James v. Lane

• Decision Date: 12 October 1918
• Docket Number: 21,727
• Citation: 175 P. 387,103 Kan. 540
• Parties: LUCY A. JAMES, Appellee, v. FRANK A. LANE, as Administrator, etc., S. T. BARONS and CORA B. BARONS, Appellants
• Court: Kansas Supreme Court

175 P. 387

103 Kan. 540

LUCY A. JAMES, Appellee, v. FRANK A. LANE, as Administrator, etc., S. T. BARONS and CORA B. BARONS, Appellants

No. 21,727

Supreme Court of Kansas

October 12, 1918

Decided July, 1918.

Appeal from Rice district court; FRANK F. PRIGG, judge pro tem.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

CONTRACT--Oral Agreement to Bequeath Property--Specific Performance--Insufficient Evidence. In an action against an heir at law for the specific performance of an oral contract alleged to have been made between the deceased and plaintiff by which the deceased agreed to make a will leaving all her property to the plaintiff, it is held, on the facts stated in the opinion, that the evidence is not sufficient to sustain a judgment in plaintiff's favor.

A. M. French, of Concordia, Samuel Jones, and Ben Jones, both of Lyons, for the appellants.

A. C. Banta, of Great Bend, for the appellee.

OPINION

BURCH, J.:

The suit was one for specific performance of an alleged oral contract between plaintiff and her sister, Mrs. F. E. Barons, deceased, by which the latter agreed to make a will leaving all her property to the plaintiff.

Mrs. F. E. Barons, a widow, died intestate, a resident of Rice county, in August, 1914, owning three quarter sections of land in Rooks county, two dwelling houses and a hotel in Lyons, and five or six thousand dollars' worth of personal property. She was indebted to the extent of several thousand dollars. The defendants are F. A. Lane, administrator of her estate, S. T. Barons, her son and only heir at law, known in the family and referred to by the witnesses as "Chip" Barons, and his wife, Cora Barons.

From 1878 until her death Mrs. Barons was in the hotel business, first at Clyde, then at Concordia, and later at Lyons; for several years prior to her death she had been conducting the Interstate hotel at Lyons. Her sister, Lucy A. James, spoken of by everyone as "Aunt Lucy," is past 77 years of age, and not strong mentally or physically; she had lived with Mrs. Barons since 1878, working in the hotels, part of the time as chambermaid or as waitress, receiving her board, clothing, spending money and a home, but no stipulated wages. She was treated as a member of her sister's family, and for several years another sister resided in the same way with Mrs. Barons.

F. A. Lane had lived at the Barons' hotel for a great many years and was a close friend of the family and the adviser of Mrs. Barons in many of her business transactions. While he was proceeding to close up the estate as administrator, the plaintiff, through the assistance of her friend, John F. Starkey, employed Solon T. Gilmore, a lawyer of Kansas City, Mo., who filed her claim in the probate court against the estate for $ 15,032, wages alleged to have been earned in the employment of her sister in working about the hotels. The administrator filed numerous defenses to the claim, and when it came up for hearing December 2, 1915, the claim was amended to include an express as well as an implied contract for wages. The administrator was represented by A. M. French of Concordia; the heir at law, Chip Barons, was represented by Samuel Jones of Lyons; and the plaintiff appeared by Mr. Gilmore. The matter of plaintiff's claim and the making of some provision for her support were discussed by the probate judge and the attorneys, and the hearing was passed until the next day to see if the parties could agree upon a settlement. On February 3 a written agreement of settlement, made in triplicate, was signed by F. A. Lane as administrator, Chip Barons and his wife, and by Aunt Lucy, by which two dwelling houses and the Interstate hotel at Lyons were to be conveyed by the heir at law to F. A. Lane as trustee for Aunt Lucy; so much of the proceeds of the real estate as was necessary was to be used to provide her a home, board, clothing, medical care and attention as long as she lived, and at her death the trustee was to turn the property over to Chip Barons. The probate judge was advised of the terms of the settlement, and it was presented to and approved by him; a journal entry was recorded showing that the court found the settlement was equitable and just between the parties, and judgment was rendered confirming the settlement and barring Aunt Lucy from all other claims against the estate. The trust deed was executed, and the administrator proceeded to carry out the terms of the trust. He borrowed money on some of the property, paid taxes, made numerous payments of cash to the plaintiff at her request, furnished her board, and paid her accounts at the stores for clothing and other necessities. She fell and fractured her hip, making her a permanent cripple, and she was in a hospital for ten weeks, with a special nurse when required, and was furnished proper medical care and attention.

