Selle v. Selle

• Decision Date: 18 December 1935
• Citation: 88 S.W.2d 877,337 Mo. 1234
• Parties: Otto J. Selle v. Charles Selle, Annie Deitzschold, Ida Ellrick, Lillie Ellrick, Herbert Ellrick, Frank Ellrick, Allen Ellrick, Nellie Beebe and Herman Deitzschold, Administrator of the Estate of John Selle, Appellants
• Court: Missouri Supreme Court

88 S.W.2d 877

337 Mo. 1234

Otto J. Selle v. Charles Selle, Annie Deitzschold, Ida Ellrick, Lillie Ellrick, Herbert Ellrick, Frank Ellrick, Allen Ellrick, Nellie Beebe and Herman Deitzschold, Administrator of the Estate of John Selle, Appellants

Supreme Court of Missouri

December 18, 1935

Appeal from Clinton Circuit Court; Hon. R. B. Bridgeman Judge.

Reversed and remanded (with directions).

Robison & Robison and Denton Dunn for appellants.

Pross T. Cross, Gerald Cross and R. H. Musser for respondent.

Appellants apparently rely upon some decisions cited as being authority that the respondent must accept some payment by way of cash instead of his contract. The record of this case shows clearly that it meets the rule and requirement laid down in Kirk v. Middlebrook, 201 Mo. 289.

Bradley C. Ferguson and Hyde, CC., concur.

OPINION

BRADLEY

This is an action for specific performance of an alleged verbal contract between plaintiff and John Selle deceased, by which contract, it is alleged that deceased agreed to give eighty acres of land in Clinton County, Missouri, to plaintiff, if plaintiff would take care of John Selle for the remainder of his (John Selle's) life. The chancellor granted the relief sought and defendants appealed.

It is alleged in plaintiff's petition that John Selle died intestate in Clinton County, Missouri, September 5, 1932; that he was never married; that he left surviving, no direct descendants; that his sole heirs at law were plaintiff, a nephew, defendants, Charles Selle and Annie Deitzschold, a brother and sister; defendants, Ida, Lillie, Herbert, Frank and Allen Ellrick, nephews and nieces, and Nellie Beebe, a niece; that defendant, Herman Dietzschold, was the administrator of the estate of John Selle, deceased; that at the time of his death, deceased owned the eighty acres of land, describing it, which is the land in question. It is further alleged that on the day of August, 1932, plaintiff and deceased entered into a verbal contract whereby the deceased "then and there promised and agreed with plaintiff that if he, plaintiff, would take him (the said John Selle) into his (plaintiff's) home and there keep him, provide for him, board him, nurse him and care for him and give him a home as long as he (the said John Selle) should live, that then plaintiff, upon the death of the said John Selle, should have and was to have and the said John Selle would give and leave to him, absolutely and in fee simple" the land described. It is alleged that plaintiff performed the alleged agreement and that deceased left sufficient personal estate to pay all debts and funeral bills, and that all such were paid. Plaintiff prayed judgment to the effect that the court find and adjudge that the contract was made as alleged; that plaintiff had fully performed and that it be adjudged and decreed that he, plaintiff, was the owner in fee of the land described.

Defendants answered, admitting that deceased, at the time of his death, owned the land described; that he died September 5, 1932; that his sole heirs were as alleged; that defendant, Herman Deitzschold, was the duly appointed administrator; and that deceased left sufficient personal property to pay all claims against the estate. Other allegations in the petition were denied generally. Defendants, further answering, alleged that the contract claimed by plaintiff was not in writing and invoked the Statute of Frauds; alleged that if plaintiff ever rendered any services to the deceased that he, plaintiff, had received full pay therefor prior to the death of deceased; that if plaintiff rendered any service to deceased after the alleged contract that such "services covered a very short period of time, to-wit, not exceeding 12 days, and the value, if any, of said services can easily be determined in dollars and cents, and adequate relief given at law;" that it would be unconscionable to enforce said alleged contract; that at the time of the death of deceased, plaintiff owed deceased an amount in excess of the value of the services rendered after the date of the alleged contract; that said sum so owed by plaintiff was for obligations of plaintiff which deceased as surety had paid for plaintiff.

Defendants in a separate count set out the interest, from their viewpoint, of plaintiff and defendants in the land described, and asked for partition. Plaintiff replied by denying generally the new matter.

