Steere v. Palmer

• Decision Date: 12 September 1949
• Docket Number: 41219
• Parties: Pauline Steere, Appellant, v. Caswell Palmer, Mary Clark, Edna Everheart, Della Bentley, James Bush, Hulen H. Bush, Charles Bush, Robert L. Palmer, Walter J. Palmer, Clark Howell, Public Administrator of Greene County, Missouri, and Administrator of the Estate of Clarence Palmer, Deceased, Pauline Steere, Administratrix of the Estate of Effie Steere, Deceased, and Pauline Steere, Executrix of the Estate of J. W. Palmer, Deceased, Respondents
• Court: Missouri Supreme Court

223 S.W.2d 391

359 Mo. 664

Pauline Steere, Appellant, v. Caswell Palmer, Mary Clark, Edna Everheart, Della Bentley, James Bush, Hulen H. Bush, Charles Bush, Robert L. Palmer, Walter J. Palmer, Clark Howell, Public Administrator of Greene County, Missouri, and Administrator of the Estate of Clarence Palmer, Deceased, Pauline Steere, Administratrix of the Estate of Effie Steere, Deceased, and Pauline Steere, Executrix of the Estate of J. W. Palmer, Deceased, Respondents

No. 41219

Supreme Court of Missouri

September 12, 1949

Rehearing Denied October 10, 1949.

Appeal from Greene Circuit Court; Hon. Clarence O. Woolsey Special Judge.

Affirmed.

SYLLABUS

The facts and holding of the case are adequately summarized in headnote No. 2.

Arch A. Johnson and Frank B. Williams for appellant.

(1) The court erred in finding that the proof of the contract failed to meet all the requirements of the law to establish contracts of the nature and character in plaintiff's second amended petition. Ver Standing v. St. Louis Union Trust Co., 129 S.W.2d 905; Broz v. Hegwood, 163 S.W.2d 1009; Burnett v. Hudson, 228 S.W. 462; Handy v. Dillon, 207 S.W.2d 276; Hunter v. Laferty, 162 S.W.2d 842; Sutton v. Hayden, 62 Mo. 101; Finn v. Barnes, 101 S.W.2d 718; Powers v. Mercantile Commerce Bank & Trust Co., 217 S.W.2d 375; Walker v. Bohannan, 243 Mo. 119; Feizenspan v. Pence, 116 S.W.2d l.c. 1078. (2) The court erred in finding that the evidence to support the contract in this case rest on conversations heard by two witnesses. Ver Standig v. St. Louis Union Trust Co., supra; Powers v. Mercantile Commerce Bank & Trust Co., supra. (3) The contract was not only conclusively proven by the testimony of the witnesses Moser, Beck, McDaniel and Thornton, but by the many declarations of Palmer made to other witnesses, and by the acts and conduct of both Palmer and plaintiff; there was no countervailing proof. Allen v. Chouteau, 102 Mo. 309; Gardner v. Crenshaw, 122 Mo. 79; Jacob Dold Packing Co. v. General Box Co., 194 S.W.2d 55; Ver Standig v. St. Louis Union Trust Co., supra. (4) The many declarations made by Palmer that all his property was to go to plaintiff at his death, were declarations against interest and are presumed to be true and such declarations constitute proof of the contract as alleged. Graham v. Stroth, 117 S.W.2d 258; 22 C.J., Evidence, sec. 209; 31 C.J.S., Evidence, sec. 217; Sutter v. Easterly, 189 S.W.2d l.c. 289; Ver Standig v. St. Louis Union Trust Co., supra. (5) The court erred in holding that the contract between plaintiff and Clarence Palmer was not proven beyond a reasonable doubt. A reasonable doubt must be such as fairly and naturally arises in the mind after comparing the whole evidence and deliberately considering the whole case. A fair comparison and consideration of the evidence in this case leaves no room for reasonable doubt. Words and Phrases (Perm Ed.), 36 -- 308; U.S. v. Guillam, 147 F. 524; State v. Judge, 285 S.W. l.c. 721. (6) The finding of facts and the opinion filed by the trial court disclose that the theory of the court in rendering judgment for the defendants was not that plaintiff failed to prove the contract as alleged, but that conceding the contract was made, the alleged failure of plaintiff to render "exceptional services" during the period 1918 to 1930 (during which period Palmer was married) worked an abandonment of the contract and that no new contract being proven, plaintiff could not recover. The court erred in so holding. Porter v. Johnson, 115 S.W.2d l.c. 532; Freidel v. Bailey, 44 S.W.2d 9; Sinclair Refining Co. v. Wyatt, 149 S.W.2d 353; Brown v. Wilson, 155 S.W.2d 176; Riney v. Riney, 117 S.W.2d 698; Dickey v. Dickey, 132 S.W.2d 1026. (7) The abandonment of a contract requires the same meeting of minds as the making of a contract. Recession by abandonment not only requires the mutual assent of the parties, but when conduct is relied upon to prove abandonment, the acts of the parties must be positive, unequivocal and inconsistent with an intent not to be further bound by the contract. Pitcairn v. Refrig. Co., 101 F.2d 929; Porter v. Johnson, 115 S.W.2d 529; Phillips Pet. Co. v. Rau Const. Co., 130 F.2d 499; City v. Ulen Construction Co., 94 F.2d 201; Hoggson v. First Natl. Bank, 231 F. 869; Metz Furniture Co. v. Thane Lumber Co., 298 F. 91; Wheaton v. Collins, 84 A. 271; Utley v. Donaldson, 94 U.S. 29, 24 L.Ed. 54. (8) Plaintiff had no adequate remedy at law. The services rendered were exceptional, substantial, personal, filial, and menial, and could not readily and easily be measured and compensated in money, and being of such nature were not intended to be so measured, and were referable solely to the contract. Ver Standig v. St. Louis Union Trust Co., supra; Byrd v. Moreau, 199 Mo. 416; Hardy v. Dillion, 207 S.W.2d 276; Hedrick v. Wright, 191 S.W.2d 372; Broadway Bank v. Schlater, 17 S.W.2d 591; Powers v. Mercantile Commerce Bank & Trust Co., supra; Jacobs v. Cauthorn, 238 S.W. l.c. 445; McAllister v. Graham, 206 S.W. 393. (9) In an equity case, the Supreme Court, when it finds the weight of evidence to be against the chancellor's decree, may reverse the decree, make its own findings, and determine what decree should be entered. Peikert v. Ripple, 114 S.W.2d 999; Shaw v. Butler, 78 S.W.2d 420; Ver Standig v. St. Louis Union Trust Co., supra.

