Nibler v. Coltrane, No. 44115

CourtUnited States State Supreme Court of Missouri
Writing for the CourtDALTON; All concur except WESTHUES; PER CURIAM
Citation275 S.W.2d 270
PartiesLaura NIBLER, Respondent, v. Victor O. COLTRANE, Executor of the Estate of Rose M. Davidson, deceased, Appellant
Decision Date10 January 1955
Docket NumberNo. 44115,No. 1

Page 270

275 S.W.2d 270
Laura NIBLER, Respondent,
v.
Victor O. COLTRANE, Executor of the Estate of Rose M.
Davidson, deceased, Appellant.
No. 44115.
Supreme Court of Missouri, Division No. 1.
Jan. 10, 1955.
Opinion Modified Feb. 14, 1955.
Motion for Rehearing or to Transfer to Court en Banc Denied
Feb. 14, 1955.

Page 271

Patterson & Patterson, Kirby W. Patterson, Springfield, for appellant.

E. C. Hamlin, C. M. Wantuck, Springfield, for respondent.

DALTON, Presiding Judge.

Action in two counts. The first count is for $55,899.26 damages for breach of an alleged written contract to transfer property in consideration of personal services and the second count is for $50,000, alleged to be the reasonable value of the services actually rendered under the written contract. The cause was submitted to a jury on the second county and veridct and judgment were for plaintiff for $11,250. The verdict was returned September 17, 1953, and on September 26, 1953, defendant filed his motion for judgment and his motion for new trial. Thereafter, on November 5,

Page 272

1953, the trial court overruled the motion for judgment and entered the following order as to the motion for new trial, 'it is ordered by the Court that if plaintiff will remit $3,750 from the amount of the judgment entered in this cause within ten days from the date of this order, the motion for a new trial will be overruled, otherwise it will be sustained on the ground that the verdict is excessive, and a new trial ordered on the issue of the amount of plaintiff's damages only' On November 14, 1950, the trial court extended the time within which plaintiff would be permitted to make the remittitur 'until November 21, 1953.' On the same date (November 14, 1953) defendant filed his notice of appeal to this court. The remittitur was not made.

Respondent has moved to dismiss the appeal and contends that the appeal was prematurely taken before a final judgment was entered; that the appeal divested the trial court of jurisdiction and 'made it impossible for plaintiff to remit even if she had so desired'; and that appellant's brief does not contain a fair and concise statement of the facts without argument. The transcript was not filed in this court until May 10, 1954 and the trial court retained jurisdiction until that date. The motion is overruled. Section 512.050 and 512.130 RSMo 1949, V.A.M.S.; State ex rel. Thompson v. Terte, 357 Mo. 229, 207 S.W.2d 487, 490(2); 42 V.A.M.S. Supreme Court Rule 3.24 and 3.25. Appellant's statement sufficiently complies with Supreme Court Rule 1.08(a)(2).

Appellant contends (1) that the petition does not state a claim upon which relief can be granted; (2) that the court erred (a) in the admission of evidence; (b) in the exclusion of evidence; (c) in overruling defendant's motions for a directed verdict at the close of all the evidence; (d) in overruling defendant's after-trial motion for judgment in his favor; (e) in giving instructions 1 and 2 requested by plaintiff; (f) in permitting plaintiff's counsel to make improper argument; and (g) in approving an award of $7,500.

As stated, the petition was in two counts, the first is based upon an express contract and the second re-alleges the contract and seeks to recover the reasonable value of the services rendered. Neither count was attacked by motion to dismiss. The answer to both counts denied the contract, denied that any services were performed thereunder and alleged that any services rendered were fully paid for at the time. At the close of all the evidence defendant filed a motion to require plaintiff to elect on which count she would proceed, since the counts were inconsistent and recovery could be had on only one. The motion was overruled. Appellant concedes that, apparently from the form of instruction 1, the case was submitted on the second count, which prays recovery for the reasonable value of plaintiff's services. Respondent agrees that the case was submitted to the jury only on the second count. We think the record sufficiently shows that the cause was not submitted on the first count and it is only necessary to determine whether the second count states a claim upon which relief can be granted.

