Russell v. Sharp

Citation192 Mo. 270,91 S.W. 134
PartiesRUSSELL et ux. v. SHARP et al.
Decision Date21 December 1905
CourtUnited States State Supreme Court of Missouri

Appeal from Circuit Court, Nodaway County; Samuel Davis, Special Judge.

Action by Alexander Russell and wife against Michael Sharp and others. From a judgment for plaintiffs, defendants appeal. Reversed.

Cyrus A. Anthony, Alvin Bingaman, W. G. Tate, Ira K. Alderman, and J. L. Fink, for appellants. W. A. Blagg, T. A. Cummins, and E. A. Vinsonhaler, for respondents.

VALLIANT, J.

This is a suit in equity for the specific performance of a contract alleged to have been made in 1868 between one H. Monroe Sharp, who has since died intestate, on the one part, and the plaintiffs, who are husband and wife, on the other. The contract, as the petition alleges, was that plaintiffs, who were then residing in Clinton county, were to move to Nodaway county and there reside on a farm owned by H. Monroe Sharp, help improve it, and remain there, aiding him as long as he should live, and at his death they were to have all of his property. After all the evidence in the case was in and both sides had rested, the plaintiffs were permitted, over the defendants' objection, to amend their petition by erasure and interlineation, by striking out the words "help improve it and remain there aiding him," and inserting in lieu thereof "take care of him, the said Sharp, when he was sick and as long as he should live," etc. The alleged contract was not in writing. The intestate died in August, 1902, at the age of 78, leaving a farm of 240 acres in Nodaway county, 80 acres in Warren County, and 80 acres in Morgan county, and personal property estimated at $700. Debts against the estate amounting to nearly $1,000 were allowed in the probate court. The intestate had never married. He had had four brothers and three sisters, all of whom had died before his death, except one brother, Michael Sharp, who is now living in North Carolina. The plaintiff Dillie Russell is the daughter of one of the deceased brothers. The defendants are the surviving brother, the descendants of the deceased brothers and sisters, and the administrator of the estate. The petition states that the plaintiffs fully performed the contract on their part, and pray a specific performance on the other part, by decreeing that they have the whole estate subject to the claims of the administration. The defendants answered denying the allegations of the petition and pleading the statute of frauds. The trial resulted in a finding of the issues in favor of the plaintiffs and vesting the whole estate, subject to the claims of the administration, in the plaintiff Dillie Russell. Defendants appeal.

The testimony on the part of the plaintiffs tended to prove that in 1868 they, being then married, moved from Clinton county to Nodaway, and lived on the farm of Monroe Sharp, the bachelor uncle of plaintiff Dillie Russell; he and they living together in his dwelling house on the farm, Russell renting from Sharp part of the farm and paying him as rent therefor one-third of the crop, Sharp retaining the rest of the farm in his own care. In 1870 or 1871 Russell bought a 40-acre farm about a mile from Sharp's, moved there with his family, and lived there two years, after which he sold the 40 acres and moved back to Sharp's and rented a part of the farm from him; Sharp charging him more rent than in the former years. As Russell's family increased in numbers, the old bachelor uncle found it more agreeable to live alone, and he accordingly built him a little house about a quarter of a mile from the house occupied by the Russell family and moved into it, and he there lived practically alone for the last 20 or 25 years of his life, doing his own cooking, housekeeping, etc., and managing the part of the farm not rented to Russell. In his last illness, which began about three months before he died, he became helpless, and was taken by the Russells to their house, and was cared for and attended by them, and died there. In this last illness he required much care and service of a personal character not agreeable to render, but the care was bestowed and the service rendered in a kind manner. During the 20 or 25 years when he lived alone, Mrs. Russell frequently visited him and carried him bread that she had made and was kindly attentive to him, and her children also visited him. But during the most of that period he was able to take care of himself, and did not require much personal service. The plaintiffs' evidence also tended to show that they planted fruit trees, built a corncrib, stable, henhouse, and smokehouse, did some clearing, fencing, etc.

The testimony adduced to prove the alleged contract consisted entirely of admissions the old man was said to have made. This testimony may be summarized as follows:

L. J. Wood, a neighbor who lived four or five miles from Sharp, testified that he had a conversation with him 12 or 13 years ago in which Sharp said that Russell had been with him about 30 years, and that: "I told him if he came here and stayed with me. I would see that he got my house; and I calculate to make my word good, if he stays with me." Sharp also said that Mrs. Russell had always done his washing and mending.

Logan Holt had known Sharp when they were young men, worked as carpenters together—"I and him used to be great old chums." Witness had lived in town and had not seen so much of Sharp in the last 20 years, but still owned a farm in that neighborhood, and would see him occasionally. Before Russell came on the farm, Sharp told witness he wanted to get the Russells to come and stay with him and help him. On one occasion witness reminded Sharp that he was getting old, and asked him what he was going to do with his property, to which he answered: "Dillie Russell is going to get what I have, I allow for Dillie to have it." He said she had always been there, waited on him, and took care of him. Witness being asked by plaintiffs' attorney if Sharp ever said to him that he (Sharp) had told the Russells that, if they would come there and stay with him until he died, Dillie should have the property, he answered: "I wouldn't say right positive, but that is my impression. Now this is a long way back to recollect anything." On cross-examination he said it was at least 20 years ago that he had this conversation with Sharp.

T. H. Williams had lived in the neighborhood and had "worked for him a little," and had had "a few words" of conversation with him about his relation with the Russells. It came about in this way: "He asked me how I came there with the folks that I did. I told him they raised me, and of course they expected me, if they had no children, to have what property they had at their death. * * * I told him I understood that was the contract between him and Mr. Russell, and he said it was. * * * He aimed for them to have what he had at his death." This conversation was had 12 or 13 years ago.

Norton Roberts had done some work for Sharp about two years ago. He said: "I asked him what he was going to do with his property, he was getting old * * * what he allowed to do with his property when he passed over, he said he allowed for them folks back there where we got dinner to have it." They had had dinner at the Russells.

Plaintiffs' main witness, Collins, testified that in 1898 he reminded Sharp that he was getting old, had no family, and asked him why he did not sell the farm and move to town, to which the old man answered: "I made a contract with Russell before he moved on this farm—him and his wife—that, if they would come on this farm and live with me and take care of me when I am sick, at my death all my property goes to Russell and his wife." Witness also testified that the Russells always took care of the old man when he was sick. On cross-examination this witness stated that he had no interest in the result of the suit, but he admitted he had been very active in aiding Russell in the matter, was surety on the bond for costs, had helped hunt up witnesses, had gone with Russell every time he went to consult his attorneys. On being asked if he had not said that he intended to carry the case to the Supreme Court and keep right along with it,...

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