Jones v. Jones

• Citation: 63 S.W.2d 146,333 Mo. 478
• Decision Date: 09 August 1933
• Docket Number: 31095
• Parties: H. H. Jones v. Robert B. Jones and Albert M. Jones, Appellants
• Court: United States State Supreme Court of Missouri

63 S.W.2d 146

333 Mo. 478

H. H. Jones v. Robert B. Jones and Albert M. Jones, Appellants

No. 31095

Supreme Court of Missouri

August 9, 1933

Appeal from Putnam Circuit Court; Hon. A. G. Knight, Judge.

Affirmed.

Clare Magee and Luther & Luther for appellants.

(1) The court erred in holding that there was a valid verbal contract, because: (a) It was unconscionable and unfair. Morton v. Forsee, 249 Mo. 409; Beagles v Robertson, 135 Mo.App. 322; Ball v. Rayburn, 136 Mo.App. 546. (b) It was champertous. Taylor v Perkins, 171 Mo. 246; Kelerher v. Henderson, 203 Mo. 499. (2) The court erred in holding that it was such a contract as could be enforced by specific performance because: (a) It was within the Statute of Frauds. R. S. 1929, sec. 2967. (b) Services which can be readily estimated are not a sufficient act of part performance to take the case out of the Statute of Frauds. 36 Cyc. 672; 25 R. C. L. 266; Swearingen v. Stafford, 188 S.W. 97. (c) Proper remedy is by suit upon quantum meruit. 27 C. J. 363; Cozad v. Elam, 115 Mo.App. 136; Bean v. Valle, 2 Mo. 83; Galway v. Shields, 66 Mo. 313; Swearingen v. Stafford, 188 S.W. 97. (d) It is only when a real fraud will be worked that a specific performance will be decreed. 36 Cyc. 673; Walker v. Bohannon, 243 Mo. 119; Buxton v. Huff, 254 S.W. 79. (e) If evidence is evenly divided specific performance should not be granted. Melville v. Waring, 159 Mo.App. 400.

Claude C. Fogle for respondent.

(1) The circuit court, being a court of general jurisdiction, every presumption must be indulged in aid of its proceedings to sustain the same as regular and proper unless facts revealing the contrary appear to the appellate court. Wonderly v. Haynes, 186 Mo.App. 81. There is a presumption of right action upon the part of the trial court, and this presumption must prevail unless a showing is made which overthrows the presumption. Garber v. Mo. Pac. Ry. Co., 210 S.W. 379. The circuit court, being a court of general jurisdiction, is presumed to have proceeded without error, and that presumption abides until the contrary is shown. White v. Hoffman, 52 S.W.2d 831. Error is not to be presumed. Interstate Ry. Co. v. Railroad Co., 251 Mo. 720. The burden is upon the appellants to point out the error of the trial court. Interstate Ry. Co. v. Railroad Co., supra. The brief for appellants shall distinctly allege the errors committed by the trial court, and errors not thus alleged will not be considered by the appellate court. Missouri Supreme Court Rules, No. 15. Assignments of error not briefed or argued by appellants should be treated as abandoned. Higgins-Wall-Dyer Co. v. St. Louis, 53 S.W.2d 864. (2) This court will not disturb the finding of the chancellor that the contract in issue was not champertous, as such finding is based on conflicting evidence and there is sufficient evidence of no champerty to support the finding. Bohannon v. Combs, 97 Mo. 448; Strine v. Williams, 159 Mo. 587. (3) Parties may make their own contracts and the courts of law will enforce only such contracts as the parties actually made and ordinarily it may be said to be an immaterial inquiry whether the contract made is wise or unwise, reasonable or unreasonable. Webber, etc., Co. v. Goswell, 299 S.W. 155; Blaine v. Knapp Co., 140 Mo. 251; Bethurkas v. Railroad Co., 249 S.W. 438.

Sturgis, C. Ferguson and Hyde, CC., concur.

