Sportsman v. Halstead

• Citation: 147 S.W.2d 447,347 Mo. 286
• Decision Date: 01 February 1941
• Docket Number: 36656
• Parties: Melvin Sportsman and Ola Sportsman, his wife, v. George Halstead, administrator of the estate of P. B. Smith, Cora Hinkle, William Smith, Mrs. Alena Adams, John Smith, Anna C. Daharsh, Margaret Brunz, Herman Smith and Selma Sutton, heirs at law of the said P. B. Smith, Appellants
• Court: Missouri Supreme Court

147 S.W.2d 447

347 Mo. 286

Melvin Sportsman and Ola Sportsman, his wife, v. George Halstead, administrator of the estate of P. B. Smith, Cora Hinkle, William Smith, Mrs. Alena Adams, John Smith, Anna C. Daharsh, Margaret Brunz, Herman Smith and Selma Sutton, heirs at law of the said P. B. Smith, Appellants

No. 36656

Supreme Court of Missouri

February 1, 1941

Appeal from Howell Circuit Court; Hon. Will H. D. Green Judge.

Reversed and remanded.

Homer Rinehart and H. J. Griffin for appellants.

(1) This being a suit in equity the appellate court will review the evidence de novo and render the decree authorized in equity and which should have been rendered by the chancellor. Home Trust Co. v. Shapiro, 64 S.W.2d 717; Batson v. Peters, 89 S.W.2d 46. (2) Title in real estate should not slumber in oral contracts to convey. The very conscience of the court must be touched by the facts of the particular case before the exceptions of the statute will be called into play. Walker v. Bohannan, 147 S.W. 1028. The specific enforcement of contracts of the character of the one here involved is an exception which courts of equity have ingrafted upon the Statute of Fraud. The exception is one that is sparingly exercised and then only in well defined rules of procedure. Among those rules are the following: (a) The alleged oral contract must be clear, explicit and definite; (b) it must be proven as pleaded; (c) such contract cannot be established by conversations either too ancient on the one hand, or too loose or casual upon the other; (d) the alleged oral contract must itself be fair and not unconscionable; (e) the proof of the contract as pleaded must be such as to leave no reasonable doubt in the mind of the chancellor that the contract alleged, was in fact made and that the full performance, so far as lies in the hands of the parties to perform, has been had; (f) the work constituting performance must be such as referable solely to the contract sought to be enforced, and not such as might be reasonably referable to some other and different contract; (g) the contract must be one based upon an adequate and legal consideration, so that its performance upon the one hand, but not upon the other would bespeak an unconscionable advantage and wrong demanding in good conscience relief in equity; and (h) proof of mere disposition to devise by will or convey by deed by way of gift, or as a reward for services, is not sufficient, but there must be shown a real contract to devise by will or convey by deed, made before the acts of performance relied upon were had. Collier v. Porter, 16 S.W.2d 56; Waller v. George, 16 S.W.2d 68; Walker v. Bohannon, 243 Mo. 119, 147 S.W. 1024; Snuffer v. Freeman, 274 S.W. 37; Forrister v. Sullivan, 231 Mo. 345; Collins v. Harrel, 219 Mo. 279; Wales v. Holden, 209 Mo. 552; Shaw v. Hamilton, 141 S.W.2d 817. (3) Statements or expressions of gratitude, or of an intention to reward for work and services performed, do not of themselves evidence a contract to leave all property of recipient of such service to one performing them. Collier v. Porter, 61 S.W.2d 49. (4) The Supreme Court will defer to chancellor's findings only where such findings appear to be correct, for in equity cases Supreme Court is never concluded by finding of facts by court below. Collier v. Porter, 16 S.W.2d 49. (5) The evidence in this case is insufficient to authorize a decree in favor of plaintiff awarding specific performance of the oral contract plead in plaintiff's petition. Walker v. Bohannan, 147 S.W. 1024; Forrister v. Sullivan, 132 S.W. 722; Snuffer v. Freeman, 274 S.W. 37; Collier v. Porter, 16 S.W.2d 49; Waller v. George, 16 S.W.2d 63; Shaw v. Hamilton, 141 S.W.2d 817. (6) The testimony of Everett Mahan was inadmissible to contradict, vary or alter the terms of the warranty deed introduced in the evidence. The warranty deed conveyed the title of the land described in said deed from E. L. Mahan and his wife to John B. Smith. Hines v. Felkins, 231 S.W. 922; Davidson v. Davidson Real Estate Inv. Co., 125 S.W. 1143; Freeman v. Thompson, 53 Mo. 183; Milan v. Pemberton, 12 Mo. 599; Mobely v. Nave, 67 Mo. 546.

