O'Neal v. First Trust Co. of York

• Decision Date: 27 May 1955
• Docket Number: No. 33715,33715
• Citation: 160 Neb. 469,70 N.W.2d 466
• Parties: J. W. O'NEAL, Appellant, v. The FIRST TRUST COMPANY OF YORK, Nebraska, et al., Appellee, Ronald Kenneth Lanyon, Intervener-Appellee.
• Court: Nebraska Supreme Court

Page 466

70 N.W.2d 466

160 Neb. 469

J. W. O'NEAL, Appellant, v.The FIRST TRUST COMPANY OF YORK, Nebraska, et al., AppelleeRonald Kenneth Lanyon, Intervener-Appellee.

No. 33715.

Supreme Court of Nebraska.

May 27, 1955.

Syllabus by the Court.

1.An admission in an answer does not extend beyond the intendment of the admission as clearly disclosed by its context.

2.The taking of a deposition before trial by a representative of deceased, at which time he examined or cross-examined the witness, is not a waiver of disqualification within the meaning of section 25-1202, R.R.S.1943, and appropriate objections thereto may still be raised at the trial.

3.Where one is claiming the estate of a deceased person under an alleged oral contract, the evidence of such contract and the terms of it must be clear, satisfactory, and unequivocal.

4.Such contracts are on their face void as within the statute of frauds, because not in writing, and, even though proved by clear and satisfactory evidence, they are not enforceable unless there has been such performance as the law requires.

5.The thing done, constituting performance, must be such as is referable solely to the contract sought to be enforced, and not such as might be referable to some other and different contract-something that the claimant would not have done unless on account of the agreement and with the direct view to its performance--so that nonperformance by the other party would amount to fraud upon him.

6.The burden in the light of these rules has devolved upon the plaintiff to prove (1) an oral contract the terms of which are clear, satisfactory, and unequivocal, and (2) that his acts constituting performance were such as were referable solely to the contract sought to be enforced, and not such as might have been referable to some other or different contract.

7.Evidence of declarations of a deceased person, concerning a parol contract, does not amount to direct proof of the facts claimed to have been admitted by those declarations.Such evidence, when not supported by other evidence, is generally entitled to but little weight.

8.Each case is to be determined from the facts, circumstances, and conditions as presented therein.

Tomek & Tomek, David City, Harry S. Grimminger, Grand Island, for appellant.

Kirkpatrick & Dougherty, York, for appellee.

H. G. Wellensiek, Grand Island, for intervener-appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

CHAPPELL, Justice.

Plaintiff, J. W. O'Neal, known generally as Walter or Walt J. O'Neal, brought this action in equity against defendants, The First Trust Company of York, Nebraska, a corporation, as the executor of the estate of Irving H. Lanyon, deceased, and Leroy Davis, trust officer of said corporation.He sought by the action to obtain specific performance of an alleged oral contract entered into by plaintiff and Irving H. Lanyon in the latter part of May 1939, whereby it was agreed that if plaintiff would furnish and supply Irving H. Lanyon with care, labor, services, attention, meals, hired help, transportation, and companionship during Irving H. Lanyon's lifetime, he would leave one-half of all his property to plaintiff.Plaintiff specifically alleged that he had duly performed, furnished, and supplied each and all of such alleged services during the lifetime of Irving H. Lanyon until his death August 23, 1949, and that plaintiff was never recompensed therefor by Irving H. Lanyon, although as indicated by his last will, executed February 19, 1948, and a codicil thereto executed June 14, 1949, he intended to do so.Ronald Kenneth Lanyon, on behalf of himself and other beneficiaries named in the last will, was permitted to intervene.Insofar as important here, such intervener and defendants filed answers traversing the material allegations of plaintiff's petition, and plaintiff's replies thereto denied generally.

The cause then proceeded to trial of the issues presented, and at conclusion of plaintiff's evidence, defendants moved to dismiss plaintiff's petition because plaintiff had not sustained the burden of proof as required by law in such cases, and that the evidence was insufficient to sustain any judgment against defendants.Thereupon the trial court sustained defendants' motion, saying: 'I think you have failed to sustain the burden to prove any contract and I think you have failed to prove by clear and convincing evidence that there was any agreement of any kind.'Thereupon the court rendered judgment accordingly for defendants and dismissed plaintiff's petition at plaintiff's cost.

Plaintiff's motion for new trial was overruled and he appealed, assigning that: (1) The judgment was contrary to the evidence and law; and (2)the trial court erred in striking from the record all of the evidence of Nellie J. O'Neal, plaintiff's wife.We sustain the last assignment, but upon trial de novo, under elementary rules with relation thereto, conclude that the judgment should be affirmed.

