Maness v. Graham

• Citation: 142 S.W.2d 1009,346 Mo. 738
• Decision Date: 10 September 1940
• Docket Number: 36352
• Parties: Lizzie Maness v. Joseph C. Graham and Stella Graham, His Wife, Thomas Graham and Gertrude Graham, His Wife, Walter Graham and Gertrude Graham, His Wife, Lillie Coleman and Preston Coleman, Her Husband, Fannie Drennen and Herbert Drennen, Her Husband, Minnie Wiley and Eugene Wiley, Her Husband, Lila Parock, also known as Lollie Parock, and Robert A. Parock, Her Husband, and Pauline Graham, a Minor, and Thomas Graham, Walter Graham, J. C. Graham, and Eugene Wiley, as Administrators of the Estate of W. P. Graham, and A. R. McKee, as Sheriff of Jefferson County, Appellants
• Court: United States State Supreme Court of Missouri

142 S.W.2d 1009

346 Mo. 738

Lizzie Maness v. Joseph C. Graham and Stella Graham, His Wife, Thomas Graham and Gertrude Graham, His Wife, Walter Graham and Gertrude Graham, His Wife, Lillie Coleman and Preston Coleman, Her Husband, Fannie Drennen and Herbert Drennen, Her Husband, Minnie Wiley and Eugene Wiley, Her Husband, Lila Parock, also known as Lollie Parock, and Robert A. Parock, Her Husband, and Pauline Graham, a Minor, and Thomas Graham, Walter Graham, J. C. Graham, and Eugene Wiley, as Administrators of the Estate of W. P. Graham, and A. R. McKee, as Sheriff of Jefferson County, Appellants

No. 36352

Supreme Court of Missouri

September 10, 1940

Rehearing Denied July 3, 1940.

Motion to Transfer to Banc Denied September 10, 1940.

In suit for specific performance of oral agreement by deceased to transfer land and other property to plaintiff for plaintiff's services in caring for deceased, evidence that deceased, after plaintiff entered upon performance of duties, stated that deceased 'was going' 'aimed' or 'intended' to build a bungalow on land which deceased had agreed to transfer to plaintiff was insufficient to establish a contractual relation warranting specific performance of alleged agreement with respect to constructing a bungalow.

Appeal from Franklin Circuit Court; Hon. R. A. Breuer Judge; Opinion filed at September Term, 1939, May 4, 1940 motion for rehearing filed; motion overruled at May Term, 1940, July 3, 1940; motion to transfer to Court en Banc filed; motion overruled at September Term, 1940, October 10, 1940.

Affirmed in part.

Milton F. Napier and James T. Blair, Jr., for appellants.

(1) The deposition of witness Melvin O'Harver was erroneously admitted in evidence on behalf of respondent for the reason that the witness was the agent who negotiated the alleged contract to which the other party was dead. Sec. 1723, R. S. 1929; Taylor v. George, 161 S.W. 1187; Asbury v. Hicklin, 81 S.W. 390. (2) The respondent failed to prove the identical contract pleaded. Having failed to discharge this burden, she was not entitled to the equitable relief of specific performance. Forrister v. Sullivan, 132 S.W. 722, 231 Mo. 345; Oliver v. Johnson, 142 S.W. 274, 238 Mo. 359; Walker v. Bohannon, 147 S.W. 1024, 243 Mo. 119; Hayworth v. Hayworth, 236 S.W. 26; Hinkle v. Hinkle, 236 S.W. 30. (3) Respondent's proof of an alleged oral contract for which she seeks specific enforcement is not of the clear, cogent and unmistakable character required as a basis for specific performance and is based upon nothing more than loose, vague and casual conversations, which evince a mere benevolent disposition on the part of the deceased. Forrister v. Sullivan, 132 S.W. 722, 231 Mo. 345; Oliver v. Johnson, 142 S.W. 274, 238 Mo. 359; Walker v. Bohannon, 147 S.W. 1024, 243 Mo. 119; Hayworth v. Hayworth, 236 S.W. 26; Hinkle v. Hinkle, 236 S.W. 30; Steibel v. Nation, 98 S.W.2d 724; Selle v. Selle, 88 S.W.2d 877. (4) The judgment of the trial court extending the equitable relief of specific performance to the respondent is erroneous for the reason that respondent had an adequate remedy at law. Selle v. Selle, 88 S.W.2d 877; Forrister v. Sullivan, 132 S.W. 722, 231 Mo. 345.

