Phillips v. Bishop

• Decision Date: 09 May 1914
• Docket Number: 18,713
• Citation: 140 P. 834,92 Kan. 313
• Parties: MARY BISHOP PHILLIPS, Appellee, v. NANCY BISHOP et al., Appellants
• Court: Kansas Supreme Court

140 P. 834

92 Kan. 313

MARY BISHOP PHILLIPS, Appellee, v. NANCY BISHOP et al., Appellants

No. 18,713

Supreme Court of Kansas

May 9, 1914

Decided January, 1914.

Appeal from Jackson district court; OSCAR RAINES, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CONTRACT--Relating to Personal Property--Part Performance--When Specific Performance Will be Decreed. Modern courts have shown a tendency to depart from the old rule that there can be no specific performance of a contract except for the conveyance of real estate, and where there has been part performance, and especially where the services rendered are of a peculiar character which the parties never intended to be measured by pecuniary standards, the courts recognize no distinction between personal property and real property and will grant relief in either case where there are no circumstances or conditions which render the claim inequitable.

2. SAME--Contract for Benefit of Minor Child--Contract Fully Performed by Minor--Specific Performance Decreed. In this case the testimony is held sufficient to sustain a finding that a written contract was made for the benefit of the plaintiff when she was two years old, between her father and childless neighbors, husband and wife, by which she was to be received into their family as their child, reared and cared for by them, and was to receive at their death all their property; that she had fully performed her part of the contract; that the husband died intestate; that the wife afterwards died having willed her personal property to the defendants, and therefore a decree for specific performance of the contract against the devisees and heirs at law is affirmed.

3. WRITTEN CONTRACT--Lost--Admission of Secondary Evidence of Contents Not Error. Where one who was in possession of a written contract testified to its loss and there was no objection to testimony as to the contents of the writing on the ground that a sufficient foundation had not been laid, the only objection being that the same was incompetent, the objection was properly overruled.

Joseph G. Waters, and John C. Waters, both of Topeka, for the appellants.

Charles Hayden, A. E. Crane, F. T. Woodburn, and E. A. Woodburn, all of Holton, for the appellee.

OPINION

PORTER, J.

The plaintiff is the daughter of Samuel and Permelia Slater. In 1872, when she was two years old, her mother died. H. P. Bishop and Catherine Bishop, his wife, were living at Holton at the time; they were about 40 years of age and had no children. They entered into a written contract with the father of the plaintiff by the terms of which they were to take the plaintiff as their own child, educate and provide for her, and at their death she was to have all their property; she was to take the name of Bishop, and it was agreed that her father, brothers and sisters were not to disclose their identity until she was grown. She lived with the Bishops as their child and never knew that she was not their daughter until she was past nineteen years of age. Soon after this she was married under the name of Bishop. H. P. Bishop died intestate in 1892. His widow, Catherine Bishop, sometime thereafter conveyed to plaintiff the home consisting of two lots in Holton and the household goods. Catherine Bishop died in 1911, being at the time the owner of considerable personal property, consisting of moneys, notes, bonds and mortgages. She had made a will devising all her property to the defendants, who are her relatives. The will was probated and an administrator of her estate appointed by the probate court. Plaintiff brought this action for specific performance of the contract.

In addition to a general denial, the answer alleged that there never had been any contract to make the plaintiff the legal heir of the Bishops but that she was taken by them to be raised as their child; that the Bishops had expended large sums of money in...