In re Henry's Estate

• Decision Date: 06 November 1943
• Docket Number: 35850.
• Citation: 157 Kan. 471,142 P.2d 717
• Parties: In re HENRY'S ESTATE. v. SCURRY et al. HENRY
• Court: Kansas Supreme Court

142 P.2d 717

157 Kan. 471

In re HENRY'S ESTATE.

HENRY v. SCURRY et al.

No. 35850.

Supreme Court of Kansas

November 6, 1943

Syllabus by the Court.

Specific performance of a contract to convey or devise real estate will not be enforced unless it is fair and equitable, and a court of equity will remand the aggrieved party to his action at law or will itself grant damages for the breach.

It is the inadequacy of an award of damages for breach of contract to convey or devise realty which supplies the foundation for relief by decree of specific performance.

Generally specific performance of contract to convey or devise land is enforced where the intimate and peculiar services rendered by the aggrieved party could not be adequately compensated in money, and where it would be inequitable to withhold specific performance.

In suits for specific performance of contracts concerning land if the breach of the contract could be adequately redressed by a money judgment and no constraining equities are involved, monetary damages and not specific performance is awarded.

Specific performance of oral contract to devise land in exchange for services performed and to be performed, should not be decreed, where the services rendered were of the character usually rendered by real estate dealers, and the value thereof could be determined and adequately compensated in money, and to specifically enforce the contract would give the promisee land, the value of which greatly exceeded value of services.

In proceedings in the probate court and on appeal to the district court to enforce a claim for a tract of land against a decedent's estate, founded on an alleged oral contract for certain services of the character usually rendered by a real estate dealer, whereby the decedent and her husband (who had predeceased her) had promised to devise the land to plaintiff, it is held that on the pleadings and the evidence there was no substantial showing to justify a departure from the usual rule that equity will not specifically enforce an oral promise to devise real estate where the promisee can be adequately compensated in money for the decedent's breach of contract,--following Baldwin v. Squier, 31 Kan 283, 1 P. 591; Engelbrecht v. Herrington, 103 Kan 21, 172 P. 715, L.R.A.1918E, 785; Roberts v. Roberts, 130 Kan. 85, 285 P. 584; Dixon v. Fluker, 155 Kan. 399, 125 P.2d 364.

Appeal from District Court, Sumner County; Wendell Ready, Judge.

On rehearing.

Former opinion modified.

HARVEY and PARKER, JJ., dissenting.

Austin M. Cowan, of Wichita (E. J. Taggart, of Wellington, C. A. McCorkle, W. A. Kahrs, Robert E. Nelson and Henry L. Butler, all of Wichita, on the brief), for appellants.

George Siefkin, of Wichita (H. W. Goodwin and W. H. Schwinn, both of Wellington, on the brief), for appellee.

DAWSON Chief Justice.

This is a rehearing. The original opinion was filed on May 8, 1943. 156 Kan. 788, 137 P.2d 222.

The present question is whether this action for specific performance, if sufficiently maintained, presents a situation which takes it out of the ordinary rule that equity will not specifically enforce an oral contract to devise real property by will when the promisee can be adequately compensated in money for breach of such contract.

Counsel for appellants contend that the rule announced in Syllabus 7 and the corresponding portion of our opinion is too broadly stated, and is not in accord with other decisions of this court pressed on our attention.

In deference to this contention we have re-examined our own precedents on this question. But, first, to briefly restate the issues: It will be recalled that the oral contract alleged and which plaintiff seeks to enforce was made during harvest time in 1932. It was alleged that the owners of the land involved herein stated to plaintiff at that time that--

"They desired the petitioner, in the future, to take full charge and control of the said real estate and further requested that instead of having them come to Sumner county, Kansas, to make settlement that he come to Boonville, Missouri, to make settlement each year.

"*** that they desired to have for themselves, and the survivor of them, all of the income and profit from the real estate so long as either of them might live; but that if the petitioner would continue to render services to them in the future as he had in the past, that they would so prepare their wills that upon the death of the survivor of them, he, the said J. B. Henry, would receive as payment for services rendered in the past and to be rendered in the future and would become the owner of, by bequest and devise, the following described real property in Sumner county, Kansas, [240 acres described.]"