Roscoe C. Patterson, Kirby W. Patterson and Victor O. Coltrane for respondents.

(1) The evidence in this case did not establish plaintiff's right to relief. Statutes designed to protect against fraud and perjury require wills and contracts for the sale of land to be in writing and signed. Secs. 520, 3354, R.S. 1939; Sulgrove v. Sulgrove, 215 S.W.2d 490. (2) An exception is made, although the contract is not in writing, where the promisee has fully performed and where it is necessary in order to prevent injustice, in which case a court of equity will enforce specific performance; but in accordance with the intent of the statute of frauds and statute of wills and in order to safeguard against fraud, courts of equity demand that the evidence in such case be so unquestionable in its character, and so clear, cogent and convincing that no reasonable doubt can be entertained as to the existence of the contract or the certainty of its terms, or that plaintiff has wholly performed on his part. Farina v. Madden, 163 S.W.2d 82; Russell v. Sharp, 192 Mo. 270, 91 S.W. 134, 111 Am. St. Rep. 496; Feiden v. Gibson, 218 S.W.2d 105; Forrister v. Sullivan, 231 Mo. 345, 132 S.W. 722; Herman v. Madden, 349 Mo. 447, 162 S.W.2d 268; Walker v. Bohannan, 243 Mo. 119, 147 S.W. 1024; Stibal v. Nation, 98 S.W.2d 724; Shaw v. Hamilton, 346 Mo. 366, 141 S.W.2d 817; Kinney v. Murray, 170 Mo. 674, 71 S.W. 197; Rosenwald v. Middlebrook, 188 Mo. 58, 86 S.W. 200; Kirk v. Middlebrook, 201 Mo. 245, 100 S.W. 450; McFall v. Hampe, 267 S.W. 54. (3) Fragments of conversations occurring many years ago between promissor and third persons are entitled to little weight. Russell v. Sharp, supra; McKee v. Higbee, 180 Mo. 263, 79 S.W. 407; 57 Am. Jur., p. 165, sec. 186. (4) Equity will not aid one who has sought the same relief in separate actions on grounds so inconsistent as to evince a lack of candor and clean hands. Ogden v. Auer, 184 S.W. 72; Russell v. Sharp, supra. (5) The findings of the chancellor, who had the opportunity to observe the witnesses and their manner of testifying and who found in favor of defendants is of especial weight in this type of action, where plaintiff's case is interwoven with the credibility of his witnesses. Sulgrove v. Sulgrove, 215 S.W.2d l.c. 492.

Van Osdol, C. Bradley and Dalton, CC., concur.

OPINION

VAN OSDOL

Action for specific performance of an alleged oral contract whereby Clarence Palmer and his sister Leanna (Anna), both now deceased, are alleged to have undertaken to "vest title upon their demise" of all their property (real and personal) in plaintiff, their niece Pauline Steere, in consideration of services alleged to have been rendered by her to their parents (now deceased) and for services to be rendered by plaintiff to them (Clarence and Leanna) as long as they lived. At the time of his death in 1945, Clarence owned 93 acres of land in Greene County, and some lands in the State of Texas. The defendant-administrator, authorized by appropriate orders of sale, has sold the real property; and there remains in the administrator's hands a balance, after payment of debts, which balance after expenses of administration yet to be deducted will exceed $ 17,000. (As we understand, it is plaintiff's theory the proceeds of the administrator's sale of the realty should be considered, in equity, in lieu of the realty sold.)

The trial chancellor was of the opinion plaintiff had not proved (by the quality of proof essential to the relief plaintiff seeks) the contract alleged; and the trial chancellor was of the further view plaintiff is barred from maintaining her action because of the doctrine of res judicata and election of remedies. A decree for defendants was entered, and plaintiff has appealed.

Clarence Palmer was born January 26, 1876. He resided (in 1915 and 1916, and until his death) on the 93-acre farm in Greene County. He was survived by no descendants, and no will of Clarence Palmer has been presented for probate. His sister, Leanna (Anna), who was in ill health, had lived with him until her death in 1926. Clarence had married Lulu Winifred Adkins in 1918. They were divorced in 1930. There was also testimony tending to show Lulu Winifred was employed to help in the Palmer home for a period of about two years (since some time in 1916) prior to her marriage to Clarence.

The Palmer home was destroyed by fire December 16 1945, and the charred body of Clarence was...