Jones v. Adams, 7336

CourtUnited States State Supreme Court of Idaho
Citation182 P.2d 963,67 Idaho 402
Docket Number7336
PartiesJONES v. ADAMS et al
Decision Date02 July 1947

Appeal from District Court, Seventh Judicial District, Washington County; A. O. Sutton, Judge.

Affirmed.

George Donart, of Weiser, and Herman Welker, of Payette, for appellants.

Specific performance of an oral contract to devise lands in consideration of services rendered will not be decreed unless the plaintiff has taken possession of the land or his services were of such a nature that their value can not be estimated and compensated for in money, nor where the plaintiff has an adequate legal remedy. Andrews v Aikens, 44 Idaho 797, 260 P. 423, 69 A.L.R. 8; Hoyt v. Thomas, 58 Cal.App. 14, 207 P. 1038; Mathews v Tobias, 101 Or. 605, 201 P. 199; Grindling v Rehyl, 149 Mich. 641, 113 N.W. 290, 15 L.R.A.,N.S., 466; Morrison v. Land, 169 Cal. 580, 147 P. 259; Zellner v. Wassman, 184 Cal. 80, 193 P. 84; Swedish Evangelical Free Church of United States of America v. Benson, 77 Colo. 370, 237 P. 165.

Frank H. Joseph, of Weiser, for respondent.

In Andrews v. Aikens, 44 Idaho 797, Syllabus 1 and 2, and page 804, 260 P. 423, 424, 69 A.L.R. 8, and in the opinion of the Court we find the following:

"(1) The paramount issue in this case is whether or not this particular contract should be specifically enforced by the Court. A will is ordinarily ambulatory and revocable at any time before the testator's death, and this is so although delivered to the person beneficially interested. However, where a will has been made pursuant to a valid contract, the testator cannot by revocation escape the obligations of his contract. Restitution must be made to the other contracting party by compensation in damages for the breach of the contract if pecuniary compensation can be had, and specific performance will only be decreed in the absence of a remedy at law.

"(2) Performance of services of such a character that their value cannot be estimated by a pecuniary standard is required to permit a decree of specific performance. There seems to be entire harmony in the authorities on this proposition, and we will only cite a few stating this rule: Owens v. McNally, 113 Cal. 444, 45 P. 710, 33 L.R.A. 369; Hayden v. Collins, 1 Cal.App. 259, 81 P. 1120; Morrison v. Land, 169 Cal. 580, 147 P. 259; Christin v. Clark, 36 Cal.App. 714, 173 P. 109; Zellner v. Wassman, 184 Cal. 80, 193 P. 84; Hoyt v. Thomas, 58 Cal.App. 14, 207 P. 1038; Swedish Evangelical Free Church v. Benson, 77 Colo. 370, 237 P. 165:" White v. Smith, 43 Idaho 354, 253 P. 849.

Holden, Justice. Budge, C. J., and Givens and Miller, JJ., concur.

OPINION

Holden, Justice.

This is a suit to compel the specific performance of an oral contract to will real property. The cause was tried April 25, 1946. August 5, 1946, findings of fact and conclusions of law were made and entered in favor of plaintiff and respondent and against defendants and appellants. Whereupon decree was entered and rendered on such findings. October 2, 1946, defendants appealed.

It appears from the record that John L. and Lora I. Michael were childless; that in the latter part of 1907 Johnson Jones, then a widower, and the father of respondent, Virgil Jones, a minor, spoke to John L. Michael about taking the boy Virgil; that Michaels said as long as they lived in town (Weiser) they would not be interested; but that they had not sold their ranch and, if they moved back they might consider taking the boy. Later, in 1908, the Michaels moved back to their ranch. After the Michaels moved back, Mrs. Michael told the father of respondent that Mr. Michael was going to be hauling wood and would be away from home, and that, if the father wanted them to, they would take the boy for company and to do chores; that the father immediately took the boy to the Michaels' home; that a few days later Mrs. Michael told the father she had forgotten about doctor bills; "that they [the Michaels] would not take care of that responsibility at that time"; that the father told her he would assume that responsibility.

