plead further.
Lila Hayden Schwartz died testate May 20, 1946, and Noel Hayden was nominated in her will as her executor. On August 28, 1946, Clarence G. Head and Mary Roxie Head, his wife, brought this action against the executor to recover damages in the sum of $10,000 for the breach of an alleged oral contract by the decedent to devise certain real estate to them. Mrs. Schwartz, a widow, owned a farm in Daviess county consisting of a 40-acre improved tract and a 76-acre unimproved tract. Mr. and Mrs. Head were tenants on the farm. They alleged in their petition that for several years prior to 1941 they resided upon the 40-acre tract and managed and cultivated it along with the unimproved 76-acre tract; that they had a family consisting of themselves and ten children, which constituted a force sufficiently large to operate a much larger farm and they were contemplating moving to a larger and more productive farm; that in 1941 or 1942 Mrs. Schwartz proposed to them that if they would agree to remain upon her farm and manage and cultivate it she would make a will leaving to them the 76-acre unimproved tract to be theirs absolutely; that they accepted the proposition, and remained upon the farm during the remainder of the life of Mrs. Schwartz; that they made improvements upon the 76-acre tract at their own expense, and fully carried out their part of the contract; that in September, 1944, Mrs. Schwartz did execute a will wherein she devised the 76-acre unimproved tract of land to the plaintiff Clarence G. Head; that thereafter in the year 1945, while under the domination and influence of others and while she was quite ill and in violation of her agreement with the plaintiffs, she executed another will wherein she devised the 76-acre tract to other persons and failed to make any devise to the plaintiffs or either of them. Appellants argue on this appeal that an oral contract to devise land can be enforced where the contract has been fully performed by the promisee, and a number of cases are cited in support of their contention. An examination of these cases reveals that they fall in one of three classes: (1) Cases involving agreements not to be performed within one year from the making thereof where one of the parties has fully performed his part; (2) cases involving written agreements to convey or devise land; and (3) cases where the benefit to the intestate cannot be measured in money, and there is no way to determine the amount of recovery except by the pecuniary standard fixed by the parties to the contract. Berry v. Graddy, 58 Ky. 553, is an example of the first class, and Wides v. Wides' Ex'r, 299 Ky. 103, 184 S.W. 2d 579, is an example of the second class.
This court has uniformly held that a contract of the character sued on herein is within the statute of frauds, KRS 371.010, prohibiting the sale or transfer of land by parol, and an action for specific performance cannot be maintained. Carpenter v. Carpenter, 299 Ky. 738, 187 S.W. 2d 282; Rudd v. Planters Bank & Trust Co., 283 Ky. 351, 141 S.W. 2d 299; Gibson v. Crawford, 247 Ky. 228, 56 S.W. 2d 985. Performance by the promisee in an oral agreement to devise land does not take the contract out of the provisions of the statute of frauds. In Maloney v. Maloney, 258 Ky. 567, 80 S.W. 2d 611, 613, the court said:
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