Hunter v. Allen

• Decision Date: 02 May 1944
• Citation: 148 P.2d 936,174 Or. 261,147 P.2d 213
• Parties: HUNTER <I>v.</I> ALLEN ET AL.
• Court: Oregon Supreme Court

174 Or. 261

147 P.2d 213

148 P.2d 936

HUNTER

v. ALLEN ET AL.

Supreme Court of Oregon.

Argued February 16, 1944.

Argued on rehearing at Pendleton May 2, 1944.

Motion to dismiss appeal denied December 14, 1943.

Modified March 14, 1944.

Appeal dismissed as to defendants and former opinion adhered to as to cross-appeal May 16, 1944.

Rehearing denied May 23, 1944.

Partnership

1. On dissolution of a partnership, in absence of evidence showing a different intention of parties, capital assets, after settlement of partnership debts, are to be divided among partners in proportion to amounts which partners contributed, the amount contributed by each partner being looked upon as a debt of firm to him.

Partnership

2. Ordinarily, a partner who contributes no capital but merely devotes his time, skill and services to business is not entitled to any share in firm capital on dissolution, but is limited to his share in profits as compensation for his services.

Partnership

3. Copartners may agree among themselves in what proportion assets of partnership, including capital assets, may be divided between them upon dissolution.

Partnership

4. Evidence sufficiently established parol agreement between mother and son for equal division of partnership assets in stock ranches between them upon dissolution.

Wills

5. Parol contracts to devise or convey realty are regarded with suspicion and will be carefully scrutinized.

Wills

6. A parol contract to devise or convey realty must be established by clear, concise, convincing and satisfactory evidence and must be just, reasonable and mutual in its terms.

Frauds, statute of

7. It is competent for owner of realty to orally contract with another to devise realty to such other, but such contract is within statute of frauds and is unenforceable and void unless performance thereof is sufficient to take it without the statute.

Wills

8. Under a parol contract to devise realty there must be a strict performance by promisee of terms and conditions of contract.

Wills

9. Under a parol contract a devise realty for rendition of certain services, rendition of services must be wholly referable to contract and solely predicated thereon, yet it must appear that proper and adequate compensation for services cannot otherwise be made, and that services were of exceptional character or of such peculiar value to promisee that value thereof is not subject to pecuniary estimate.

Wills

10. Evidence that son performed services for mother, which services were required of son under his partnership agreement with mother, in absence of unequivocal proof other than that of testimony of son, was not sufficiently clear, concise, convincing and satisfactory to establish parol contract by mother to devise to son land which she held before formation of partnership.

Specific performance

11. Equity will not compel specific performance of a parol contract to devise realty proved unequivocally only by testimony of claimant.

Specific performance

12. Generally, where services are performed by child for parent in consideration of agreement by parent to devise realty to child, equity will impress property in hands of administrator or heirs at law with a trust in favor of such child, provided he has completely performed agreement, and will compel a conveyance in accordance therewith.

Wills

13. To enforce parent's parol agreement to devise realty to child in consideration of performance of services, contract must be established by clear and unequivocal proof, services rendered must be referable to and induced by contract, and must have been done with view to its complete performance.

Wills

14. The mere relationship of mother and son does not tend to prove existence of parol contract of mother to devise realty to son in consideration of services rendered by son.

Partnership

15. Where mother and son were in partnership, lands taken in mother's name but purchased with partnership funds were partnership property in which son had an undivided one-half interest in addition to his interest as an heir at law.

Gifts

16. Where mother and son were partners and mother had formed intent to leave son all lands in certain county, taking of title to lands purchased in such county with partnership funds in

son's name constituted an executed "gift" of mother's interest in such lands purchased to son.

Joint tenancy

17. Where complaint alleged and answer admitted that certain bank accounts were held jointly in names of mother and son to be paid upon death of either to survivor exclusively and that by reason of death of mother accounts were exclusive property of son, finding that accounts were property of partnership between mother and son was error.

ON REHEARING

Appeal and error

18. Where proposed modification of decree with respect to division of personalty would have been advantageous to the appellee, she was not an "adverse party" on whom notice of appeal was required to be served.