It further appears that in the latter part of 1911 or 1912 Mr. Michael got sick; that he became irritable and nagged the boy to the point where the boy threatened to leave the Michaels; that Mrs. Michael then went to the father and asked him to persuade the boy to stay with them, saying she did not want the boy to leave because they had become attached to him and liked him, and that "when we get through with what we have got we want him [respondent] to have it"; that, accordingly, the father talked to the boy and persuaded him to stay; that the father did not remember whether he told the boy about the property, but said that he probably did; and the boy, upon the trial of the cause, did not remember whether his father told him, but that, after his father talked to him, he decided to, and did, continue to live with the Michaels.

It also appears from the record respondent lived with the Michaels as long as they lived on the ranch; that when they moved back to Weiser he went back with them; that the Michaels treated respondent as parents ordinarily treat a son and he treated them as a son ordinarily treats parents; that Mr. Michael died in respondent's arms; that the boy continuously lived with the Michaels until his marriage (1931), except for a time when he went to California and worked in a shipyard during the Second World War; that after marriage, respondent and his wife lived in an adjoining house; that the contract made by the father for the benefit of respondent was fully performed by respondent.

In limine, it is contended the trial court erred in overruling appellants' demurrer to respondent's complaint, "in that it is not alleged in the complaint that the services rendered by the plaintiff to the decedents were of such a nature that they could not be readily compensated for in damages". The allegations of the complaint, pertinent to a determination of that contention, are:

VI. "That the plaintiff Virgil R. Jones was born in the year 1899, and in 1905 his mother died, leaving Johnson Jones, the father of the plaintiff, with a number of little children, and said Virgil R. Jones, from the date of the death of his mother to 1908 stayed with the mother of Johnson Jones. In 1907 said Johnson Jones, knowing that John L. Michael and Lora I. Michael were childless and were people of considerable means and wanted children, sought them out and asked them if they would not take Virgil into their home to raise and care for as their child; that at the time said John L. Michael and wife, Lora I. Michael, were living in Weiser, he running a butcher shop, and they told Johnson Jones at that time that while they were living in town they would not be interested in taking the child to raise, but that they were thinking about moving back to the country and if and when they did do this they would be interested in taking the child; and in the following year 1908 said John L. Michael and wife, Lora I. Michael, sold out the butcher shop business in Weiser and moved up to a large ranch they owned on Manns Creek, and thereupon said John L. Michael and Lora I. Michael sought out the said Johnson Jones and reminded him of the former conversation and stated they were interested in taking the boy to raise, but they did not desire to commit themselves finally until they had given the boy a trial and they would like to take the boy a while and if he proved satisfactory they agreed to give him a permanent home and raise him as their own; that in this conversation the question came up about who would pay the expenses of doctor and medical bills in the event the boy should become sick during the period of time the Michaels had him on trial, and it was agreed that whatever doctor and medical bills were incurred that they should be paid by said Johnson Jones.

VII. "That the custody of the plaintiff was taken over by said John L. Michael and Lora I. Michael and he continued from that time to live in the home with and as a member of the family of John L. Michael and Lora I. Michael until in the year 1912 when John L. Michael became in very ill health and was irritable and hard to live with, and at that time the plaintiff threatened to and was about to leave the Michaels' home and go back to his father to live. Thereupon in the year 1912 while the said John L. Michael was confined to his home by illness, the said Lora I. Michael, on behalf of herself and husband, came to said Johnson Jones on the street in Weiser and told him of the conditions in the home, how irritable her husband had become and that Virgil R. Jones had threatened to and was about to leave them and come back to the home of his father to live; that she told the said Johnson Jones, the father, that she and her husband had become very attached to said Virgil R. Jones and they considered him as their son and did not want him to leave, and she told him that if he, Johnson Jones, would agree to cause Virgil to not leave the home of the Michaels' but to continue to live there and make that this permanent home, she and her husband, in consideration of his doing this, when the last one of them died, would leave all the property that they might have at the death of the last one of John L. Michael and Lora I. Michael to the said Virgil R. Jones as their heir. This Johnson Jones agreed to do.

VIII. "That thereupon and in consideration of said promise so made at said time and place by the said John L. Michael and Lora I. Michael, acting by and through the said Lora I. Michael, said Johnson Jones did at once see the plaintiff Virgil R. Jones and told him of the agreement which he had made with the said John L. Michael and Lora I. Michael to the effect that if Virgil R. Jones would not leave the Michaels' home...

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