OPINION

STURGIS

Defendants have appealed from a judgment in plaintiff's favor in a suit for specific performance of a contract by which defendants agreed to convey 180 acres of land in Scotland County to plaintiff. Plaintiff is an attorney at law and alleges that defendants employed him to defend a suit then pending in Scotland County to contest a will, in which suit defendants were interested to the extent of 1158 acres of land in that county, and agreed to pay him on a contingent basis the land now in dispute, a part thereof. The will involved in that suit was the will of Mary M. Thomson, deceased, probated in Scotland County, by which she devised to the defendants here the land now in dispute together with other land making the total of 1158 acres. The testatrix had died without any descendants and these defendants were her cousins, children of her mother's sister, who was yet living, and therefore defendants had no interest in testatrix's property except under the contested will, though their mother was a natural heir, and to an extent interested in having the will annulled, but was not one of the contestants. The contestants were other brothers and sisters of testatrix or their descendants, heirs of Mary M. Thomson, and still other heirs of Mary M. Thomson who refused to join in the contest were made defendants, as were other devisees in the will and the executor, J. C. Miller. The present defendants were the principal devisees in the will and consequently were vitally interested in defeating the contest case and having the will established in solemn form.

The lawyer plaintiff in this case is the brother of defendants' father and naturally enough these two young men, age twenty-eight and thirty-one and yet living with their father, when they came into ownership of this large landed estate under the will, sought the advice and assistance of their lawyer uncle, this plaintiff. The will contest was not filed in court until nearly a year after the will was probated and it is conceded that in the meantime the plaintiff rendered valuable services to the defendants in connection with matters arising in the probate court, including inheritance taxes, and in obtaining loans of money for them pending the administration of the estate. It also appears that defendants, while having a considerable fortune left them by this will, had little, if any, other property or resources. Plaintiff testified, and defendants did not contradict, that it was understood that plaintiff would be paid reasonably for these services.

Then the suit was commenced by disappointed heirs of Mary M. Thomson to contest her will on the grounds of her mental incapacity to make a will and that same was procured by undue influence and perhaps that the same was not legally executed. These defendants were duly served with process. The testatrix, Mary M. Thompson, while a resident of Scotland County in this State, was temporarily in Colorado and she there executed this will and died there. The executor of the will, J. C. Miller, himself a defendant in the will contest, appeared in court at the return term and his attorney, as attorney for the estate, without being employed or authorized to do so by these defendants or other interested parties, filed an answer for all the defendants, including the defendants in this case. The defendants here naturally talked with plaintiff concerning this will contest, but no definite arrangements to employ him in the will contest case was made until notice was given by the attorney for the executor and accepted by the attorneys for the contestants in the will case to take depositions of very material witnesses living in Colorado, including the attorney who wrote and witnessed the will there, a former resident of Scotland County, Missouri, and the date of taking such depositions in Colorado was near at hand. Then it was, as plaintiff alleges, that the contract sued on here was made, the substance of which is that plaintiff was employed by defendants and agreed to defend for them the will contest case, and defendants agreed to pay him for his services by conveying to him a definite 180 acres of the land devised to defendants and described in the petition.

The petition herein, after alleging the matters preliminary and as inducements, avers that defendants on August 10, 1928, "entered into a contract and agreement with this plaintiff whereby they employed this plaintiff as their attorney to represent them and their interests in the defense of said will contest suit; . . . that under and by the terms and provisions of said contract and agreement this plaintiff was to defray all of his personal expenses in securing evidence in behalf of defendants and in attending the taking of any depositions required therein, and, if other counsel or attorneys should be deemed necessary, this plaintiff was to employ the same at his own expense; that in consideration of the services to be so rendered by this plaintiff thereunder and in payment for all services theretofore rendered by plaintiff to defendants as hereinbefore set out, defendants therein contracted, promised and agreed with this plaintiff that, should he (plaintiff), as their said attorney, be successful in causing the said will of Mary M. Thomson, deceased, to be sustained in said suit then pending in the Circuit Court of Scotland County to contest said will, and secure or procure for defendants the lands therein devised and willed to them as aforesaid, they, the defendants, would give, transfer and convey to plaintiff the real estate above described, containing 180 acres, and would make, execute and deliver to plaintiff their deeds of conveyance thereto for said purpose; but if in said will contest suit the said will was declared by the court not to be the last will and testament of said Mary M. Thomson, deceased, then plaintiff was to have or receive nothing for all of his said services as aforesaid, or for any expense or attorney's fee incurred by plaintiff in the defense thereof." The plaintiff then alleges full performance of the contract by him, culminating in a trial and judgment for defendants establishing the validity of the will in question and confirming the defendants' title to the 180 acres of land in question.

The defendants by their answer deny generally and then say that in the will contest case the executor of the will filed an answer for all the...