Peterson v. Peterson

• Decision Date: 16 April 1954
• Docket Number: No. 33499,33499
• Citation: 158 Neb. 551,63 N.W.2d 858
• Parties: PETERSON v. PETERSON et al.
• Court: Nebraska Supreme Court

Page 858

63 N.W.2d 858

158 Neb. 551

PETERSON v.PETERSON et al.

No. 33499.

Supreme Court of Nebraska.

April 16, 1954.

Syllabus by the Court.

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

2.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.

3.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.

4.The burden in the light of this rule 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.

Edwin T. Mars and John C. Mullen, Omaha, for appellant.

Fraser, Connolly, Crofoot & Wenstrand, Merrow & Murphy, Omaha, for appellees.

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

WENKE, Justice.

John Peterson brought this action in the district court for Douglas County against the executors of, the trustees under, and the devisees and legatees named in the last will and testament, and codicil thereto, of Edward Peterson, deceased, which last will and testament, and codicil thereto, had been allowed and admitted to probate by the county court of Douglas County.The purpose of the action is to enforce an alleged oral agreement claimed to have been entered into by and between the plaintiff and deceased.After a trial the court found generally for the defendants and dismissed plaintiff's action.Plaintiff thereupon filed a motion for new trial and has taken this appeal from the overruling thereof.

Appellant alleges:

'That on or about the 14th day of October, 1931, Edward Peterson and John Peterson made an oral agreement, the terms of which are as follows, to-wit:

'That John Peterson release any and all claims or refrain from the prosecution of any claims he may have against Edward Peterson for and by virtue of the loss of his leg and subsequent disability.

'That John Peterson be and act as a companion to said Edward Peterson and perform such personal services as his physical condition might permit, for the duration of Edward Peterson's natural life.

'That in consideration of the foregoing the said Edward Peterson promised and agreed

'1.To provide for the financial requirements of said John Peterson, as to shelter, food, clothing and other expenses incidental to John Peterson's standard of living for the rest of said John Peterson's natural life.

'2.That said Edward Peterson further promised and agreed to make and execute a Last Will and Testament bequeathing and devising unto said John Peterson an amount of money or property, sufficient to provide for the support and maintenance of said John Peterson for the rest of his natural life, in the event that said Edward Peterson should pre-decease said John Peterson, in an agreed amount of $250.00 per month.

'3.To further devise and bequeath aforesaid to said John Peterson, a further sum of money to compensate said John Peterson for the loss of his leg, and for the pain and suffering he would be forced to endure, in the sum of $20,000.00.

'4.To further devise unto said John Peterson a home for himself or in lieu thereof to bequeath him a sum sufficient to purchase such home of the type and value of which said John Peterson had been accustomed to live while with his brother, Edward Peterson.'

The last will and testament of Edward Peterson, deceased, together with the codicil thereto, contains no provision for the benefit of appellant to carry out the terms of this alleged agreement nor was any provision made by the deceased during his lifetime for that purpose.

The district court has jurisdiction of an action for the specific performance of such a contract whether it is to be performed during the lifetime or by will.Kofka v. Rosicky, 41 Neb. 328, 59 N.W. 788, 25 L.R.A. 207, 43 Am.St.Rep. 685;Lacey v. Zeigler, 98 Neb. 380, 152 N.W. 792;Craig v. Seebecker, 135 Neb. 221, 280 N.W. 913;Peters v. Wilks, 151 Neb. 861, 39 N.W.2d 793;Sopcich v. Tangeman, 153 Neb. 506, 45 N.W.2d 478.

As held in Kofka v. Rosicky, supra: 'Specific performance of a parol contract will be enforced by a court of equity where one party has wholly and the other partly performed it, and its nonfulfillment on the one hand would amount to a fraud on the party who has fully performed it.'See, also, Weber v. Crabill, 123 Neb. 88, 242 N.W. 267;Craig v. Seebecker, supra.

The case comes to this court for trial de novo.Casper v. Frey, 152 Neb. 441, 41 N.W.2d 363;Sopcich v. Tangeman, supra.

Each case must, of course, be determined from the facts, circumstances, and conditions established by the evidence.Damkroeger v. James, 95 Neb. 784, 146 N.W. 936;Lunkwitz v. Guffey, 150 Neb. 247, 34 N.W.2d 256;Peters v. Wilks, supra;Casper v. Frey, supra;Sopcich v. Tangeman, supra.

In this regard in Lunkwitz v. Guffey, supra, we have announced the following principles as applicable:

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

'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.

'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.

'The burden in the light of this rule has devolved upon the plaintiff(1) to prove 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.'

See, also, Overlander v. Ware, 102 Neb. 216, 166 N.W. 611;Lintz v. Apking, 145 Neb. 714, 18 N.W.2d 55;Caspers v. Frerichs, 146 Neb. 740, 21 N.W.2d 513;Casper v. Frey, supra;Nelson v. Glidewell, 155 Neb. 372, 51 N.W.2d 892;Flessner v. Wenquist, 156 Neb. 378, 56 N.W.2d 294;Rush v. Heinisch, 157 Neb. 545, 60 N.W.2d 608.

For the purpose of discussion we shall refer to appellant...