Rooney v. McDermott

• Decision Date: 08 May 1926
• Docket Number: 26,688
• Citation: 246 P. 183,121 Kan. 93
• Parties: JAMES AUGUSTUS ROONEY, Appellee, v. JUDA MCDERMOTT, Appellant
• Court: Kansas Supreme Court

246 P. 183

121 Kan. 93

JAMES AUGUSTUS ROONEY, Appellee, v. JUDA MCDERMOTT, Appellant

No. 26,688

Supreme Court of Kansas

May 8, 1926

Decided January, 1926.

Appeal from Kiowa district court; LITTLETON M. DAY, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. SPECIFIC PERFORMANCE--Oral Contract to Convey Land--Services of Foster Child--Evidence. In an action to recover an interest in real property based upon an oral contract that plaintiff should receive an undivided half interest in the estate of his foster parents in consideration of his rendering to them the services, affection and obedience of a son from the time he entered their family at nine years of age until he attained his majority or until their deaths, the evidence examined and held to meet the requisites of the rule requiring such contract to be established by clear convincing and satisfactory proof by the party claiming rights under such contract.

2. SAME -- Pleading -- Laches. Ordinarily, to be effective, laches must be pleaded; and where it is neither pleaded nor proved, it is no defense to an action to recover an interest in land.

3. APPEAL AND ERROR--Review of Excluded Testimony--Necessity for Presentation. Rule followed that excluded testimony not brought into the record and presented in support of the motion for a new trial furnishes no basis for reversible error.

4. SPECIFIC PERFORMANCE--Evidence--Admissibility. Error based on excluding from the jury's consideration certain letters considered and not sustained.

5. SAME--Instructions. Error assigned on the instructions given and refused considered and not sustained.

6. NEW TRIAL--Grounds--Newly Discovered Evidence. Newly discovered evidence which is merely cumulative, or which could readily have been obtained in time for presentation at the trial if diligence had been exercised, or which suggests no probability that in a new trial the newly discovered evidence would change the result, is not sufficient to compel a new trial or to justify reversal of a judgment because a new trial was denied.

O. G. Underwood, of Greensburg, Frank Reavis and Maxwell V. Beghtol, of Lincoln, Neb., for the appellant.

John W. Davis, of Greensburg, and Manvel H. Davis, of Kansas City, Mo., for the appellee.

Dawson J. Harvey, J., dissenting.

OPINION

DAWSON, J.:

This was an action to recover an undivided half interest in 320 acres of Kiowa county land under a claim thereto founded on an oral contract made during plaintiff's infancy between plaintiff and certain persons concerned in his welfare on the one part and the parents of defendant on the other part.

In substance the alleged contract was that in the year 1891, when plaintiff was nine years old, James T. Wallace and Susan Wallace, parents of defendant, made an agreement with plaintiff and with his custodians, by the terms of which plaintiff was to be received into their family and treated as their own child and to be reared and nurtured as though born to them, they to receive his services and obedience during his minority, and at their deaths plaintiff should receive one-half of their property.

Plaintiff's petition with appropriate recitals set up this contract and alleged that pursuant thereto he entered into the family of James and Susan Wallace and was reared by them as their son and given the name of James L. Wallace, and that he resided with them and gave them his services, affection and obedience until the death of James in 1893, and thereafter he continued to render like service and obedience to Susan until her death on July 25, 1905, and that he had fully performed his part of the contract.

This action was brought on July 24, 1920. A demurrer to plaintiff's petition which raised the statute of limitations was sustained by the trial court, and that ruling was reversed by this court. (Rooney v. McDermott, 113 Kan. 18, 213 P. 631.)

The defendant then answered, traversing the allegations of the petition, alleging defendant's ownership and possession; and as to one quarter section of the land in controversy (the Wallace homestead) defendant alleged that she and her mother Susan Wallace became tenants in common of it upon her father's death on January 3, 1893, and that they entered into possession at that time, and that defendant had held open and notorious possession of an undivided half interest in that quarter section since January 3, 1893. Touching the other quarter of land in controversy defendant alleged that Susan Wallace had owned it until her death on July 25, 1905; that Susan died intestate; and that defendant was the only heir of Susan; and that defendant inherited that quarter section, as well as Susan's undivided half interest in the Wallace homestead; and that she had held actual, open and notorious possession of these lands since her mother's death. The answer concluded thus:

"Defendant specifically denied that . . . James T. and Susan Wallace made an oral agreement with the plaintiff and those having the custody of the plaintiff, as alleged in plaintiff's petition, whereby he was to receive at their death one-half of their property, both real and personal, of which they might die seized and possessed."