The plaintiff became dissatisfied with the terms of the settlement, and on June 28, 1916, this suit was filed by her present attorney, charging a conspiracy between the trustee, his attorney, S. T. Barons and his attorneys, plaintiff's attorney, Solon T. Gilmore, and the probate judge of Rice county, with the intent to defeat her rights, and alleging that they compelled her to sign the agreement through duress, and she asked that it be held void. She also alleged that in the lifetime of Mrs. Barons the latter had verbally promised that if she would continue with and work for her as long as she lived, Mrs. Barons would at her death will to plaintiff all the property of which she died seized. Plaintiff prayed for the specific performance of this verbal contract.

The answer was a general denial, and a plea that plaintiff had elected her remedy when she presented her claim for wages; that the decision of the probate court is res judicata; that she had confirmed and ratified the settlement by accepting its benefits and was estopped to deny its validity. The answer set out the large number of monthly payments made after the agreement was entered into, and even after the bringing of this action, and further alleged that the settlement in the probate court was equitable and just, and asked that it be held valid and binding upon the plaintiff. Upon these issues there was a trial and a judgment for plaintiff, from which defendants appeal.

The trial court finds that plaintiff made no claim to the probate court or to her attorneys that her sister had promised to make a will in her favor; that there was no conspiracy to defraud her as alleged, but that she was induced to sign the agreement solely by the threats and coercion of her attorney, Gilmore, and her weakened condition physically and mentally; and that before she signed the agreement she stated she wanted F. A. Lane to be named as trustee. The court then finds that Mrs. Barons promised plaintiff that if she would live with her and perform services in her hotels during her lifetime, she would give all her property to plaintiff by will provided she died before plaintiff, and further that plaintiff performed the services. There is a finding that the proceedings in the probate court were had without evidence being introduced, except the written agreement, and that the proceedings and judgment were based on the agreement.

There is force in defendants' contention that plaintiff should be held bound by her election of remedies. Her claim in the probate court was predicated both upon an implied and an express contract to pay her reasonable wages for services rendered; and whether she relied upon an express contract or one raised by implication, her remedy was based upon the theory that the title to the property vested in the heir at law on the death of Mrs. Barons, subject to Mrs. Barons' indebtedness. Her present action would appear to be an inconsistent remedy, because it proceeds upon the theory that the title to all the property passed directly to plaintiff upon her sister's death.

In Moline Plow Co. v. Rodgers, 53 Kan. 743, 37 P. 111, the plaintiff brought replevin to recover property delivered to a vendee under a conditional sale, the vendor retaining a right to elect to take the goods unsold as its own property. Creditors of the vendee attached the property, and plaintiff brought an action in another state against the vendee to recover the purchase price of the sale. It was held that the two remedies were inconsistent, because the plaintiff could have no claim for the value unless the title had passed to the vendee, while if the title had passed, plaintiff had no right to the goods. The action in the other state was held an election of remedies which prevented the plaintiff from maintaining the replevin action. To the same effect see Bank v. Haskell County, 61 Kan. 785, 60 P. 1062; Ullrich v. Bigger, 81 Kan. 756, 106 P. 1073, and cases cited in the opinions. In the Ullrich case it was held that the action was doubly barred--by the election of an inconsistent remedy, and by prosecuting that remedy to a judgment. When plaintiff chose her remedy in the probate court she necessarily was aware of all the facts upon which her present suit is based.

We prefer, however, to rest the decision upon the specific ground that there was no evidence which would justify the court in finding that the contract relied upon by plaintiff was ever made. No competent evidence was offered to show the existence of any contract between her and Mrs. Barons; and, if there could be said to be circumstances sufficient to raise the implication that some kind of a contract existed with reference to the disposition of the property of Mrs. Barons at her death, no witness testified what the terms of such contract were. The following question was asked of plaintiff:

"Now Aunt Lucy, I will ask you whether or...