Herman v. Madden

• Decision Date: 26 February 1942
• Docket Number: 37606
• Citation: 162 S.W.2d 268,349 Mo. 447
• Parties: William Herman v. Thomas R. Madden, Public Administrator of the Estate of Ignatz Zahrada, deceased, also known as Fred Zahrada, also known as Fritz T. Zahrada, also known as Ignaz Zahrada and Fritz Zahrada; and Leopoldine Zahrada Schwarzbauer, Mrs. Anna Pohl, Maria Zahrada, and the Unknown Heirs of Ignatz Zahrada, deceased, consorts, heirs, devisees, donees, alienees, or immediate mesne or remote grantees, Appellants
• Court: Missouri Supreme Court

162 S.W.2d 268

349 Mo. 447

William Herman v. Thomas R. Madden, Public Administrator of the Estate of Ignatz Zahrada, deceased, also known as Fred Zahrada, also known as Fritz T. Zahrada, also known as Ignaz Zahrada and Fritz Zahrada; and Leopoldine Zahrada Schwarzbauer, Mrs. Anna Pohl, Maria Zahrada, and the Unknown Heirs of Ignatz Zahrada, deceased, consorts, heirs, devisees, donees, alienees, or immediate mesne or remote grantees, Appellants

No. 37606

Supreme Court of Missouri

February 26, 1942

Rehearing Denied April 16, 1942. Motion to Transfer to Banc Denied June 3, 1942.

Appeal from Circuit Court of City of St. Louis; Hon. Joseph J Ward, Judge.

Reversed.

Paul P. Hoegen for Thomas R. Madden, Public Administrator, and Detjen & Detjen for Leopoldine Zahrada Schwarzbauer, Mrs. Anna Pohl and Maria Zahrada appellants.

(1) Respondent did not prove the making of an oral contract with Zahrada to devise the property in question to him. (a) A mere preponderance of evidence is not sufficient to prove such a contract, but the evidence must be so unquestionable, clear, cogent and convincing that no reasonable doubt can be entertained of its truth, and evidence of admissions by the decedent after many years, is not of a high grade and will be received with great caution. Russell v. Sharp, 192 Mo. 279, 91 S.W. 134; Oliver v. Johnson, 238 Mo. 359, 142 S.W. 274; Rosenwald v. Middlebrook, 188 Mo. 58, 86 S.W. 200; Goodin v. Goodin, 172 Mo. 24, 72 S.W. 502; Anderson v. Collins, 222 S.W. 451; Walker v. Bohannan, 243 Mo. 119, 147 S.W. 1024; Davis v. Hendricks, 99 Mo. 478; McElvain v. McElvain, 171 Mo. 244; Burt v. McKibbin, 188 S.W. 187; Collier v. Porter, 322 Mo. 697; Kidd v. Trust Company, 74 S.W.2d 827; Burnett v. Hudson, 228 S.W. 462; Wales v. Holden, 108 S.W. l. c. 94; Barnett v. Clark, 252 S.W. l. c. 628; St. Louis Union v. Busch, 145 S.W.2d 426. (b) A mere showing of friendliness or testamentary disposition on the part of the deceased will not suffice as proof of the making of a contract to devise. Barnett v. Clark, 252 S.W. 625; Burnett v. Hudson, 228 S.W. 462; Kirk v. Middlebrook, 201 Mo. 245, 100 S.W. 450; Walker v. Bohannan, supra; Forrister v. Sullivan, 231 Mo. 345, 132 S.W. 722. (2) Respondent's pleadings and evidence are insufficient to support the decree of specific performance. To warrant specific performance of an oral contract, the services rendered must be such as to be referable solely to the contract sought to be enforced; they must be of such character that their value cannot be accurately liquidated in money, and there must be no doubt that the services called for by the contract were fully and completely performed. Forrister v. Sullivan, supra; Sitton v. Shipp, 65 Mo. 297; Gibbs v. Whitwell, 164 Mo. 387, 64 S.W. 110; Rosenwald v. Middlebrook, supra; Walker v. Bohannan, supra; Selle v. Selle, 88 S.W.2d 877; Benjamin v. Cronin, 93 S.W.2d l. c. 981; Lamb v. Feehan, 276 S.W. 71; Barnett v. Clark, supra; Andrews v. Aikens, 44 Idaho 797, 269 P. 423; Stibal v. Nation, 98 S.W. 724.

Raymond L. Farmer for respondent.

(1) The decree of the Chancellor is for the right party and amply supported by the pleading, the evidence and the decisions of this court. Bick v. Mueller, 142 S.W.2d 1021; Burnett v. Hudson, 228 S.W. 462; Schweizer v. Patton, 116 S.W.2d 39; Finn v. Barnes, 101 S.W.2d 718, 340 Mo. 445; Selle v. Selle, 337 Mo. 1234, 88 S.W.2d 877. (2) While this court is not bound by the findings of the Chancellor, the evidence in this case is all oral except the notes Mr. Hoegen made from the information given to him by the deceased for the purpose of drawing the will, and, therefore, this court will defer to the findings of the Chancellor, who had the witnesses before him and had an opportunity to observe them and their manner on the stand and was in a better position to judge of their credibility and the weight and value to be given their testimony. Bick v. Mueller, supra; Burnett v. Hudson, supra; Selle v. Selle, supra. (3) Even though the plaintiff could have brought suit for the reasonable value of the services, he is entitled to specific performance, because the remedy would be inadequate as he could not enumerate all of the service and work he performed for the deceased over a period of twelve years. Jones v. Jones, 333 Mo. 478, 63 S.W. l. c. 146.

