Schuler v. Rehberg

• Decision Date: 23 January 1937
• Docket Number: 33184.
• Citation: 145 Kan. 176,64 P.2d 571
• Parties: SCHULER v. REHBERG et al. [*]
• Court: Kansas Supreme Court

64 P.2d 571

145 Kan. 176

SCHULER v. REHBERG et al. ^[*]

No. 33184.

Supreme Court of Kansas

January 23, 1937

Syllabus by the Court.

In action for specific performance of oral contract to devise property in consideration for services, plaintiff held incompetent to testify to transactions or communications which she had personally with decedent, but not incompetent to testify to conversations between decedent and her husband in which she did not participate (Rev.St.1923, 60--2804).

Contract to devise realty in consideration for services when needed or requested and for a home if it should be requested held not so indefinite and uncertain as to preclude specific performance of contract after full performance of services required there under.

Evidence held to justify judgment granting specific performance of contract to devise realty in consideration for services.

Contract entered into by 70 year old man to leave farm worth $6,000 to tenant after his death in consideration for services rendered during remainder of his life held not so inequitable as to be unenforceable, notwithstanding that death of owner occurred less than two years after contract was made.

In an action in the nature of specific performance of an oral contract by which, in consideration of personal care and services, certain property was to be left to plaintiff, the record is examined, and it is held: (1) The contract pleaded under the facts shown was sufficiently definite in its terms to authorize specific performance; (2) the evidence was sufficient to sustain the court's findings that the contract pleaded was made, and that it had been fully performed on plaintiff's part; (3) that all findings made were supported by competent, substantial evidence; (4) that there was no material error in the court's rulings upon the admission of evidence; and (5) that in view of the contract shown the disproportion between the services performed and the compensation to be received is not so great as to require refusal to decree performance.

Appeal from District Court, Ottawa County; Dallas Grover, Judge.

Action by Minnie Schuler against Julius Rehberg, administrator of the estate of Herman Rehberg, deceased, and others. Judgment for plaintiff, and defendants appeal.

L. A McNalley and F. D. Boyce, both of Minneapolis, for appellants.

Z. C Millikin and W. C. Millikin, both of Salina, for appellee.

HARVEY Justice.

This was an action for the specific performance of an alleged oral contract by which, in consideration of certain services performed by plaintiff for Herman Rehberg he was to leave a certain farm to her at his death. It was alleged the services were fully performed by plaintiff and that Rehberg died intestate without having carried out the contract on his part. His administrator and heirs at law were made defendants. The trial was to the court with the aid of an advisory jury, which made findings of fact by answering special questions. The court adopted as its own the findings made by the jury, made additional findings of fact, and rendered judgment in harmony therewith for plaintiff. Defendants have appealed.

The record discloses that Herman Rehberg and his wife, Millie lived in or near Bennington, in Ottawa county, for many years. They had no children. The wife died intestate October 28, 1932; he died intestate September 15, 1934, at the age of 72. At the time of his death he was the record owner of what is spoken of as the home place, a farm of 192 acres, situated about two miles from Bennington, of the value of $6,000 being the property involved in this action. He was also the record owner of 370 acres of other farm and pasture land in that county, his residence property in Bennington, and a substantial amount of personal property, the value of all of which is not shown. About 1912 he leased the home place to Anthony Schuler, the father of Carl Schuler, the husband of plaintiff. Carl lived there with his father. He and plaintiff were married in 1919 and went there to live. In 1930 he became the tenant and continued to live there until the death of Herman Rehberg, and since. Shortly after the death of Herman Rehberg his brother, Julius Rehberg, was appointed and qualified as administrator of his estate. Later he paid past-due taxes on the home place, insured the improvements thereon, and caused written notice to be served upon Carl Schuler of the termination of his tenancy.

This action was brought February 7, 1935. In the amended petition, among other things, it was alleged that in November, 1932, "Herman Rehberg came to the home of this plaintiff and orally proposed to her in substance that if the plaintiff, with the help of her husband when needed would look after him, care for him when sick when requested and give him a home with them if he should request it, that he would leave to plaintiff and she should have at his death," the home place, "and plaintiff would thereby become the owner thereof"; that plaintiff accepted this proposition, and relying upon the contract so made, plaintiff, with the help of her husband, fully performed the contract on her part. Details of what was done were alleged. It was further alleged Herman Rehberg orally represented to plaintiff that he had, or would make such papers as were necessary to vest title to the home place in her at his death, but that he had not done so, and that defendants were claiming title to the property. The prayer was that plaintiff be adjudged to be the owner of the property in fee simple. The answer denied that the contract relied upon was made, or if made, that it was performed on plaintiff's part, pleaded the statute of frauds, and alleged that such services as were performed by plaintiff could be valued and paid in money, and that in any event it would be inequitable to decree specific performance. The reply was a general denial.

At the close of the evidence the court found the contract was made as alleged by plaintiff, that it was fully performed on her part, and that it would be inequitable not be enforce it, and decreed specific performance.

Appellants contend the contract pleaded by plaintiff is too indefinite and uncertain to state a cause of action in equity; that the findings of the trial court are exaggerated and not sustained by the evidence; that there is no substantial proof of the contract pleaded; that the court erred in rejecting testimony offered by defendants and in admitting certain testimony offered by plaintiff; that the performance shown does not comply with the terms of the contract; that the value of services claimed to have been done by plaintiff can be ascertained easily and paid in money; that the value of the services shown to have been performed by plaintiff is not commensurate to the value of the property involved, and that plaintiff should gain no advantage by filing this action for specific performance within the time in which she could have filed in the probate court a claim for services performed.

This is largely a fact case. In the perhaps too many cases of this general character which have reached this court, each different from the other on the facts, the rules of law relating to them have become fairly well settled. See Woltz v. First Trust Co., 135 Kan. 253, 259-261, 9 P.2d 665. While it would be better for all parties if the contract such as is relied upon here were reduced to writing in all cases, the fact remains that is not always done. There are or may be bona fide cases in which oral contracts of this character are made and fully performed on one side, but not on the other. In such instances the contract may be enforced by an action in specific performance. The statute of frauds is not a bar to such enforcement. Smith v. Nyburg, 136 Kan. 572, 576, 16 P.2d 493. Since the action is brought and tried after the lips of one of the parties to the contract have been closed by death, to guard against imposition and fraud courts must scrutinize with care the testimony offered to establish the contract and its performance. This is especially true where the testimony comes from the plaintiff, or from his or her near relatives. But even the testimony of interested parties may be true. Our statute (R.S. 60--2804) makes plaintiff an incompetent witness to transactions or communications she had personally with Herman Rehberg. Hence, the general rule laid down in the cases is that the evidence must be competent, relative, and material, it must come from witnesses competent under the law to testify, and when weighed in its entirety it must be clear, convincing, and satisfactory. The duty of weighing the evidence and determining its sufficiency primarily is that of the trial court. In this case, realizing the importance of determining the facts, the trial court called to its aid an advisory jury. As in other fact cases, this court examines the evidence, when its sufficiency is questioned, only to see that there is substantial, competent evidence, from witnesses competent under the law to testify, to sustain the findings and judgment of the trial court.

In this case the fact that the contract, alleged in the petition, was made and its terms, was established primarily by the testimony of plaintiff's husband, Carl Schuler. He testified Herman Rehberg told him he had made the contract with plaintiff. Plaintiff was present and testified to the conversation between the two men. Our statute (R.S. 60--2804) does not make her an...