Nowack v. Berger

• Decision Date: 03 March 1896
• Parties: Nowack v. Berger, Executor, et al., Appellants
• Court: Missouri Supreme Court

34 S.W. 489

133 Mo. 24

Nowack v. Berger, Executor, et al., Appellants

Supreme Court of Missouri, Second Division

March 3, 1896

Appeal from Gasconade Circuit Court. -- Hon. Rudolph Hirzel, Judge.

In this proceeding for specific performance, it is conceded by plaintiff that the abstract of pleadings prepared by defendants is correct, which sets forth:

"1. That he, the said Eberhard H. Schweer, should take, adopt support, and treat her son, this petitioner, at all times, as his own natural child, and that plaintiff should at all times perform the duties toward said Schweer due from children toward parents.

"2. That in case there should be no children born under his marriage with the said Augusta, that then the plaintiff should be sole heir to all the estate said Eberhard H Schweer should have at his death, subject to the statutory legal rights of plaintiff's mother as widow; and that in case there should be children born of said marriage, that then plaintiff, upon the death of said Schweer, should receive and be given a share in the estate equal to what one of said Eberhard H. Schweer's own natural children would receive in case he were to die intestate; and that said Schweer should, during his lifetime, by last will or other means of conveyance, make disposition of his property accordingly."

That pursuant to said terms, said Augusta and said Schweer were married on the tenth day of August, 1864; that said Schweer thereupon assumed control of plaintiff. That said Schweer required of plaintiff such services, and that plaintiff rendered to Schweer such services as are due from a child to a parent. That plaintiff continued to live with Schweer until he approached his majority, when he was by Schweer induced to marry and to move onto a tract of land described in the petition, being the same tract on which plaintiff now lives that the marriage between the said Schweer and plaintiff's mother was dissolved by the death of Schweer on the day of February, 1892; that there were born of said marriage three children -- defendants Henry E., Fred W., and Ferdinand Schweer; that the said Schweer did not in his lifetime make any provision for plaintiff in accordance with the alleged contract; that on the contrary, he left a last will and testament whereby he devised and bequeathed to each of his three sons certain real estate and personal property and to his widow, defendant Augusta Schweer, such of his estate as she would have been entitled to in case he had died intestate; and to plaintiff's children, defendants Annie A., Henry E., Matilda, and Tina Nowack, the said real estate on which plaintiff now lives, and gave nothing to plaintiff. That said will was probated and letters testamentary issued to the defendant William Berger, now in charge of the estate as executor. That the personal property left by said deceased was worth $ 13,635.11, and the real estate at least $ 27,000.

Specific performance of this contract was asked by plaintiff.

The second count states substantially the same facts as the first count, except that the alleged contract between E. H. Schweer and Augusta Nowack is stated in somewhat different terms, as follows: That the plaintiff should be legally adopted by the said Schweer and should perform all the duties and services toward said Schweer due from children toward parents; and that upon the death of the said Eberhard Schweer, if no children should be born of the marriage between the said Schweer and the said Augusta, plaintiff should inherit all the property which said Schweer might leave, and that if there should be children born of the marriage, that then plaintiff should have equal share with each of said children. And except that the second count states that when plaintiff approached the age of majority, said E. H. Schweer induced him to marry one Caroline Bartlett upon a promise to give to plaintiff the farm on which plaintiff now lives, and renewed his promise that at his death he would give plaintiff sufficient to make him equal with his own sons. That in reliance upon these promises, plaintiff married on the fifteenth day of September, 1882 (before he had fully arrived of age), and went into possession of said real estate and made lasting and valuable improvements thereon by clearing land, erecting buildings, and planting an orchard, and continued to cultivate the same to the commencement of this suit. That instead of giving plaintiff the said farm, said Schweer, by said last will, gave it to plaintiff's minor children, the defendants Annie, Henry, Matilda, and Tina Nowack, etc.

With the exception of the minor defendants, who answered by their guardian in usual way, the adult defendants answered as follows:

"1. A general denial of all the allegations of the petition.

"2. That the contract alleged in both counts of the petition, and all matters alleged touching and concerning the same, was and is and this action is brought to charge defendants upon an agreement in consideration of marriage, and no such agreement nor any note or memorandum thereof was or is in writing signed by the said E. H. Schweer, or by any other person by him thereto lawfully authorized."

Affirmed in part, reversed in part.

Kiskaddon & Meyer and John W. Booth for appellants.