Plaintiff alleged that he thereupon agreed to perform the specified services, and-- "11. That the said J. B. Henry thereupon stated to Minnie G. Henry and J. S. Henry that the said real estate would constitute ample payment for the services which he had rendered in the past and for the services which he might render in the future; and he further stated to the said Minnie G. Henry and J. S. Henry that he would render the said services to them and to the survivor of them without regard to how long they or either of them might live, and take said land as payment."

Elsewhere in his petition plaintiff alleged that the services which he was to render and did render were those "commonly rendered by an agent to a principal in looking after and managing real estate."

Touching the value of his alleged services pursuant to that oral contract plaintiff testified, "In my opinion, my services were worth $300 a year since 1906."

For present purposes we ignore defendant's timely objection that this testimony by plaintiff pertained to a transaction he had had with deceased persons, in disregard of the Civil Code, G.S.1935, 60-2804. And in our first opinion we held that even if the alleged oral contract of 1932 were intended to obligate the promisors for past services, it would be unenforceable to that extent, under another provision of the Code, G.S.1935, 60-312, which will only allow such an action when the alleged promise has been made in writing.

There was some other testimony touching the value of plaintiff's services but none more direct and positive than his own; and it is obvious that plaintiff's own testimony was accepted as the truth by the trial court, although its computation of their total value was for 36 years instead of 8 years and 10 months,--from the making of the contract in August, 1932, until the death of Mrs. Minnie Henry in June, 1941. $300 per year for 8 years and 10 months amounts to $2,650, as the monetary value of plaintiff's services which he alleged that he performed under the alleged contract.

The testimony to which the trial court gave credence, and about which there was little dispute, was that the 240 acres of land claimed by plaintiff was worth $42 per acre, "something like ten thousand dollars."

If specific performance should be decreed in this case rather than monetary compensation based upon plaintiff's own valuation of his services under the oral contract of 1932, he will be given judgment in land to the extent of three to four times the value of his services. Before such a judgment could be rendered, a considerable question would have to be disposed of which a court of equity could not ignore. The text books and our own cases generally hold that specific performance even of a written contract or where some written memorandum of its acknowledgment is not wanting, will not be enforced unless it is fair and equitable; and that a court of equity will give no aid to the enforcement of hard or inequitable bargains, but will remand the aggrieved party to his action at law or will itself grant damages for the breach. Fowler v. Marshall, 29 Kan. 665; Bird v. Logan, 35 Kan. 228, 10 P. 564; Reid v. Mix, 63 Kan. 745, 66 P. 1021, 55 L.R.A. 706; Shoop v. Burnside, 78 Kan. 871, 98 P. 202; Young v. Schwint, 108 Kan. 425, 195 P. 614; Kinsley Milling Co. v. Waite, 112 Kan. 809, 213 P. 160; Bowen v. Galloway, 125 Kan. 568, 264 P. 1038 and citations; Haston v. Citizens' State Bank, 132 Kan. 767, 297 P. 1061; Merwin's Equity and Equity Pleading, 407; 25 R.C.L. 221; 58 C.J. 951, 954-955, 1208.

Fundamentally it is the frequent inadequacy of an award of damages for breach of contract which supplies the foundation for relief by decree of specific performance,--where the consideration rendered by the promisee cannot be adequately compensated in money. Our own decisions, particularly in respect to the enforcement of oral contracts for the devise of real property, have uniformly recognized this principle.

We have had many cases where the circumstances showed quite clearly that the services promised under the oral contract to devise or convey land could not be adequately compensated in money. Typical of these was Bateman v. Franklin, 114 Kan. 183, 217 P. 318, the syllabus of which states the facts and the rule of equity applied: "An oral promise of an uncle and aunt to their nephew, a minor, that if he would come and live with them and render them dutiful obedience and service as their own child until he attained his majority, at the death of the survivor of them they would leave him half their farm or half its proceeds, when accepted and fully performed by the nephew is an enforceable contract against the administrator of the estate of the last surviving obligor, and the statute of frauds is no bar to an action thereon, nor is the statute of limitations a bar thereto if the action is timely begun against the administrator."

In a wide variety of cases, specific performance of contracts concerning land has been judicially upheld, whether the contracts were oral...