On these issues the cause was tried. The jury returned a general verdict for plaintiff, and answered certain special questions:

"1. Do you find that James T. Wallace and Susan Wallace made an oral agreement with James A. Rooney, the plaintiff, by the terms of which agreement the plaintiff was to be received into their family and treated as their own child, they to receive his services and obedience until plaintiff was twenty-one years of age, and whereby they agreed that plaintiff should receive at their death one-half of all the property of which they might die possessed? A. Yes.

"2. Do you find that James A. Rooney, the plaintiff, fully performed his part of said agreement? A. Yes.

"SPECIAL QUESTIONS.

"1. [a] Was there a written agreement made by James T. Wallace and Susan Wallace at or shortly after they took James Augustus Rooney into their home? A. No."

Judgment was entered accordingly, and defendant appeals.

1. It is argued that the judgment is not sustained by the evidence. On that point the record shows the following facts:

Plaintiff was born in Boston, January 1, 1882. When he was about two years old his parents separated, and plaintiff's mother left him at a police station in New York when he was about four years old. He was placed in custody of a society devoted to the care of abandoned children, and when he was about six years of age he was given into the charge of a family named Ward. One member of the Ward family took plaintiff to his abode in Illinois, and some months later another member of the Ward family took plaintiff to Kiowa county and placed him temporarily in the family of defendant's parents, James T. Wallace and Susan Wallace. The Wallace family had one living daughter, the defendant. They had lost two other children by death. They soon became much attached to plaintiff and desired to keep him as their own son. The Ward family, however, wished to take the child back to Illinois, but eventually the Wallaces were permitted to keep him under the agreement which gave rise to this lawsuit. Plaintiff at that time was nine years of age. The Wallace family lived on a farm in Kiowa county. Plaintiff bore the name of J. L. Wallace, and was so known during his school days. James T. Wallace spoke of the lad as his boy, and said he had adopted him, and said the lad would get part of his property. One witness, who knew the circumstances under which the Ward family surrendered the plaintiff to the Wallace family, testified:

"A. After we talked about the Wards wanting him back and they was going to have him adopted, that Mr. Wallace and Mrs. Wallace both mentioned they had made an agreement with Jay if he would stay with them-- . . .

"A. Well, Mr. and Mrs. Wallace said they had made an agreement with this boy, if he would stay with them until he was twenty-one or until their death they would give him half of their property.

. . . .

"Q. When Mr. Wallace told you what you have testified about here, about an agreement, did Mrs. Wallace say anything about that? A. She said they were going to fix all the papers up with that agreement. . . .

"Q. She mentioned the agreement? A. Yes, sir.

"Q. What did she say, if you can remember? A. She says we are going to give J. L. half of what we have got at our death if he stays with us.

"Q. And this was all one conversation? A. All had at the same time.

"Q. And the same people? A. Yes, sir."

Another witness, who had been plaintiff's school teacher, testified that on one occasion he was visiting at the Wallace home when plaintiff's relationship to the family was discussed:

"A. We were sitting at the supper table; supper was over. Along later and talking, Juda [defendant] had gone out to milk the cows, and I was a little curious to know if that was all the family, or some of them married and gone away, so I asked them if they had any other children. Mrs. Wallace said they had two little children that died in infancy, buried back east.

"Q. What else did she say? A. And she says, 'We took this boy here to raise, and we promised if he was a good boy, behaved himself, and stayed with us until he was twenty-one he should have half of our estate.' And she says, 'Now J. L. [plaintiff], get out of here and help Juda with the cows; get along with you,' she says, 'or I will use my slipper.' So he grabbed his hat and said, 'By shucks,' and went--

"THE COURT: What was that? A. So he grabbed his hat and said, 'By shucks'--kind of a byward he had--and pulled out to the barn."

Another witness, a neighbor and acquaintance of the Wallace family for many...