Schweizer v. Patton

• Decision Date: 26 August 1937
• Docket Number: No. 34872.,34872.
• Court: Missouri Supreme Court
• Parties: SCHWEIZER v. PATTON et al.

116 S.W.2d 39

SCHWEIZER v. PATTON et al.

No. 34872.

Supreme Court of Missouri, Division No. 2.

August 26, 1937.

Modified on Court's Own Motion and Rehearing Overruled. December 17, 1937.

Motion to Set Aside Modification Overruled May 3, 1938.

Appeal from Circuit Court, Adair County; Emmert C. Hilbert, Judge.

Suit for specific performance by Linda Schweizer against Lee J. Patton, as public administrator and administrator of the estate of John F. Janisch, deceased, and others. Decree for defendants, and plaintiff appeals.

Reversed with directions.

P. M. Marr, of Milan, for appellant.

Murrell & Murrell, P. J. Fowler, Roland A. Zeigel, and E. M. Jayne, all of Kirksville, for respondents.

WESTHUES, Commissioner.

This is a suit for specific performance. A decree was entered for defendants, and plaintiff appealed. Plaintiff seeks, by this suit, to have decreed to her one-half of the estate of John F. Janisch, deceased, which estate was appraised at approximately $11,000, and consisted of both real and personal property situated in Kirksville, Adair county, Mo.

Plaintiff's suit was based upon an alleged agreement with the deceased, that if she would care for deceased until his death, then she was to be the owner of one-half of his property. The defendants are: Lee J. Patton, public administrator and administrator of the estate of deceased, and the heirs at law of the deceased, who are: Edward, William, Victor, and Frank Janisch, brothers; Julius, Frederich, and Walter Janisch, nephews; Annie Janisch, niece; and Adela Janisch Platt, grandniece of the deceased. All of these defendants, except the administrator, were nonresidents of the state.

A short history of the parties will be helpful in understanding the events vital to the controversy in question. Plaintiff and her husband migrated to Chicago, Ill., from Germany, about the year 1929. The husband, not being satisfied, soon returned to Germany, while plaintiff remained in Chicago. The deceased had migrated to this country from Germany in the year 1883, and located in Chicago. In the year 1895, he was seriously injured and thereafter moved to Kirksville, Mo., for the purpose of receiving osteopathic treatment. He remained a cripple, however, as he did not regain the use of his legs. This necessitated the use of crutches and at times a wheel chair. Deceased remained in Kirksville and engaged in business, and during the forty years that he lived there accumulated the property now in his estate. Deceased never married. His half-sister lived with him until her death in the year 1933. Thereafter, he employed a number of women to keep house for him, but was unable to retain help for any length of time.

The struggle for existence in Chicago became very difficult for plaintiff, so she had an ad inserted in a German newspaper in Chicago, called the Abendpost, meaning Evening Post. The ad translated into English read as follows:

"Marriage ad:

"An alone standing married woman seeks a gentleman not under 45 years, who would share the home and expense of the same with her, with intent of marriage. No children. Send to L.29 Abendpost."

It may be noted here that all translations referred to in this opinion were made by Prof. J. W. Heyd, a professor of modern language, who had taught German in the State Teachers College, at Kirksville, since 1905. The professor was a witness and translated the correspondence between the parties. The deceased was a subscriber to the Abendpost. He wrote plaintiff the following letter in German, dated August 13, 1934.

"L.29 Abendpost, Chicago, Ill.

"Dear Madam: Since I lost my companion, I wish now to find a good lady with whom I can continue my peaceful home and can esteem her dearly and most worthily. I have besides my business, also property which I rent and need reliable help. Now, if you are minded to come to Kirksville and take the half interest in every respect and help me, then can we live highly satisfied. I am 3 feet three inches tall, weigh 160 pounds, fair complected, speak german, bohemian and American. Please write me at once. Full of hope I remain interest.

                                          "J. F. Janisch."
                

The evidence indicates that deceased's height of 3 feet, 3 inches, as mentioned in the letter, was incorrect. Considerable correspondence ensued between deceased and plaintiff from that time until the month of November, 1934, when on the 11th and 12th of that month plaintiff moved to Kirksville and thereafter lived at the home of Janisch until his death. Deceased paid the expenses of taking plaintiff's furniture to Kirksville. Prior to moving, plaintiff had made one visit to Kirksville and deceased also paid the expense of that trip.

A number of witnesses testified that the deceased had stated plaintiff would receive all of his property at his death. These conversations, however, were casual, but to us the most convincing was the evidence given by a witness named L. M. Bowles. This witness testified to substantially the following facts: Bowles, as a real estate agent, had, about six months prior to the death of Janisch, sold plaintiff property. A contract was drawn and left with plaintiff. Later deceased informed Bowles that he would not accept the contract. At the suggestion of deceased, a deed was prepared, a payment of $200 was made, and a deed of trust and note were executed for the balance of the purchase price. Bowles testified that in the course of this deal deceased said to him: "`You know I am behind this and I expect to see that it is paid for if I live, and if I die, if she stays with me until I die, why, she will get half or all of my property, so you know you will get your money then.'" The evidence disclosed that deceased was in dire need of help after the death of his half-sister, who had lived with him for many years. He was unsuccessful in getting anyone to care for him until the plaintiff arrived. The evidence disclosed that plaintiff worked hard and administered to every need of deceased. Summarizing the evidence of numerous witnesses, it may be stated that plaintiff, by hard labor, transformed a dirty, filthy, and unsanitary household into a neat and clean home. If there was a contract, she faithfully performed her part.

Defendants relied chiefly upon the theory that plaintiff failed to introduce sufficient evidence of a contract to justify specific performance; that the letter written by the deceased was so indefinite and uncertain that it would not support a decree. Defendants introduced a memorandum in the handwriting of deceased, wherein he had kept an account of the money advanced to the plaintiff. Defendants argue that this memorandum tended to contradict plaintiff's theory that she was to have one-half of his property.

We are of the opinion that, under the evidence, plaintiff was entitled to a decree of specific performance. There is nothing in the letter of deceased to plaintiff, dated August 13, 1934, or in any of the subsequent letters, which suggests that plaintiff was to work for wages. If plaintiff was to be a servant at certain wages, why did deceased inform her that he...