Moore v. Rice

• Decision Date: 05 November 1937
• Docket Number: No. 1712.,1712.
• Citation: 110 S.W.2d 973
• Parties: MOORE et al. v. RICE.
• Court: Texas Court of Appeals

110 S.W.2d 973

MOORE et al. v. RICE.

No. 1712.

Court of Civil Appeals of Texas. Eastland.

November 5, 1937.

Rehearing Denied December 3, 1937.

Appeal from District Court, Comanche County; R. B. Cross, Judge.

Action by Jesse W. Rice against W. C. Moore, administrator of the estate of T. M. Jones, deceased, and others. From a judgment for plaintiff, defendants appeal.

Reversed and remanded.

Geo. E. Smith, of Comanche, for appellants.

Oscar Callaway, of Comanche, and John L. Poulter, of Fort Worth, for appellee.

GRISSOM, Justice.

This case was before this court on a former appeal. See Moore v. Rice, 80 S.W.2d 451.

The case is a suit by Rice against Moore, administrator of the estate of T. M. Jones, deceased, and Jones's heirs, on a contract alleged to have been entered into about 1918 between Jones and Rice, whereby Jones agreed with Rice, who was then a boy about seven years of age, that if Rice would continue to live with and care for Jones, etc., until Jones's death that Jones would in his will devise all of his property to Rice. Jones died in 1932 intestate. About five months after Jones's death, Rice instituted the present suit, the original pleadings thereof being discussed on the former appeal. As amended, the petition asserts in three alternative counts (1) a suit for specific performance of the alleged contract; (2) damages for the breach thereof, the measure of damages being alleged to be the value of the Jones estate; and (3) a suit for recovery of the value of services rendered.

The case was submitted to the jury upon the following special issues, which were answered as shown:

"1. Did the plaintiff, Jesse Rice and T. M. Jones, on or about February 5, 1918, enter into an agreement whereby T. M. Jones agreed to will or devise to said Rice all his property at his death if he would continue to remain with him and continue the relationship then existing between them, the said Jones and Rice, and care for and aid him during the remaining years of his life? Answer: Yes.

"2. Did Jesse Rice keep and perform his agreement, if any, to remain with said Jones and continue the relationship theretofore existing and care for and aid him during the remaining years of his life, from February 5, 1918 to July 23, 1932, the date of the death of said Jones? Answer: Yes.

"3. What was the reasonable market value of all the property, both real and personal, owned and possessed by said T M. Jones at the time of his death? Answer: $8,000.00.

"4. What was the reasonable value, if any, of the services rendered by Jesse Rice to the said T. M. Jones, if any, from February 5, 1918 to July 23, 1932, the date of the death of the said Jones?

"In arriving at your answer to the foregoing question you may take into consideration the situation and relationship of said parties during the years, from February 5, 1918 to July 23, 1932, and you may also take into consideration any payments, advancements, and the value of any services rendered by said Jones to said Rice, if any, and answer in Dollars and Cents, as you may determine from all the facts and circumstances in evidence. Answer: $3,500.00." (Italics ours.)

Judgment was rendered for Rice for $8,000. It is evident that the judgment was rendered upon the theory that Rice was entitled under the verdict to judgment under the second count for damages for breach of the contract to devise, and that the measure of damages for such breach was the value of the estate which Rice would have received had Jones devised and bequeathed all his property to Rice. The trial court evidently concluded that, the contract being oral, it could not be specifically enforced, the statute of frauds (Vernon's Ann.Civ.St. art. 3995) being interposed as a defense, but that damages for its breach could be recovered, and that the measure of such damages was the value of the estate.

It has been held that a contract based upon valuable consideration that one person will leave his property by will to another is enforceable where "no statute is contravened." Jordan v. Abney, 97 Tex. 296, 78 S.W. 486, 489. But a parol contract to devise realty is plainly condemned by the statute of frauds, unless the contract is relieved from operation of the statute (1) by payment of the consideration, (2) possession by the vendee, and (3) making of valuable and permanent improvements by the vendee, or without such improvements, when such facts are shown "as would make the transaction a fraud upon the purchaser if it were not enforced. Payment of the consideration, though it be a payment in full, is not sufficient." Hooks v. Bridgewater, 111 Tex. 122, 127, 229 S.W. 1114, 1116, 15 A.L.R. 216 (Italics ours.) All of the named elements must exist to render the contract enforceable as against the interposition of the statute of fauds as a defense. Here the only element existing is payment of consideration.