OPINION

Clark, J.

Suit for specific performance of an oral contract to devise real estate. The decree was for plaintiff in the circuit court of St. Louis city and defendants appeal.

The petition is against the administrator and heirs of Ignatz Zahrada, deceased, and alleges: in March, 1925, plaintiff became a tenant of Zahrada at 3533 Illinois Avenue in St. Louis; plaintiff and his wife rented the upstairs portion of the premises and Zahrada and his wife lived in the downstairs portion; Zahrada often asked plaintiff to make repairs and do odd jobs around the premises and also around the premises at 3427 Henrietta Avenue, in said city, each of which was owned by Zahrada and his wife; that plaintiff, without any definite agreement, but expecting to be paid, did such work until June, 1927, when Zahrada orally "promised and agreed with plaintiff at that time that if he would undertake such services and assist him therein that he would compensate him for his services by giving him as compensation therefor the property where plaintiff resided. The same to be left to plaintiff in his will upon the death of the said Zahrada;" that Mrs. Zahrada consented to this agreement; she died on June 3, 1938; that plaintiff fully performed the agreement on his part, alleging certain repairs made by him; that Zahrada was hit by a street car on October 16, 1939, and died in a hospital two days later without leaving a will.

Cases similar to this have often been decided by this court. [Forrister v. Sullivan, 231 Mo. 345, 132 S.W. 722; Oliver v. Johnson, 238 Mo. 359, 142 S.W. 274; Sitton v. Shipp, 65 Mo. 297; Gibbs v. Whitwell, 164 Mo. 387, 64 S.W. 110; Rosenwald v. Middlebrook, 188 Mo. 58, 59, 86 S.W. 200; Walker v. Bohannan, 243 Mo. 119, 147 S.W. 1024; Russell v. Sharp, 192 Mo. 270, 91 S.W. 134; Bick v. Mueller, 346 Mo. 746, 142 S.W.2d 1021; Schweizer v. Patton (Mo.), 116 S.W.2d 39; Selle v. Selle, 337 Mo. 1234, 88 S.W.2d 877.]

The requirements to authorize the specific enforcement of such a contract are well stated in the first case cited, supra, Forrister v. Sullivan, 231 Mo. l. c. 373, 4, as follows:

"(a). The conversations relied on as proof of the contract should not be too ancient, loose and casual.

"(b). The contract should be fair and just, not a fetching, biting or otherwise unconscionable bargain -- regard being had to the condition in life of the parties.

"(c). The terms of the contract should be so clear and definite as to free it from ambiguity and leave no doubt in certainty of terms or intendment.

"(d). The proof must show not only that some contract was made, but that the contract counted on in the bill was made.

"(e). Performance must be shown as far as practicable. It must be unequivocal. The acts relied on to show performance must in their nature be referable alone to the very contract sought to be performed; for it is only thereby, because of the benefits arising to the promisee, that his conscience and that of those claiming under him are bound. In a word, the acts relied on to show performance must point unerringly to the contract in suit and to none other. There must be an absence of doubt or equivocation throughout the whole case in pleadings and proof. From end to end it must be made out beyond a reasonable doubt and the state of the proof must bring the case within the reason of the exception to the statute, viz., that not to perform in kind, or in sort, would itself be a fraud.

"(f). The contract must be grounded on an adequate and legal consideration and it should be made clear to the mind of the chancellor that the law could not give adequate and perfect relief in damages, thereby attaining the full end and justice of the case and reaching the whole mischief; hence, the interference of equity is necessary to do rounded justice.

"(g). A mere testamentary disposition to devise by will or a mere benevolent disposition to convey by deed, by way of gift or as a reward for services not plainly provoked by and bottomed on the contract in suit, will not take the case out of the statute."

We now apply the standards above set forth to the evidence introduced in the instant case. In doing so, we must give due deference to findings of fact made by the trial chancellor, but are not bound thereby. [Selle v. Selle, 337 Mo. 1234, 88 S.W.2d 877.]

Plaintiff's evidence

Although the other party to the alleged contract was dead, the plaintiff was permitted to testify without objection. He said that for about two years he did "little odd jobs" around Zahrada's premises at his request, but without compensation; then, on June 19, 1927, "Mr. Zahrada told me if I would take care of his property in good shape he would will me that house on Illinois Avenue in his will, and I told him I will take a chance; whatever I had to do, I would do;" "under that agreement I was to take care of that property entirely;" that Mrs. Zahrada was present and said, "that goes for her also;" that after the agreement was made he worked around the premises at 3533 Illinois Avenue; fixed the fence, repaired the coal shed, painted the property about three times, made a frame for the cellar doors, repaired shutters and porches, painted the shutters, tore out boards all the way around the kitchen and plastered, painted the upstairs on the inside, and downstairs, made a brick walk about 25 feet; put in a concrete slab in the front yard, fixed water pipes, toilets and put a roof on the coal shed and on the...