J. N. Burroughs for respondents.

(1) The motion of respondents to dismiss the appeal should be sustained because of the flagrant and pernicious failure of appellants to give a fair, concise and correct statement of the case, as is required under Rule 15 of this court. We cite the cases named below, wherein it was held that failure of appellant to state any of the facts favorable to the respondent or in support of the judgment, as in this case, is fatal to the appeal and that the appeal will be dismissed upon motion of respondents. Produce Exchange Bank v. Winn, 133 S.W.2d 419; Coolidge v. Strother, 137 S.W.2d 468; Sims v. Hydraulic Brick Co., 19 S.W.2d 294; Hunt v. Hunt, 270 S.W. 305; Crockett v. K. C. Rys. Co., 243 S.W. 902. (2) It is true that appellate courts will review the evidence in equity cases to the extent of ascertaining whether the judgment of the lower court is supported by the evidence, but will give great deference to the findings on the chancellor trying the cause, on account of the superior advantages he possesses for weighing the evidence, and judging of the credibility of the witnesses. Judy v. Farmers Bank, 81 Mo. 404; Mathias v. O'Neill, 94 Mo. 520; Parker v. Roberts, 116 Mo. 657. In an equity case, where any finding of fact depends on the credibility of oral testimony the appellate court should be satisfied that the finding is against the preponderance of the evidence before reversing it. Short v. Taylor, 137 Mo. 517; Feaster v. Rocks, 293 S.W. 139. Where an issue of fact rests in equity alone on the credibility of witnesses, the appellate court will usually defer to the findings of the chancellor. Creamer v. Bivert, 214 Mo. 473; Tate v. Citizens Saving Bank, 21 S.W.2d 227. The allegations of the petition contained the same identical facts as that contained in a number of reported cases for specific performance of contract upheld by this court, and the evidence in this cause sustained fully the allegations of the petition. These authorities being exactly in point on the allegations of the petition and the evidence in the instant case entitles respondents to an affirmance of the judgment. Sutton v. Hayden, 62 Mo. 115; Hall v. Getman, 121 Mo.App. 638; Berg v. Moreau, 199 Mo. 421; Smith v. Lore, 29 S.W.2d 91. (3) The charge of irregularity in the judgment is without avail, for the reason it was not properly raised nor saved by appellants. That is a matter that can be raised only on motion in arrest of judgment. Appellants filed no motion in arrest, therefore no question as to the irregularity of the judgment is properly before the court. Sickles Sadlery Co. v. Bullock, 86 Mo.App. 89; Johnson v. Bedford, 90 Mo.App. 43; Riley v. Grand Island, 72 Mo.App. 280; Welch-Sandler Cement Co. v. Mullins, 31 S.W.2d 91; Rodgers v. Mut. Fire Ins. Co., 185 Mo. 247. (4) Where the judgment is for the right party, it will not be reversed although the trial court in deciding the case may have assigned a wrong reason for its findings. Vaughn v. Daniels, 98 Mo. 230; State ex rel. v. Skinker, 250 S.W.2d 478; Devoto v. Devoto, 19 S.W.2d 668.

OPINION

Ellison, J.

This is a suit in equity to enforce specific performance of an alleged oral contract between the respondents, who are husband and wife, and P. B. Smith, deceased, whereby the latter agreed that respondents should have and receive whatever property he might leave at his death, if they would live with him, take care of him, and administer to his physical wants and needs in sickness and in health so long as he might live. The contract is thus pleaded in respondents' petition. Smith was an aged bachelor and the defendants below, appellants here, are his administrator and heirs.

Respondents' petition alleged the personal property left by the deceased was of the actual value of about $ 2500. It further charged 160 acres of described land in Howell County belonged to the estate, of which 22.5 acres stood in the name of the appellant John Smith as trustee for deceased. The answer of all the appellants was a general denial and a plea of the Statute of Frauds, Section 2967, Revised Statutes 1929, Mo. Stat. Ann., p. 1835. The appellant John Smith by his separate answer further affirmatively alleged he held title to the 22.5 acres, not as trustee for the deceased P. B. Smith, but in fee simple; and he invoked the ten year Statute of Limitations, Section 850, Revised Statutes 1929, Mo. Stat. Ann., p. 1121.

The decree below was for respondents. It divested title to the whole 160 acres out of appellants and vested it in respondents; but nevertheless failed to adjudicate the issue whether the appellant John Smith held the 22.5 acres (included in the 160 acres) as trustee for the deceased or as owner in fee simple, although considerable evidence had been introduced on that issue. This would seem inconsistent. But the decree explains that the chancellor had concluded he erred in refusing respondents' request during the course of the trial to withdraw the part of their petition raising the trust issue. That issue turned on the effect to be given a certain deed and its attendant transactions; and concerned only the respondents and the single appellant John Smith, who insisted it was a separate and distinct cause of action. A demurrer to the petition and motions to require respondents to elect had been interposed on that theory. So the intended effect of the decree seems to have been to vest the 160 acres in respondents on other muniments of title, subject to John Smith's unadjudged claims through the deed mentioned.

The basic assignment of error on this appeal is that the evidence did not measure up...