Marshall & Ilsley Bank v. Schuerbrock

• Decision Date: 10 January 1928
• Citation: 217 N.W. 416,195 Wis. 203
• Parties: MARSHALL & ILSLEY BANK ET AL. v. SCHUERBROCK ET AL.
• Court: Wisconsin Supreme Court

195 Wis. 203

217 N.W. 416

MARSHALL & ILSLEY BANK ET AL.

v.SCHUERBROCK ET AL.^a1

Supreme Court of Wisconsin.

Jan. 10, 1928.

Appeal from a Judgment of the Circuit Court of Milwaukee County; Otto H. Breidenbach, Judge.

Action by the Marshall & Ilsley Bank, administrator of the estate of Frederick H. Bartels, deceased, and others, against Bertha Schuerbrock and others, in which the defendant named filed a counterclaim. From the judgment, plaintiffs appeal. Reversed and remanded, with directions.--[By Editorial Staff.]

Ejectment. Counterclaim for specific performance. Frederick H. Bartels, deceased, was married to the plaintiff Kate Bartels at the city of Cincinnati, Ohio, on the 3d day of June, 1884. Bartels having become dissipated left Cincinnati in the early part of the year 1891, deserting his wife and son, the plaintiff Frederick J. Bartels, who was then about 4 years of age. Thereafter Frederick H. Bartels never visited nor communicated with his wife or son nor contributed to the support of either of them. He came directly to the city of Milwaukee to the home of his sister, the defendant Bertha Schuerbrock, with whom he thereafter lived to the time of his death, May 29, 1926, except that for the greater part of the year 1909, he was employed as a traveling salesman and was therefore not at home. Within a few months after his arrival in Milwaukee, the deceased secured employment in the wholesale and retail grocery house of the Steinmeyer Company, and remained in such employment continuouslyfor 18 years. He then left and engaged in traveling during the year 1909, and in 1910 opened a retail grocery business of his own and conducted the business down to 1923, when he sold it to his nephew, Walter Schuerbrock, and retired.

The court found that from the year 1891 to the year 1904 the deceased spent his entire earnings and had nothing wherewith to pay the defendant Bertha Schuerbrock for her services in providing him with a home, furnishing him board and lodging, and mending his clothes; that “in the early part of the year 1904 Frederick H. Bartels began saving money, and many times and continually thereafter until the year 1920 orally contracted and agreed with and promised to defendant Bertha Schuerbrock that, in consideration of her having provided him with a home and having furnished him with board and having washed and mended his clothes and having taken care of him and having treated him as a member of her family from the early part of 1891, and in consideration of her agreement to continue so doing in the future, he would buy her a house in the city of Milwaukee, Wis., to pay her therefore, and, in reliance upon such contract, promise, and agreement, and in consideration therefor, defendant Bertha Schuerbrock continued to provide him with a home and furnish him with board, wash and mend his clothes, and treat him as a member of her family, until his death.”

It appears without dispute that on March 6, 1920, the deceased purchased the premises in question located in the city of Milwaukee; that the title thereto was taken in the name of Frederick H. Bartels, the deceased, and continued in him uninterruptedly to the time of his death. It is the claim of the defendant Bertha that she at all times believed the premises in question belonged to her, expended the sum of $325 thereon for painting, decorating, laying concrete sidewalk, planting shrubbery, improving the plumbing, and in making general repairs, and that by reason of such belief she caused the taxes to be paid thereon from the year 1920 up to and including the year 1925, in the amounts specified in the findings.

It was further claimed by the defendants, and the court so found, that the deceased had “never paid any money or gave any property to defendant Bertha Schuerbrock, or in any way fulfilled his contract to pay her for having given him a home and having taken care of him from the year 1891, until May 29, 1926 (the date of his death), except that he purchased and gave to her the real estate and premises above described.”

It was further claimed by the defendants and found by the court that “in the year 1920, immediately after he bought the said real estate for defendant Bertha Schuerbrock, and many times and continually thereafter, until his death on May 29, 1926, Frederick H. Bartels orally contracted and agreed with and promised to defendant Bertha Schuerbrock that, in consideration of her having provided him with a home and having taken care of him in the past, and in consideration of her agreement to continue so doing during the remainder of his life, as payment in addition to the purchase of the house for her, he would leave her a part of the money which he would have accumulated upon his death,” and that, in reliance thereon, the defendant Bertha Schuerbrock continued to provide him with a home, take care of him, and treat him as a member of her family until his death.

