Powers v. Mercantile-Commerce Bank & Trust Co.
| Decision Date | 07 January 1949 |
| Docket Number | 40859 |
| Citation | 217 S.W.2d 375 |
| Parties | Frances Powers, Respondent, v. Mercantile-Commerce Bank & Trust Company, Defendant, Martin J. Powers, Defendant-Appellant |
| Court | Missouri Supreme Court |
From the Circuit Court of the City of St. Louis Civil Appeal Judge Joseph J. Ward
Affirmed
Frances Powers brought this suit in equity seeking specific performance of an alleged oral contract to convey real estate. The trial court granted plaintiff the relief prayed for and defendant, Martin J. Powers, appealed.
The defendants named were the Mercantile-Commerce Bank & Trust Company, executor of the last will and testament of Mary Powers, and Martin J. Powers, named as residuary legatee in the will. Plaintiff alleged in her petition that she had agreed with Mary Powers, for and in consideration of Mary deeding to her property located at 5319 Delor Street, St Louis, Missouri, to live with her during her lifetime, act as companion and nurse, keep and provide a home for her and perform all of the household duties, such as cooking cleaning and laundry work. She further alleged that she fully performed her part of the contract and that Mary Powers died without deeding the property to her. It was alleged in the petition that Mary Powers had executed a will wherein Martin J. Powers, a cousin of the husband of Mary, was made the residuary legatee; that the property in question was not specifically mentioned in the will.
Appellant Martin Powers, briefed five points urging a reversal of the trial court's decree. These may be reduced to two main propositions: First, that the evidence of the existence of an oral contract was insufficient to justify specific performance; second, that the services performed, if any, were of such a nature that full compensation could be made in money and that to decree specific performance would be unfair and inequitable.
The relationship existing between the parties was that plaintiff, Frances Powers, was the wife of Peter Powers and Mary Powers was the wife of John J. Powers. Peter and John J. were brothers. John J. died about 1932 and Peter died in August, 1944. The defendant, Martin Powers, was a cousin of Peter and John J. We infer from the evidence that during his lifetime John J. Powers accumulated some property and built a home for his family. One son was born to the union who died about the year 1934. We fail to note anywhere in the record the exact dates of the deaths of the son and father. The evidence reveals that Mary was very lonely and keenly felt the loss of her son and husband. John J. Powers and the son were engaged in the business of taking wagers on horse races. Defendant, Martin Powers, testified that he was in that business, having acquired and learned it from and through his cousin John J. After Mary became a widow Martin often visited her and at times was called on for advice. About December, 1942, Mary sold her home and the evidence reveals that she regretted having done this very much; that she attempted to repurchase the property and offered to pay the purchaser an extra $1000. The offer was refused. We learn from the evidence of defendant Powers that after Mary sold her home she lived with plaintiff, Frances Powers, for about six weeks then went to defendant's home and lived there for about three months, then to a sister's, Hannah Burrichter, where she stayed a short time and then to a home for elderly persons. The sister Hannah testified that Mary stayed at two different homes for elderly people. Finally Mary went back to the home of plaintiff who was then living with her husband on Adkins Avenue. In the summer of 1944 Mary purchased a home on Delor Street which is the subject matter of this lawsuit. Plaintiff's husband died shortly thereafter and in August, 1944, plaintiff and Mary moved to the Delor Street property and lived there until Mary's death in August, 1946. It was about the time the Delor Street property was being purchased that the alleged contract sought to be enforced was first mentioned by Mary on the one side and plaintiff and her husband on the other. Plaintiff not being a competent witness to testify with relation to the contract, objection to her testimony was sustained. We will review briefly the evidence to sustain plaintiff's contention.
Mayme Dauer, a cousin of plaintiff, testified as follows concerning what the deceased said as to a contract with plaintiff:
"A. Yes, as to Pete and Frances, she said the agreement was made that this house and all of the furnishings would be Frances' and Pete's, and they would take care of her for the rest of her life and give me a home, and be good to me for the rest of my life.
She further testified that this occurred about September, 1945, when plaintiff was in California on a visit. Arthur Kribben testified that on one occasion in July, 1946, Mary Powers in a conversation said to him: "'I have given Frances this house and my furniture for taking care of me for the rest of my life.'" Another witness, Mrs. Charles Reed, testified that she visited Mary Powers on various occasions and at one time, when Frances was not there, Mary told her, in speaking of Frances:
Mrs. Lena Bock testified that in a conversation she had with Mary she asked her what she was going to do for Frances and Mary said: " " The witness, Arthur Kribben, above mentioned, also testified that in August, 1946, he took Mary and Frances to the cemetery, at Mary's request, with the intention of visiting the graves of John J. Powers and the son; that while driving to the cemetery Mary Powers asked him if he could take her down town the next morning and he agreed to do so; that Mary said, " " He further testified that when they arrived at the cemetery Mary alighted from the car, took about two steps, collapsed and died.
We have quoted from only a few of many witnesses who testified concerning statements made by Mary Powers that she had agreed to deed the property and furniture to plaintiff pursuant to an understanding that plaintiff would take care of her the balance of her life. The record contains but meager evidence to the contrary. We also find in the record a notation written on a slip of paper, dated July 29, 1946, headed "Mrs. M. Powers." The note states, "My agreement is that Frances Powers gets this house, 5319 Delor and furniture and what in it." It was signed, "Mrs. J.J. Powers." There was a dispute as to whether this note and signature were written by the deceased. One handwriting expert testified that they were, another that they were not. We need not comment on or consider this paper because the record contains an abundance of evidence supporting plaintiff's theory that an oral contract existed.
Appellant argues that much of the evidence tended to show that Mary wished to deed the property as a gift and therefore specific performance should not be decreed. Our conclusion, however is to the contrary. We agree with the finding of the trial court. We have reached the conclusion that the evidence of an agreement is cogent and convincing. Then too the surrounding circumstances support plaintiff's theory. All witnesses for both plaintiff and the defendants agreed that Mary Powers was very much dissatisfied after she sold her home and did not seem to be able to adjust herself in her then circumstances. The defendant Powers readily...
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