The second count, including allegations adopted from the first count, states that defendant is the executor of the estate of Rose M. Davidson, deceased; that Theresa F. Nibler and Rose M. Davidson, both now deceased, were sisters and lived together in one household in Springfield, Missouri; that plaintiff is their niece; that in August 1946, after lengthy negotiations, the plaintiff entered into a written contract with her said aunts whereby it was agreed that if plaintiff would move from California, where she was then living, to Springfield, Missouri, and live with her said aunts and become part of their household, assuming its responsibilities, and if she would not leave without their consent and would assist in the store operated by the aunts and if she would not marry nor work for anyone else without their consent during their lifetime that plaintiff should receive whatever property the surviving aunt should have at her death.

It was further alleged that the written contract consisted of a series of letters from

Page 273

the two aunts to plaintiff; that plaintiff accepted the offer in writing by letter to the two aunts and by coming to Springfield and assuming the duties and responsibilities required of her by the contract; that the said correspondence from the aunts had been lost or destroyed and none of it was now in plaintiff's possession, nor had plaintiff had possession of her letter of acceptance since it had been mailed; that plaintiff had fully performed all of the terms and conditions of the contract on her part, except for a short period following the death of Theresa Nibler, when performance was purposely prevented by the wrongful acts of Rose M. Davidson; that plaintiff worked in the store, performed household tasks, cared for her two aunts during their illness, worked for no one else and did not marry; that Theresa died February 12, 1950 and devised and bequeathed all her property to Rose M. Davidson, who died in April 1952, and failed to provide for plaintiff, although leaving an estate of $55,800.69; that defendant-executor has refused to pay plaintiff any sum or to transfer or assign any property of the estate to her; and that the reasonable value of the services performed by plaintiff pursuant to the contract is the sum of $50,000.00, which sum defendant has failed and refused to pay, wherefore plaintiff prays 'judgment against defendant in the sum of $50,000 for her services as rendered.'

Appellant insists that 'the petition' attempts to base an action at law upon an alleged express contract invalid under the statute of wills'; that such cannot be done; that 'where a petition declares upon an express contract, there can be no recovery upon the theory of quantum meruit, by mere proof of the reasonable value of the alleged services'; that the petition 'seeks recovery upon an alleged contract of which one of the provisions, inseparable from the rest, was void as against public policy' as in restraint of marriage; and that it is immaterial that the contract may be supported by other valuable consideration.

Appellant may raise, on appeal, the question of the sufficiency of the petition to state a claim upon which relief can be granted whether that question was presented to or ruled upon by the trial court. Sec. 512.160(1) RSMo 1949, V.A.M.S. Under the allegations of the second count, which alone was submitted to the jury, plaintiff sought to recover the reasonable value of the services of the type and kind mentioned and rendered under the circumstances alleged. From the facts alleged an inference can be drawn that the services were not gratuitously rendered and that they had not been paid for. It was therefore wholly immaterial that the express contract alleged in the first count or re-incorporated in the second count may have been void and unenforceable for the reasons mentioned by appellant. The rule is stated in 58 Am.Jur. 539, Work and Labor, Sec. 35, as follows: 'When one furnishes labor to another under a contract which, for reasons not prejudicial to the former, is void and of no effect, he may recover the value of his services on a quantum meruit as a benefit to the person receiving them. The law recognizes that services not gratuitous, and neither mala in se nor mala prohibita, rendered under an agreement that is invalid or unenforceable, furnish a basis for an implied or constructive contract to pay their reasonable value.' And further, 58 Am.Jur. 541, Work and Labor, Sec. 38, '* * * although there is authority to the contrary, the weight of authority supports the proposition that if the services are not themselves illegal, either intrinsically or by reason of the circumstances under which they are rendered, recovery may be had on a quantum meruit for their reasonable value, although the contract is for other reasons illegal. This is true where one of a number of acts contemplated is not malum in se but merely malum prohibitum. Thus, although the express contract is in no respect enforceable, either as a foundation for a suit or a cross action or as a defense to the original action, or in any other manner, recovery is proper on quantum meruit if the contract is repudiated before the unlawful act is performed.' And see 71 C.J., p. 84, Work and Labor, Secs. 45 and 46; Wright v. Broome, 67 Mo.App. 32, 36. The allegations contained in

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the second count and incorporated therein by reference seem to meet the test set forth in Laughlin v. Boatmen's Nat. Bank of St. Louis, 354 Mo. 467, 189 S.W.2d 974, 978, where the court said: '* * * there are allegations of request, consideration, indebtedness, performance by the claimant, a demand and a claim for damages or allegations from which it could only be inferred that the services...