The contract alleged not being enforceable unless the three elements that permit its enforcement regardless of the statute exist, and such elements not existing in this case, it is clear that the first count in the petition, being for specific performance of such contract, cannot be maintained, the statute being asserted as a defense. Stevens v. Lee, 70 Tex. 279, 8 S.W. 40; Hooks v. Bridgewater, supra.

The contract alleged being unenforceable when the statute of frauds is interposed as a defense thereto, the plaintiff cannot recover damages for the breach thereof. "An action for damages for the breach of a contract is, in effect, an action for its enforcement, and the statute, in denying an action for its enforcement, likewise denies an action for damages for its breach." Alworth v. Ellison (Tex.Civ.App.) 27 S.W.2d 639, 640 (error refused); 20 Tex.Jur. 303-306; 27 C.J. § 399, p. 314. We therefore conclude that, although the first and second counts of the petition may be good as against a general demurrer, the petition having alleged written memorandum of the contract, said counts are not sustained by the evidence, only parol evidence having been introduced relative thereto and such evidence being objected to by defendant as violative of the statute of frauds. We understand the true rule to be, as applied to the facts disclosed by the record, that plaintiff may recover, if at all, only upon a suit for the reasonable value of services rendered to deceased, and that he cannot recover upon the contract alleged whereby Jones agreed, in consideration of Rice's services, to devise and bequeath to Rice whatever property he might possess at the time of his death, the statute of frauds being interposed as a defense. The cause of action asserted by the third count is not a suit based upon such contract, but said contract we think, may be proved to show (1) that the services of Rice were not intended to be gratuitously rendered, and (2) to show that the cause of action asserted under the third count, which is a suit for the reasonable value of the services rendered by Rice to Jones, is not barred by limitation. It is evident that we hold that a cause of action not subject to general demurrer is substantially alleged by the third count in the petition and that in such suit for the reasonable value of the services rendered the measure of damages ordinarily cannot be and in this case the "measure of damages" is not the value of the estate, but the value of plaintiff's services without reference to the value of the estate. Sprague v. Haines, 68 Tex. 215, 4 S.W. 371; Ray v. Young, 13 Tex. 550; Raycraft v. Johnston, 41 Tex.Civ. App. 466, 93 S.W. 237, 238; Stevens v. Lee, supra.

In connection with our conclusion that under the present state of the record appellee cannot recover under counts 1 and 2 of his petition, we deem it advisable in connection with the third count, wherein appellee sues for recovery of the value of services rendered, to call attention to the italicized portion of the instruction with reference to issue No. 4. When special issue No. 4, said italicized portion of the instruction, and the jury's answer thereto are considered together, as they must be, it cannot definitely be ascertained whether the jury found that appellee's services were worth $3,500, or whether they found that amount was the balance owing to appellee for his services after deducting "payments" and "advancements" by Jones to Rice and the "value of services rendered by Jones to Rice." As a finding with reference to the third count of the petition, it is in the nature of a general verdict. This is said specially with reference to appellee's contention that, if the judgment for $8,000 should not be sustained, this court should render judgment for appellee for $3,500.

Appellant assigns as error the introduction of the inventory and appraisement. Under some circumstances, the inventory and appraisement of an estate are admissible in evidence. Devine v. U. S. Mortg. Co. (Tex.Civ.App.) 48 S.W. 585; McCown v. Terrell (Tex.Civ.App.) 40 S. W. 54; Clapp v. Engledow, 72 Tex. 252, 10 S.W. 462; Johnson v. Morris, 45 Tex. 463. But, under the third count of the appellee's petition, being the only count finding support in admissible testimony, we think, since it is a suit for the value of the services rendered and not a suit for the enforcement of the contract either by recovery of the property, or its value as damages for its breach, it is evident that the inventory and appraisement is inadmissible. The question is what is the reasonable value of the services rendered, and this has no necessary connection with the value of the decedent's estate. If the inventory and appraisement were admissible under either the first or second counts, they were not under the third. No judgment can be...