(1) The alleged contracts of Eberhard Schweer, on which respondent's suit is founded, are (so far as there is any evidence in their terms) mere oral agreements, made in consideration of marriage. They are, therefore, void under the statute of fraud. Revised Statutes, 1889, secs. 5186, 6853, 6854. (2) Neither of the subsequent marriages was such a part performance as would take the case out of the statute. Each contract as proved is an entirety, and marriage being the sole consideration moving Schweer to make such, then no acts of the said Schweer, or any other person, subsequent to the marriage, can be considered a part performance. Finch v. Finch, 10 Ohio St. 501; Henry v. Henry, 27 Ohio St. 121; Caton v. Caton, 1 Chan. Ap. L. R. (Eng.) 137; Montacute v. Maxwell, 1 P. Wil. (Eng.) 618; McAnnulty v. McAnnulty, 120 Ill 26; Flenner v. Flenner, 29 Ind. 564; Wood v Savage, 2 Doug. (Mich.) 316; Brown v. Conger, 8 Hun (N. Y.), 625. (3) The acts claimed to be a part performance must be of such a character that they show: First. (Without proof of the terms of the contract), that there must be a contract of some kind between the parties; and, Second. (When the terms of the alleged contract are proved), that the acts are solely referable to that contract, and no other, and would not have been done had it not been for that contract. Paris v. Haley, 61 Mo. 453; Phillips v. Thompson, 1 Johns. Ch. (N. Y.) 131, 149; Rogers v. Wolfe, 104 Mo. 1; Charpiot v. Sigerson, 25 Mo. 63; Sitton v. Shipp, 65 Mo. 297; Browne on Frauds [4 Ed.], sec. 454, et seq.; William v. Morris, 95 U.S. 444; Agnew on Stat. Frauds, 471; Dung v. Parker, 52 N.Y. 494; Emmel v. Hayes, 102 Mo. 186. (4) Where a stepfather assumes the status of a parent toward a stepchild, the presumption is that they hold toward each other the relation of parent and child. Services rendered for each other can not be referred to a contractual relation between them. No such relation will be presumed to exist, but the contrary. Schoul. Dom. Rel. [4 Ed.], sec. 273; Gillett v. Camp, 27 Mo. 541. (5) The terms of the alleged contract and the alleged acts of part performance must be clearly and definitely proved. Nothing can be left to mere inference. If an inference is allowable at all, it must be a necessary and inevitable inference, drawn from facts clearly and definitely proved. Veth v. Gierth, 92 Mo. 97; Taylor v. Williams, 45 Mo. 80; Paris v. Haley, 61 Mo. 453; Tedford v. Trimble, 87 Mo. 226; Wendover v. Baker, 121 Mo. 273. (6) And the contract must be established in all its terms beyond a reasonable doubt. Johnson v. Quarles, 46 Mo. 423; Berry v. Hartzell, 91 Mo. 132. (7) There is no mutuality in the contract proved. It is alleged in the petition that it was part of the contract that plaintiff was to discharge the duties which a child renders to a parent, but there is no evidence to support this allegation. The so-called contract was a mere promise on the part of Schweer, without a corresponding duty on the part of the plaintiff. Glass v. Rowe, 103 Mo. 513; Wat. on Spec. Perf., sec. 199. (8) The alleged acceptance by plaintiff of the farm given to him by his stepfather in alleged consideration of his marriage with Bartlett's daughter, and without anything indicating that this farm was to be a part of the property to which plaintiff would be entitled, is inconsistent with the plaintiff's contention that he was to have an equal share with Schweer's children in all of Schweer's property, and is a waiver of the alleged earlier contract. Tolson v. Tolson, 10 Mo. 736; Fry on Spec. Perf. [3 Am. Ed.], secs. 1003, 1008, 1015, 1017. (9) On the evidence in this case, the minor defendants ought not to be deprived of their land, devised to them by Schweer, on the ground that the plaintiff (their father) had received it from Schweer, in consideration of marriage, and had made valuable and lasting improvements. The improvements, if any, were merely made in the ordinary course of husbandry (and not very good husbandry, at that), and while respondent was in gratuitous enjoyment of the profits of the land. Emmel v. Hayes, 102 Mo. 186; Taylor v. Von Schroeder, 107 Mo. 206; Johnson v. Hurley, 115 Mo. 513; Browne on Frauds, pp. 480, 488, 490. (10) "The contract must not only be proved in a general way, but its terms must be so precise and exact that neither party could reasonably misunderstand them; and there must be a strict correspondence between the alleged terms of the contract, and the proof by which it is sought to be established." Wendover v....