Rogers v. Casady

• Decision Date: 04 March 1938
• Docket Number: 30204
• Citation: 278 N.W. 267,134 Neb. 227
• Parties: ALPHA ROGERS, APPELLANT, v. GAYLE CASADY ET AL., APPELLEES
• Court: Nebraska Supreme Court

278 N.W. 267

134 Neb. 227

ALPHA ROGERS, APPELLANT, v. GAYLE CASADY ET AL., APPELLEES

No. 30204

Supreme Court of Nebraska

March 4, 1938

APPEAL from the district court for Lancaster county: FREDERICK E SHEPHERD, JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

1. Where it is sought to enforce an oral agreement of a person now deceased to convey or devise lands, the proof to establish the circumstances of such oral agreement must be clear, satisfactory and convincing.

2. Upon appeal of an action in equity, when the testimony of witnesses orally examined before the court on the vital issues is conflicting, this court will, while trying the case de novo, consider the fact that the trial court observed the witnesses and their manner of testifying, and must have accepted one version of the facts rather than the opposite.

3. A witness is not disqualified merely because of being related to the plaintiff; relationship to the adverse party may affect his credibility, but not his competency as a witness.

Appeal from District Court, Lancaster County; Shepherd, Judge.

Suit by Alpha Rogers against Gayle Casady, individually and as administrator of the estate of Fred W. Casady, deceased, and another for specific performance of an alleged oral contract. Judgment for defendants, and plaintiff appeals.

Affirmed.

William Niklaus, for appellant.

Jack Devoe and W. A. Robertson, contra.

Heard before GOSS, C. J., ROSE, DAY, PAINE, CARTER and MESSMORE JJ., and WILLIAM A. DAY, District Judge.

OPINION

WILLIAM A. DAY, District Judge.

This is an appeal from the district court for Lancaster county, Nebraska, from a judgment denying the plaintiff specific performance of an alleged oral contract between the plaintiff and Fred W. Casady, now deceased, the action being brought by the plaintiff against Gayle Casady, as son and sole heir at law of Fred W. Casady and the administrator of the estate of said deceased, and Matilda Casady, wife of Gayle Casady.

The plaintiff alleges as her cause of action against the defendants that in the fall of the year 1932 Fred W. Casady, by parol agreement, hired the plaintiff as a house-keeper and nurse to attend the household duties at his farm home during the remainder of his natural life, and agreed to give or leave to the plaintiff, as compensation for such services, all of his property, both real and personal, of which he was possessed at the time of his death. She further alleges that she accepted this offer, and devoted all her time and attention to acting as housekeeper and nurse to said Fred W. Casady until the time of his death on the 2d day of June, 1936. The defendants, for their answer, deny generally these allegations.

The lips of Fred W. Casady having been sealed in death, and those of the plaintiff, Alpha Rogers, having been sealed by the law, the plaintiff offers the testimony of one principal witness, I. E. Wollman, her brother-in-law, in proof of her alleged contract with the deceased. This testimony consisted of three conversations which are alleged to have occurred between the deceased and this witness for the plaintiff. This is the only direct evidence offered as to the actual making of the contract in 1932. The witness Wollman testified that he had been acquainted with Mr. Casady for some time, and that in June, 1932, he had his first conversation with him relative to the employment of Mrs. Rogers, in which Mr. Casady told him that he wished Mrs. Rogers to work for him, and that he would pay her no salary, but, "'If she will stay and do my work and look after me and tend to me when I am sick and stay right here until I kick off,' that was his word, 'kick off,' 'She can have everything there is here. I have nobody else to leave it to,' he says." He further testified that at a subsequent time he had another conversation with the deceased Casady, as follows: "Well, I asked him how he made it with Mrs. Rogers, and he says, 'I put that proposition up to her just like I told you, the same thing, and she accepted it,' and she says, 'I think we will get along fine,' and she went out on that contract." He further testified that on a subsequent date, in the presence of his wife, the decedent, Mr. Casady, and the plaintiff, a further conversation took place, as follows: "I says to him, I says, 'Did she go out with the same understanding you talked to me about at my office?' He says, 'Yes, sir.' Well, I says, 'Don't you think you ought to have a written statement of that fact so it would be better for both of you?' And he said, 'No,' he says, 'You are a witness to this,' and he says, 'I will leave it to you, if you are good enough to leave it to me.' I says, 'It is all right.' Well, I says, 'It is perfectly satisfactory to me then. I don't want no trouble about it on my part, she could go out;' and turned around and asked her if that was what Fred told her, * * * and she said, 'Yes,' that is what he told her."

The plaintiff called sundry witnesses who testified of alleged statements made by the deceased Casady at a later time as to what he intended to do with his property, and to the effect that he intended to give his property to Alpha Rogers, the plaintiff, but not that he was indebted to the plaintiff in any way. No further testimony was offered relative to any contract existing between the plaintiff and the decedent Fred W. Casady. It is also to be noted that two of the witnesses who gave this class of testimony are a sister and a brother-in-law, respectively, of the plaintiff.

To meet this testimony, the defendants offered the testimony of a Mr. J. W. Easton, for the purpose of impeaching the testimony of Mr. Wollman, the brother-in-law and witness for the plaintiff. Mr. Easton gave his occupation as superintendent of the Iowa-Nebraska Light & Power Company, and testified, in substance and effect, that he was present in the bank at Havelock, Nebraska, at a time when the safety deposit box of the deceased Fred W. Casady was opened; that he had a conversation with Mr. Wollman, which was as follows: "I asked him if he though there was a will made out and some place by Mr. Fred Casady, and he said that he didn't know of any will. In fact, he said 'I have never heard Mr. Casady say anything about the farm or what is to become of it or anything of that nature. I never have heard a conversation in which Mr. Casady made a statement as to what he wanted done with the farm."

The defendants also offered the testimony of two additional disinterested witnesses, to the effect that the plaintiff made statements that all she expected was wages, and that she expected to leave the farm and seek employment elsewhere upon the death of Fred W. Casady. The defendants also offered in evidence a statement in the handwriting of Alpha Rogers, the plaintiff, on a calendar, which reads, "Fred gave me check." The defendants further offered in evidence the written notice to tenants of Fred W. Casady, signed by the plaintiff, in which she recognizes them as tenants of Fred W. Casady,...