The court further found that the reasonable value of the services rendered by Bertha Schuerbrock to the deceased from the year 1891, excluding the year 1909, exceeded the value of the real estate in question; the reasonable value of such real estate being $12,000.

It appears that in November, 1906, about 19 years after her husband deserted her, the plaintiff Kate Bartels believing herself to be a widow, married one Ellsworth Baker, who died June 28, 1919. The son, Frederick J. Bartels, left school and became a wage earner at 13 years of age, finally removing to Cleveland, Ohio, where he lived at the time of his father's death. Louis Schuerbrock, the husband of Bertha, was employed for many years in a store in Milwaukee. His salary at no time exceeded $80 per month. The defendant Walter Schuerbrock, was the son of Louis and Bertha, first clerked in his uncle's store, and in 1923 bought the store from his uncle, the deceased. Adele Schuerbrock, a daughter of Louis and Bertha, was a music teacher and is and has for many years been employed in the Milwaukee public schools. Marie Bartels was a sister of the deceased and Bertha Schuerbrock, and lived in the Schuerbrock home since 1893.

Upon the death of Frederick H. Bartels, letters of administration were granted to the plaintiff Marshall & Ilsley Bank; an inventory of the assets of the deceased Frederick H. Bartels disclosed an estate of approximately $30,000, including the house and lot in question. On the 27th day of November, 1926, the administrator of the estate of the deceased, the widow, Kate Bartels, and the son Frederick J. Bartels, commenced this action in ejectment against Bertha Schuerbrock, sister of the deceased, Louis Schuerbrock, Bertha's husband, Adele Schuerbrock and Walter Schuerbrock, their children, and Marie Bartels, the sister. Thereupon the defendant Bertha Schuerbrock answered the complaint and claimed the right to have the oral agreement between her and the deceased specifically performed, and asked to have the title to said real estate quieted in her as against the plaintiffs and all persons claimingunder them, and, in the alternative, if specific performance be denied, that she be awarded an equitable lien for improvements and taxes. The other defendants answered. There was a reply to the counterclaim, and, upon the equitable issue made by the reply, a trial was had. The court submitted two questions to the jury:

“Question 1: Did the decedent, Frederick H. Bartels, say to the defendant Bertha Schuerbrock, at the time of the purchase of the premises in question, that they were hers in full or in part payment for services performed in keeping him and to be performed in keeping him during the remainder of his life? Answer: Yes.” (Two jurors dissenting.)

“Question 2: Did the decedent, Frederick H. Bartels, deliver the possession of the premises in question to the defendant Bertha Schuerbrock in March or April, 1920? Answer: Yes.” (One juror dissenting.)

The verdict was returned April 15, 1927. Thereupon the trial court adopted the findings proposed by the defendants, in which the material facts were found as already stated and other findings made, and upon which judgment against the plaintiffs and in favor of Bertha Schuerbrock was rendered, from which judgment the plaintiffs appeal.

Lines, Spooner & Quarles, of Milwaukee (James Quarles and James T. Guy, both of Milwaukee, of counsel), for appellants.

Glicksman & Gold and Slensby & Zaidins, all of Milwaukee (Morris Karon, of Milwaukee, of counsel), for respondents.

ROSENBERRY, J.

[1] There are one or two preliminary questions which must be disposed of before proceeding to the case upon its merits. It is first argued that the court was in error in taking the advisory verdict from the jury. This practice is so well established that we shall do no more than to refer to some of the cases. Neff v. Barber, 165 Wis. 503, 162 N. W. 667;Callanan v. Judd, 23 Wis. 343. However, such verdicts are merely advisory and are not conclusive upon the court. The court may set them aside or give judgment contrary to the verdict if the evidence warrants such a judgment. Magoon v. Reber, 76 Wis. 392, 45 N. W. 112;Henning v. Iron Ridge Canning Co., 186 Wis. 499, 202 N. W. 466.

[2] Where findings are made and the findings conflict with the verdict, the findings supersede and set aside the verdict. Gersich v. Starich, 177 Wis. 507, 188 N. W. 492.

A brief reference to applicable legal principles will be helpful in a solution of the questions presented by the record. Except as the contract being an oral one is taken out of the statute of frauds by so-called part performance, it is void and ineffectual for any purpose. As to what constitutes sufficient part performance to take an oral contract to convey land out of the statute of frauds, there is great conflict in the authorities. In England it is held that possession alone is sufficient. It is so held in some states. Taking possession of the purchased premises with the consent of the vendor and payment of the whole or...