Appeal and error

19. Where proposed modification of decree as respects real property among contending parties was such that the interest of the appellee therein would be adversely affected, she was an "adverse party" on whom notice of appeal was required to be served.

Appeal and error

20. If interests of a party on appeal by another party may be adversely affected, such party is entitled to notice of appeal, in default of which Supreme Court will not acquire jurisdiction, but if only possible modification of decree would better his condition, he is not "adverse party" and it is not necessary to notify him.

                  Who is adverse party within statute providing for service of
                notice of appeal on adverse party, note 88 A.L.R. 419. See, also
                3 Am. Jur. 164, 40 Am. Jur. 373
                  37 C.J.S., Frauds, Statute of, § 100
                  4 C.J.S., Appeal and Error, § 592
                

Before BAILEY, Chief Justice, and KELLY, LUSK, BRAND and HAY, Associate Justices.

Appeal from Circuit Court, Malheur County.

FORREST L. HUBBARD, Judge.

Action by Clarence J. Hunter against Edith E. Allen and others, for a judicial determination that there was a partnership between plaintiff and his mother, Malinda A. Hunter, deceased, in a certain livestock business and that plaintiff was owner of a certain interest in specified realty. From the decree, defendants Elmer N. Hunter, Ralph G. Hunter, George Hunter, and Elmer N. Hunter, administrator of the estate of Malinda A. Hunter, deceased, appeal and plaintiff cross-appeals.

MODIFIED. Appeal dismissed as to defendants and former opinion adhered to as to cross-appeal on rehearing; further rehearing denied.

Max S. Taggart, of Ontario, for appellants.

James T. Donald, of Baker (Hallock, Donald & Banta, of Baker, on the brief), for respondent.

HAY, J.

Jason Hunter was a cattle raiser and rancher, and owned stock ranches in Malheur and Harney Counties. He died in the year 1916, intestate, and left surviving him a widow, Malinda A. Hunter, who was his second wife, and ten children, five of whom were the issue of his first marriage and five of his second. The widow, at the time of Hunter's death, was about sixty years of age. She determined to continue the operation of the stock ranches, and, with that end in view, acquired the interest of all of the children in the property of her late husband. The plaintiff, Clarence J. Hunter, is the oldest of the five children of the second marriage. At the time of his father's death, he was about thirty-one years old. He had been employed by his father as a rider and ranch hand, and continued in the same employment for his mother as administratrix of his father's estate. The administration was closed in 1918. Malinda A. Hunter died, intestate, April 24, 1942.

The plaintiff instituted this suit against the administrator of his mother's estate and her heirs at law other than himself, that is to say, his brothers, Elmer, Ralph and George Hunter, and his sister, Edith E. Allen. He sought to have it judicially determined that there was a partnership between his mother and himself in the livestock business, and that, by the terms of their agreement, he became and is now the owner of an undivided one-half interest in all of the partnership property of every description, and to have the court declare furthermore that, by virtue of an agreement between himself and his mother and the full performance of such agreement upon his part, he became, at her death, the equitable owner of certain lands in Malheur County, referred to as the home ranch, the George Hunter homestead, the Desert Claim, and the School Land, the legal title to which stands in her name. His amended complaint, after setting forth the legal description of all of the lands in Malheur and Harney Counties owned by Mrs. Hunter at the time of her death, alleges that, subsequent to the death of Jason Hunter, Malinda A. Hunter and the plaintiff entered into an oral agreement to operate and manage the ranch properties and the personal property as "full and equal partners"; that plaintiff would contribute to the venture $3500 in cash, and would "continuously devote his work, labor, services, time, skill and attention to the operation and management of the said properties"; that, in consideration of his so doing, he and his mother would jointly own the personal property and the increase therefrom and share equally the income of the ranch properties; and that, at Mrs. Hunter's death, plaintiff would receive and own one-half of all the real property at that time owned by her. It is alleged that he accepted "said offer" and, in reliance upon it, thereafter devoted all of his time and skill to the operation and management of the ranches and personal property; that the partnership continued until the death of Mrs. Hunter; that in 1928 or 1929, at a time when the partners moved their headquarters from Harney County to Malheur County, the agreement was modified to the extent that, instead of plaintiff receiving, at the time of his mother's death, an undivided...