McQuitty v. Wilhite

• Decision Date: 24 December 1912
• Citation: 152 S.W. 598,247 Mo. 163
• Parties: McQUITTY v. WILHITE et al.
• Court: Missouri Supreme Court

152 S.W. 598

247 Mo. 163

McQUITTY v. WILHITE et al.

Supreme Court of Missouri, Division No. 1.

December 24, 1912.

1. APPEAL AND ERROR (§ 1009)—FINDINGS— CONCLUSIVENESS.

The Supreme Court on review of the sufficiency of the evidence to support the findings in an action for specific performance will not feel bound to reverse because the witnesses to the making of the contract were negroes, and that their testimony was indistinct as to certain matters of details, and somewhat lacking in precision, but will also consider the fact that two chancellors hearing the witnesses made similar findings.

2. VENDOR AND PURCHASER (§ 39)—CONSIDERATION —ILLEGAL CONSIDERATION.

A promise by a white man to convey land to a negress is not supported by a consideration by the fact that she bore him children.

3. SPECIFIC PERFORMANCE (§ 55)—CONTRACTS ENFORCEABLE—EVIDENCE.

That a negress suing for the specific performance of a contract by a white man to convey land to her in consideration of personal services as housekeeper bore children to him does not alone discredit the contract or avoid it.

4. SPECIFIC PERFORMANCE (§ 121)—CONTRACTS —EVIDENCE—SUFFICIENCY.

Though parol contracts to convey real estate in consideration of personal services will not be enforced unless clearly established, yet equity will not permit one making a promise to convey to take advantage of the ignorance and helplessness of the other, and procure the performance of the services without making the conveyance.

5. SPECIFIC PERFORMANCE (§ 121)—CONTRACT TO CONVEY REAL ESTATE—EVIDENCE—SUFFICIENCY.

Evidence held to show a contract to convey real estate in consideration of personal services, justifying specific performance after the death of the promisor.

6. SPECIFIC PERFORMANCE (§ 121) — CONTRACTS ENFORCEABLE—EVIDENCE.

To justify specific performance of a contract to convey real estate in consideration of personal services, it must appear that the services performed were referable exclusively to the contract, and the contract must be established by clear and unequivocal proof.

7. SPECIFIC PERFORMANCE (§ 121)—EVIDENCE —CREDIBILITY OF WITNESSES.

The fact that one suing for specific performance of an oral contract to convey real estate in consideration of performance of services had in a prior suit alleged an earlier date of the making of the contract affected merely the credibility of plaintiff as a witness.

Appeal from Circuit Court, Boone County; N. D. Thurmond, Judge.

Action by Harriett McQuitty against R. L. Wilhite and others. From a judgment for plaintiff, defendants appeal. Affirmed.

W. M. Williams, of Boonville, and E. W. Hinton, of Columbia, for appellants. J. L. Stephens, of Columbia, for respondent.

LAMM, J.

Plaintiff, a black woman (well towards, if not over), 80 years of age, sues for performance in specie of a contract by one W. to convey to her 40 acres of land, worth say $2,000. From a decree in her favor, defendants, the collateral heirs of W. (now deceased), appeal.

The single question is whether the evidence supports the decree. About the close of the Civil War plaintiff came to W.'s plantation in Boone county as his housekeeper. He was then a widower, and never remarried. He had an only child, who died and left no offspring. We take it that at all times in hand he had a considerable plantation, and subsequently added to it. He ran his plantation solely with negro help, and, if there were any white folks about him on the plantation, it is not disclosed. In 1877 he acquired a tract known as the "Whiteside place," and it is a described 40 acres of this tract that is the subject-matter of this suit. Plaintiff was about 18 years old when she became such housekeeper. She seems to have been married, but when is dark, and so far as we can see her husband, to use a favorite phrase of Judge Ray, "cuts no figure in the case," and is a negligible quantity. W. died in 1905, a man of prominence, intestate, and leaving a large estate. In substance, the petition charges that about 1878 W. promised plaintiff the land if she would remain with him until his death, and perform the household and other duties enumerated in the petition. (The language of the petition is broad enough, when liberally construed, to cover a conveyance or a devise.) It further charges that plaintiff relied upon the promise, accepted it in good faith, entered upon the performance thereof, and fully performed on her part; that at the close of his life, in pursuance of his promise, W. was about to make the conveyance, but sickened and died without the opportunity. It is further alleged that plaintiff bore W. two children. The answer was a general denial. Plaintiff brought a prior suit in two counts. In one count she claimed a money recompense for services as housekeeper for over 40 years. In the other she sued for specific performance, as in this suit. Cast below on the merits on the first count in the first suit she abided the judgment. Successful on the second count, the then defendants (administrators of W.) appealed. We reversed the judgment on the second count because the heirs of W. were not parties. 218 Mo. 586, 117 S. W. 730, 131 Am. St. Rep. 561. Thereupon she brought the present suit.

Plaintiff's uncommonly long-continued, manifold, and singular services to W. are abundantly shown by the testimony. Practically the quantity and quality of her services are conceded by appellants. Defendants content themselves on that behalf by putting in testimony tending to show that plaintiff received and contracted to receive $4 per month for her services, together with one-half the chickens, eggs, and butter produced on the plantation, after deducting what was needed for the table. The extent of table demands or of her revenue from chickens, eggs, and butter are only darkly indicated, but the latter seems at times to have amounted to something of substance. She seems, also, to have sold feathers, but whether she was the sole beneficiary of the feathers marketed is not so clear. She seems to have been deemed worthy to do some, if not all, of the marketing for W. in household supplies, and to be put in charge of his extensive plantation in his absence, transmitting his orders to his black employés, looked after their observance, and pro hac vice acting as overseer. That he had marked confidence in her integrity, capacity, and disposition to serve him also appears. It is certain, too, that he planned to keep her by him, and felt grateful to her. We get glimpses of her diligent faithfulness in her master's field, garden, and dairy for a lifetime. She lived in a tenant house in his dooryard, had the key to the smokehouse and farm supplies, was trusted to supply the men, and report the items to her master. We take it she was his sole house servant, as such had charge of his house, and (in about his household affairs and personal needs) did all, to use the language of one witness, "a woman could do." There is testimony that towards the end (that is, before W. died) she became crippled in his service, but there is nothing to show she did not live up to high-water mark in quality of service as long as he lived. There is also uncontradicted testimony that she bore him two children, a boy and a girl, long since grown. But such sinister relation is not alleged, shown, or claimed as a consideration for the contract sued on.

We shall not set forth the details of the evidence relating to the contract sought to be specifically performed. We give our own view of the tendency of it as it fell from the lips of the black people who testified for her. However, so far as we can discover, there were (as said) no white people on the plantation at any time who would be likely to know anything of the contract. To the contrary, there was always a group of colored men cropping and working. Naturally the testimony would be looked for from them.

One testified that W. promised both him and plaintiff a home apiece if they would stay and work for him until he died. Plaintiff said she would stay, and did, but witness left in a couple of years. Afterwards he returned for a business purpose, and, being invited to dinner by W., was addressed by...