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6 practice notes
  • Lewis v. Bucyrus-Erie, Inc., BUCYRUS-ERI
    • United States
    • United States State Supreme Court of Missouri
    • October 13, 1981
    ...discretion is subject to reversal only in cases of clear abuse. Boehmer v. Boggiano, 412 S.W.2d 103, 110 (Mo.1967); Nibler v. Coltrane, 275 S.W.2d 270, 274 (Mo.1955); Scrivner v. American Car & Foundry Co., 50 S.W.2d 1001, 1008 (Mo. banc 1932); L.S. v. L.M.S., 538 S.W.2d 753, 755 (Mo.Ap......
  • Minor v. Lillard, No. 45144
    • United States
    • United States State Supreme Court of Missouri
    • March 12, 1956
    ...upon unjust enrichment. Murphy v. Pfeifer, Mo.App., 105 S.W.2d 39; In re Hukreda's Estate, Mo., 172 S.W.2d 824; Nibler v. Coltrane, Mo., 275 S.W.2d 270, 273-274; Vosburg v. Smith, Mo.App., 272 S.W.2d 297. While the claim, in a generic sense, may be analogous to an action upon an account, as......
  • Barber v. M. F. A. Milling Co., No. 9622
    • United States
    • Court of Appeal of Missouri (US)
    • April 15, 1976
    ...impossible to ascertain from reading the point what parts of the deposition defendant is claiming were inadmissible (Nibler v. Coltrane, 275 S.W.2d 270, 274(5) (Mo.1955); Lawson v. Cooper, 475 S.W.2d 442, 447(7) (Mo.App.1972); City of St. Louis v. Cook, 405 S.W.2d 545, 549(1) (Mo.App.1966);......
  • Douglas v. Hoeh, Nos. 39983
    • United States
    • Court of Appeal of Missouri (US)
    • February 19, 1980
    ...also, Rule 70.02(c). Rather, the general rule controls, which places the burden of showing prejudice upon defendants. Nibler v. Coltrane, 275 S.W.2d 270, 277 (Mo.1955); Van Dyke v. Major Tractor & Equipment Co., 557 S.W.2d 11, 13 (Mo.App.1977). Defendants carried this burden. The instru......
  • Request a trial to view additional results
15 cases
  • State ex rel. State Highway Commission v. Warner, No. 8062
    • United States
    • Missouri Court of Appeals
    • October 10, 1962
    ...87, 98(8)], and the requirements of the rule are not satisfied by discussion and references in the 'argument' [Nibler v. Coltrane, Mo., 275 S.W.2d 270, 274(5); State ex rel. State Highway Com'n. v. Harrison, Mo.App., 311 S.W.2d 104, 108(4)], for an appellate court has no duty to seine throu......
  • Lewis v. Bucyrus-Erie, Inc., BUCYRUS-ERI
    • United States
    • United States State Supreme Court of Missouri
    • October 13, 1981
    ...discretion is subject to reversal only in cases of clear abuse. Boehmer v. Boggiano, 412 S.W.2d 103, 110 (Mo.1967); Nibler v. Coltrane, 275 S.W.2d 270, 274 (Mo.1955); Scrivner v. American Car & Foundry Co., 50 S.W.2d 1001, 1008 (Mo. banc 1932); L.S. v. L.M.S., 538 S.W.2d 753, 755 (Mo.App.19......
  • Hoover v. Whisner, No. 8217
    • United States
    • Missouri Court of Appeals
    • December 2, 1963
    ...v. Sawtell, Mo.App., 286 S.W.2d 40, 42(4); Oertel v. John D. Streett & Co., Mo.App., 285 S.W.2d 87, 98(8). 3 Nibler v. Coltrane, Mo., 275 S.W.2d 270, 274(5); State ex rel. State Highway Com'n. v. Warner, Mo.App., 361 S.W.2d 159, 162(3); State ex rel. State Highway Com'n. v. Harrison, Mo.App......
  • Ashley v. Williams, No. 44633
    • United States
    • Missouri Supreme Court
    • September 12, 1955
    ...presumption arising out of the family relationship that the services were performed gratuitously. In the case of Nibler v. Coltrane, Mo., 275 S.W.2d 270, the agreement sued on was that the claimant, a niece, was to receive whatever property the survivor of two aunts should have at her death......
  • Request a trial to view additional results

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