Neary v. Markham, 3204.

• Decision Date: 18 June 1946
• Docket Number: No. 3204.,3204.
• Citation: 155 F.2d 485
• Parties: NEARY v. MARKHAM et al.
• Court: U.S. Court of Appeals — Tenth Circuit

155 F.2d 485 (1946)

NEARY v. MARKHAM et al.

No. 3204.

Circuit Court of Appeals, Tenth Circuit.

May 15, 1946.

Rehearing Denied June 18, 1946.

Charles A. Moon, of Muskogee, Okl. (Joseph C. Stone, of Muskogee, Okl., on the brief), for appellant.

Marvin Shilling, Asst. U. S. Atty., and Kelly Brown, both of Muskogee, Okl. (Cleon A. Summers, U. S. Atty., of Muskogee, Okl., on the brief), for appellees.

Before PHILLIPS, BRATTON and HUXMAN, Circuit Judges.

HUXMAN, Circuit Judge.

This action was instituted by the Alien Property Custodian of the United States in the United States District Court for the Eastern District of Oklahoma against Harry G. Davis, executor of the estate of Henry Drost, deceased, Wilhelmia Langenberg, a resident and citizen of Germany, Evalyn M. Neary, and Jack Thornbrough, seeking a decree adjudging that he was entitled to the legacy of Wilhelmia Langenberg, and that Evalyn Neary had no right or interest therein. Davis answered, admitting the material allegations of the complaint, and asked similar relief against Evalyn Neary. Evalyn Neary filed an answer claiming the entire estate, less some small bequests, under a written contract signed by Drost. She prosecutes this appeal from a judgment adverse to her claims.

Henry Drost, a naturalized citizen of German birth, worked in the railroad shops at Muskogee, Oklahoma. During the period of his employment and after he retired, he engaged in making small loans to his fellow employees and acquaintances, and in this way, by frugality and thrift, accumulated an estate which, at the time of his death, was worth approximately $35,000. The defendant Harry G. Davis was a personal friend and the attorney for Drost. In 1935 he informed Drost that he could no longer continue to look after his small business affairs. He agreed to continue to represent him in his more important matters, but advised him to get some one else to represent him in his small loans. In 1936 Drost arranged with T. E. Neary, an attorney at Muskogee, to represent him when necessary with his small loans, and also arranged with Evalyn M. Neary, who was doing clerical work for her husband, to do such clerical work as was necessary in making small loans, making collections, issuing receipts, and other related services. Thereafter he had Neary represent him in several small matters, but continued to place his larger and more important matters with Davis. This arrangement continued until March 11, 1939. During this time Drost paid both Mr. and Mrs. Neary for such services as they performed.

On March 11, 1939, Neary prepared a written contract for his client, Drost, with his own wife, which is the basis of her claim in this action. The contract was signed by both Evalyn Neary and Henry Drost. In it Mrs. Neary agreed to remain in Muskogee as long as Drost lived, and "continue in his employment", and further agreed to have her husband, who as Drost's attorney had prepared the contract, to remain and continue his services, without compensation to either of them, in return for which Drost agreed to devise, bequeath and leave by will all his property, except certain small bequests, to Mrs. Neary.

Thereafter, on January 4, 1940, Drost executed a will in which he left all of his property, except bequests of approximately $500, to Mrs. Neary. But thereafter, on March 21, 1942, he executed a codicil to a prior will, of May 21, 1934, by which he revoked the will of January 4, 1940, and reaffirmed the will to which the codicil was attached. In this will he made some small bequests and left the remainder of his estate to his niece, Wilhelmia Langenberg, in Germany, and to Harry G. Davis, his regular attorney. Davis was made executor of the estate.

Mrs. Neary alleged in her answer that by oral contract entered into in 1936 there was contemplated, and thereafter in fact did exist, a filial relationship between Drost and her and her family. She further alleged that she and her husband refrained from going to Portland, Oregon, to establish themselves in business there by reason of her agreement with Drost, and that a business opportunity in Oregon was declined and that she had suffered irreparable loss, for which no remedy existed other than enforcement of the agreement. The court found that no contract providing for the filial relationship between Drost and Mrs. Neary existed. The court further found that if the Nearys ever contemplated moving to Oregon, it was in the year 1936, long prior to the execution of the written agreement, and the evidence amply supports this finding. The contention that a filial relationship existed between Mrs. Neary and Drost was apparently abandoned, because it was not adverted to in the bill of particulars, and there is a complete lack of evidence to establish any such relationship.

The trial court held that the contract was an oral contract under the Oklahoma decisions, because oral testimony was required to establish the nature of the services to be performed by Mrs. Neary, and that since they were susceptible of exact measurement in money's worth, specific performance should be denied. The court further held that the right to recover the value of the services was barred by Mrs. Neary's failure to file the claim within a year as required by Oklahoma law.

It is not necessary to determine whether the court correctly construed the contract to be an oral contract under the Oklahoma decisions, because, in any event, the decision of the trial court was correct. For the purpose of this opinion we will therefore assume that the writing was sufficient to constitute a written contract. Specific performance is an equitable remedy and the right thereto is not absolute like the right to recover a legal judgment.¹ Whether specific performance will be granted rests in the exercise of a sound judicial discretion by a court of equity. As stated by the authorities, specific performance will be granted when it is apparent from a view of all the circumstances of the particular case that it will subserve the ends of justice. As stated by Pomeroy, supra, § 35(a): "It is not sufficient to call forth the...