B. Sherman Landau and R. E. Kleinschmidt for respondent.

(1) Melvin O'Harver, agent of the deceased, W. P. Graham, was not disqualified by the death of said Graham from testifying in this proceeding. Snyder v. Patrick, 175 Mo.App. 320, 162 S.W. 312. (a) And this would be true even though O'Harver had acted as agent for the plaintiff (which relationship did not exist). Bernblum v. Travelers Ins. Co., 340 Mo. 1217, 105 S.W.2d 941. (b) Aside from the foregoing, the defendants waived any alleged incompetency of O'Harver on that ground by taking his deposition before respondent took the deposition she introduced in evidence. Hodge v. St. Louis Union Trust Co., 261 S.W. 67; Bush v. Block, 193 Mo.App. 704, 187 S.W. 153; Rice v. Waddill, 168 Mo. 99, 67 S.W. 605; Alexander v. W. O. W., 193 Mo.App. 411, 186 S.W. 2; Leahy v. Rayburn, 33 Mo.App. 55; Knickerbocker v. Tea Co., 285 S.W. 797. (2) Respondent, by the overwhelming weight of her evidence of clear, cogent, and unmistakable character, has proved herself to be justly entitled to the decree of specific performance entered by the chancellor. Berg v. Moreau, 199 Mo. 416, 97 S.W. 901, 9 L. R. A. (N. S.) 157; McQuitty v. Wilhite, 247 Mo. 163, 152 S.W. 598; Finn v. Barnes, 340 Mo. 445, 101 S.W.2d 718; Lothrop v. Marble, 12 S.D. 511, 76 Am. St. Rep. 626, 81 N.W. 885; Ver Standig v. St. Louis Union Trust Co., 129 S.W.2d 905; Smithers v. Barker, 97 S.W.2d 121; Rollison v. Wabash Ry. Co., 252 Mo. 525, 160 S.W. 994. (3) Plaintiff's prayer for specific performance was the proper remedy for the performable part of the contract. Taylor v. Hudson, 145 Mo.App. 377, 129 S.W. 261; Sharkey v. McDermott, 91 Mo. 647, 4 S.W. 107, 60 Am. Rep. 270. And she may receive damages for nonperformance of the rest. Kirby v. Balke, 306 Mo. 109, 266 S.W. 704; Jewell v. Dierks, 18 S.W.2d 1043. (4) In an equity case, the Supreme Court will give due deference to the findings of the trial chancellor, and that is true even in case where there has been a decree of specific performance of an oral contract. Berg v. Moreau, 199 Mo. 416; McQuitty v. Wilhite, 152 S.W. 600; Finn v. Barnes, 101 S.W.2d 721; Vining v. Ramage, 3 S.W.2d 722.

Bohling, C. Cooley and Westhues, CC., concur.

OPINION

BOHLING

This is an appeal by the administrators of the estate and the heirs of Wilson P. Graham, deceased, from a decree awarding respondent specific performance of an alleged oral agreement to transfer approximately 320 acres of land, known as the "Con Carlin" tract, in Jefferson County and $ 1,000 cash, together with an award of $ 1,000 damages for the breach of a covenant, for services rendered by respondent to said Graham during his lifetime.

Respondent's motion to dismiss is overruled. At the oral argument counsel for respondent stated "respondent's additional abstract" contained all matters omitted from appellant's abstract. We, therefore, have a sufficient record before us to pass upon the issues presented. [Consult Dreyer v. Videmschek (Mo.), 123 S.W.2d 63 [1]; Nordquist v. Nordquist, 321 Mo. 1244, 1247, 14 S.W. (2d) 583[1].] Appellants' brief states our jurisdiction is invoked because title to real estate is involved.

Wilson P. Graham lived on a farm. For fourteen years prior to 1933 Mrs. Lizzie Maness, respondent, worked for Mr. Graham as housekeeper, receiving a monthly wage ranging from $ 10 to $ 30, room and board. In 1933 Mr. Graham, an elderly man of approximately eighty years, received injuries in an automobile accident which confined him in a hospital. Released from the hospital he was taken to the home of his son Joe in De Soto, Missouri. Joe procured the services of an attorney; and Mr. Graham and respondent, on May 27, 1933, at the home of Joe, executed a written agreement wherein, subject to termination at any time by either party, respondent agreed to work for Mr. Graham as housekeeper and to take care of him in case of sickness for a wage to be agreed upon between said parties but not to exceed $ 30 per month, and board and lodging.

Respondent and Melvin O'Harver, her son, were at Mr. Graham's place during his absence. Mr. Graham returned there about July 12, 1933. Mr. O'Harver testified respondent quit on July 25, 1933; that Mr. Graham told witness he would have to have respondent take care of him, that witness could not do it; that "He got me to beg Mom to come back and he said he would give her more than the $ 30 a month, and she said she would not come back for the $ 30 a month alone, and he then said if she would come back and take care of him until his death he would give her the Con Carlin place and a thousand dollars;" that witness communicated to respondent the offer of $ 30 a month, plus the Con Carlin tract and $ 1,000; and that respondent accepted the offer, returned to the Graham home and took care of Mr. Graham until he died June 10, 1937.

The automobile accident left Mr. Graham in a bad condition. He required nursing services and personal attention at the time he returned to his farm. He had suffered a severe injury to his right arm. We understand, it was practically useless. He could get around but could not do any work, and during the last year or so of his life he was virtually helpless. There was testimony that respondent dressed, fed, shaved and bathed him; administered to his crippled arm; gave him alcohol rubs; attended him most of the time as an invalid and, at times, had to assist him in answering calls of nature; et cetera. In addition to the ordinary household duties there was testimony that respondent milked the cows; fed the cattle, helped butcher; attended the garden and chickens, canned vegetables etc., chopped and split wood, prepared and marketed the dairy products, et cetera.

A number of witnesses testified that Mr. Graham had expressed himself as satisfied with Mrs. Maness' services; that she was doing more for him than any one else and stated to one witness he wished she would marry him. Other testimony was that he complained about his children turning him down and putting him out on his place by himself; that, a short time before he died, he said respondent had earned $ 7,000 for him since 1933; and that, he also said, respondent quit soon after he returned to his farm and he hired her back and destroyed his copy of the original contract.

Frank Mulloy testified, among other things, that Mr. Graham made arrangements with him to take Mr. Graham, respondent and a Mr. Brinley to De Soto on June 8, 1937; that Mr. Graham said he wanted to attend to some business and needed some witnesses; but that on the morning of the ...