The chief contention is that under the facts plaintiff was not entitled to specific performance. The deceased, John Selle, was seventy-one years old at the time of his death and for many years lived alone on the farm in question. Plaintiff and his family had for twenty years lived on a farm owned by deceased until a short time prior to his death, and plaintiff and his family were still on this farm at the time of the death of deceased. It was about a half mile "across the woods" from plaintiff's home to the home of deceased. August 24, 1932, plaintiff and other members of his family, having learned that deceased was sick, went to see about him, and it is claimed that the alleged contract was made on that day at the home of deceased. On that day deceased was moved to plaintiff's home where he was taken care of by plaintiff and his family, and other relatives and friends, until his death on September 5th.

Plaintiff's evidence was substantially as follows: Minnie Selle, wife of plaintiff, testified that during the twenty years she and her husband had lived on the farm of deceased that he had lived alone; did his own housekeeping and cooking, except for the last two years, she had helped him to some extent, had taken "things to him;" that she had done this off and on, but more "the last two winters." As to the alleged contract, Mrs. Selle testified that deceased, at his home and just prior to being moved to plaintiff's home, said to plaintiff: "Otto, I am sick; I have to be taken care of and I am not able and I want you to take me in your home and give me a home as long as I live; then you shall have this eighty acres;" and that plaintiff said in reply: "I will take you in my home and give you a home as long as you live;" and that in "an hour or so" afterwards, deceased was taken to plaintiff's home and was taken care of until his death. Other relatives and some neighbors, not related, assisted some in sitting up with and waiting on deceased. No point is made on the care and attention given deceased by plaintiff, hence it is not necessary to go into detail about the attention and care.

Frank Peters, a cousin of plaintiff's wife, was present at the time of the making of the alleged contract, and testified: "Well, I came in the house and Mr. John Selle says to Otto, he says, 'Otto,' he says, 'I am sick.' And he says, 'I am where I can't take care of myself any longer.' And he says, 'Will you take me to your home and take care of me.' He says, 'There is no one takes care of me, but Otto and Min.' And he says, 'Will you take care of me as long as I live?' Otto says, 'Yes, sir, I will.' and Mr. John Selle says, 'If you will take care of me as long as I live, you shall have this eighty acres of land.'"

Edward Selle, plaintiff's son, testified: "Well, he (deceased) said he was awful sick and that he wanted Otto to take him home with him and give him a home, nurse him and take care of him as long as he lived; that if he would, why, he said he could have that eighty acres of land," and that plaintiff said: "All right, Uncle John, I will; I will take you over there today and give you a home the rest of your life." Mrs. Edward Selle, who was present at the home of deceased at the time of the making of the alleged contract, testified: "Well, when he (deceased) looked up and saw Mr. Selle come in, he said, 'Otto, my boy, I am very sick.' And he said that he didn't have anyone to care for him but Mr. and Mrs. Selle, and he wanted Mr. Selle to take him into his home and care for him as long as he lived, and he told Mr. Selle if he would take him into his home and care for him as long as he lived, he said, 'I shall give you this 80 acres when I die,' and that plaintiff said, 'I will, Uncle John.' He told him he would take him into his home, care for him and do the best he could for him as long as he lived." On cross-examination, Mrs. Edward Selle testified: "He (deceased) told Mr. Selle (plaintiff) he said that they all seemed like they were ashamed of him; he didn't mention any names, and he said, 'You and Min are the only ones I can depend on.' And he wanted them -- he asked Mr. Selle if he wouldn't take him into his home. Mrs. Selle wanted him to -- well, she told him he should have the care, and that if he could not come there, he should go to the hospital, and he didn't want to go to the hospital."

The evidence for defendants was, so far as pertinent here, as follows: Defendant, administrator, Herman Deitzschold, husband of defendant Annie Deitzschold, and brother-in-law of deceased, testified that he went three or four times to see deceased during his last illness; that his wife went; that deceased had a box "under the bed" at plaintiff's home; that after the funeral, plaintiff had the key to this box; that he, witness, and other relatives looked in this box "to see whether there was a will there; that no will was found; that after he was appointed administrator he had a conversation with plaintiff and said to him: "Now, Otto, I want you to put in a reasonable bill, and I will pay it, for taking care of Uncle John. And he (plaintiff) said, 'All right, I will.'" That afterwards, he saw plaintiff in town and said to him: "Why don't you put in that claim of yours? I want to pay it; I am responsible for this money, and if the bank goes broke I am the loser, and I want to get rid...