At the outset plaintiff argued that by its answer defendants admitted the alleged contract, its terms included therein, and performance thereof.Such contention has no merit.

In that connection, defendants, among other things, denied generally, and then alleged in their answer: 'For further and separate defense, these answering defendants aver that said pretended and purported contract is oral with no note or memorandum in writing and by reason thereof is within the statute of frauds and void.'(Italics supplied.)

In Barry v. Barry, 147 Neb. 1067, 26 N.W.2d 1, 2, this court held: 'An admission in an answer does not extend beyond the intendment of the admission as clearly disclosed by its context.'In Powell v. Yeazel, 46 Neb. 225, 64 N.W. 695, 697, it is said: 'The word 'pretended,' used in such a connection, signifies something falsely assumed; something claimed contrary to the truth of the matter.'Black's Law Dictionary (3d ed.), p. 1411, cites such latter case and others in defining 'pretend' as: 'To feign or simulate; to hold that out as real which is false or baseless.'Also, as stated in General Talking Pictures Corp. v. Hyatt, 114 Utah 362, 199 P.2d 147, 149, with reference to a comparable context: 'The implication of the word 'purported' is that something is deficient or amiss; everything is not as it is intended to be.'See, also, 73 C.J.S., Purport, p. 1259.In the light of the foregoing, we conclude that defendants in their answer did not admit the alleged contract or the terms thereof.

We turn then to plaintiff's contention that under the statute and cited decisions of this court, defendants also admitted that plaintiff performed the terms of the contract.In that regard, he cites and relies upon section 25-836, R.R.S.1943, Peters v. Wilks, 151 Neb. 861, 39 N.W.2d 793, and other cases wherein plaintiffs pleaded performance in general terms and defendants relied upon a general denial.In such situations we have held that if defendant relies upon non-performance as a defense he must allege that fact, and in pleading non-performance he must allege the facts which constitute the condition and the breach in his answer.Such authorities are clearly distinguishable.Herein, plaintiff did not plead performance in general terms but specifically, item by item, and defendants did not admit the contract or its terms as in Cartwright & Wilson Construction Co. v. Smith, 155 Neb. 431, 53 N.W.2d 274, andMorearty v. City of McCook, 117 Neb. 113, 219 N.W. 839, Id., 119 Neb. 202, 228 N.W. 367, relied upon by plaintiff.We conclude that under the circumstances presented here, defendants did not admit performance.

The testimony of Nellie J. O'Neal, plaintiff's wife, regarding transactions and conversations with deceased, was stricken by the trial court upon the ground that it was barred by the provisions of section 25-1202, R.R.S.1943.In doing so we believe the trial court erred.Concededly, all of the real estate belonging to the estate had been theretofore converted into money as provided in the will of deceased, and, as alleged by plaintiff, was held in trust by the executor for the benefit of creditors, legatees, and claimants.As a witness for plaintiff, she testified that deceased never promised to leave her any of his estate, and the record discloses without any fraud or mistake that she affirmatively disclaimed any interest in the subject matter or funds involved.She was not a party in the action and had no direct legal interest in the funds.We have held that even a party to an action adverse to the representative of a deceased person who, without fraud or mistake, disclaims all interest in the subject matter of the action and is thereby estopped from asserting any claim thereto, is a competent witness.Brooks v. Brooks, 105 Neb. 235, 180 N.W. 41;In re Estate of Tilton, 129 Neb. 872, 263 N.W. 217;Goodwin v. Freadrich, 135 Neb. 203, 280 N.W. 917.It is also the rule that a witness is not barred by section 25-1202, R.R.S.1943, from testifying in such actions wherein the witness is not a party to the litigation and has no direct interest in and will not gain or lose by the result of the suit.Parker v. Wells, 68 Neb. 647, 94 N.W. 717;Nelson v. Nelson, 133 Neb. 458, 275 N.W. 829;Craig v. Seebecker, 135 Neb. 221, 280 N.W. 913.Therefore, in disposing of this case de novo, all competent evidence given by Nellie J. O'Neal will be considered in the same manner as all other such evidence.

We turn finally to the primary question of whether or not the evidence adduced by plaintiff was sufficient to sustain any judgment for plaintiff.We conclude that it was not.In that regard, as recently as Peterson v. Peterson, 158 Neb. 551, 63 N.W.2d 858, 859, this court, citing numerous cases beginning with Overlander v. Ware, 102 Neb. 216, 166 N.W. 611, held: 'Where one is claiming the estate of a person deceased under an alleged oral contract, the evidence of...