Stibal v. Nation

• Decision Date: 23 April 1936
• Docket Number: 33268
• Citation: 98 S.W.2d 724
• Parties: STIBAL v. NATION et al
• Court: Missouri Supreme Court

98 S.W.2d 724

STIBAL v. NATION et al

No. 33268

Supreme Court of Missouri, First Division

April 23, 1936

Rehearing Overruled November 12, 1936.

Smith & Pearcy, of St. Louis, for appellant.

Bartley & Mayfield, of St. Louis, for respondents.

OPINION

HYDE Commissioner.

This is an action in equity for specific performance of an alleged oral contract to devise by will to plaintiff seven separate tracts of real estate in St. Louis in consideration for plaintiff's services. Plaintiff claims that he fully performed the services agreed upon for the devise of this land during the years of 1915 to 1918, inclusive, for David Nation, Jr., the father of defendants, and under whom defendants claim title to four of these tracts of land by inheritance. Nation sold the other three tracts before he died, and for these plaintiff sought to recover $ 17,500 which he alleged to be the reasonable market value thereof. Defendants' answer was a general denial, a denial of equity jurisdiction, statute of frauds, and statute of limitations. The case was submitted on plaintiff's evidence, and the court entered a judgment dismissing his bill. Plaintiff has appealed from this judgment.

The circumstances out of which plaintiff alleged that the contract sought to be enforced arose are summarized in plaintiff's brief as follows:

'David H. Nation, Jr. (who had been adopted as a son by David H. Nation, Sr., in 1880, out of St. Ann's Foundling Asylum), could neither read nor write. He had been raised by a penurious and miserly father to do rough repair work on the large number of buildings owned by his adoptive father. He and his father lived together as two hermits and in filth, eating refuse from garbage dumps. His ambition was to be the driver of an ash wagon. He had no business education of any sort, was dwarfed in physical stature as well as in mental stature. He was a heavy drinker and was between 35 and 40 years of age at the time of his adoptive father's death on December 22, 1915. His adoptive father died intestate, and his uncle, George Nation, had prevailed upon him to renounce his right to administer on his father's estate and to permit said George Nation, his uncle, to be the administrator. This was done before David Nation, Jr., had received legal advice. Immediately after the death of David Nation, Sr., George Nation had met David Nation, Jr., and they had had several heated arguments. The administrator immediately took the position that David Nation, Jr., was not an adopted son and was not entitled to any part of his adoptive father's estate. It was at this time that he sought advice, counsel, help and aid from his old friend, Wm. J. Stibal, the plaintiff in this case.'

Plaintiff testified that he and Nation had grown up together as boys in the same neighborhood; that they served in the same regiment in the Spanish-American war; that they belonged to the same camp of Spanish-American war veterans; and that he was one of the very few persons who was admitted to the house in which the Nations lived. At the time of the death of David Nation, Sr., plaintiff was night watchman of an engine company of the St. Louis fire department. He worked from 7 in the evening until 6 in the morning, with every fifth night off. Plaintiff's wife testified that shortly after the death of David Nation, Sr., David Nation, Jr., came to their home to see plaintiff, and she then heard about the contract which plaintiff seeks to enforce herein. Her version of the matter was as follows:

'While we were waiting for Mr. Stibal to dress and come downstairs, Dave said, 'What do you think about my uncle, George, what he wants to do to me in regards to my father's estate?' * * * He is going to fight me, and he is going to see that I do not get anything, only what my father gave me. So then he said, 'You know those seven pieces of property I have been telling you about, and what the Court allows me?' * * * He said, 'Bill is going to take me out to see Mr. Pearcy' That is Judge Pearcy now. He was practicing law at that time, and he said he was a good lawyer, and a friend of Mr. Stibal, he said, 'Bill, if you will help me get through this I agree to give you them seven pieces I have in my will for what you have, what you will do for me' He said, 'Because you are my only friend,' and he said, 'I will not leave my uncle George one red penny for the way he is treating me, or his relatives.' ''

Thereafter, plaintiff did assist Nation in making investigations to find witnesses in his case, and also in collecting rentals and making repairs upon his properties. This continued over a period of about three years. During part of the time before the trial Nation lived in plaintiff's home. Plaintiff, however, did all of this during his time off from his work at the fire department and continued to hold his position there. Plaintiff's wife testified that the rents he collected amounted to between fifty and fifty-five thousand dollars, and that Nation paid nothing for board or room at plaintiff's home. In preparation for the suit to establish Nation's title to the property of David Nation, Sr., as an adopted son, from 200 to 400 persons were interviewed. Plaintiff located many of these persons in St. Louis and St. Louis county and went with the attorneys to interview them. He also assisted the attorneys in going through old papers in the residence of David Nation, Sr., and in bringing in the witnesses during the course of the trial. In this trial Nation was successful. Judgment in the trial court was entered in March, 1917, and was affirmed by this court in October, 1919. Title was established to 25 separate tracts of real estate in St. Louis and St. Louis county which David Nation, Sr., owned at the time of his death and to 15 other tracts of real estate in St. Louis which were acquired by his estate at foreclosure sales under deeds of trust owned by him at the time of his death. The property involved was worth several hundred thousand dollars. Certain specific property was conveyed by Nation to his attorneys, as well as money and bonds, in payment of their fees.

At the time of this settlement, one of the attorneys who represented Nation testified to the following conversation with him: 'I says, 'There is a fellow there, Bill Stibal, that you sure ought to take care of, and take care of him handsomely. He sure has been a wonderful help to us in this case,' and he said, 'Don't you worry about Bill Stibal, * * * Bill and I understand each other, and I am going to take care of Bill.' ''

Plaintiff's brother testified that during the trial in 1917 the witnesses for Nation ate lunch at a place where he worked. He said that he had frequently heard Nation ask plaintiff to help him with the case and with his property. He said: 'David Nation and me and my brother was in the court room waiting for the case to come up, and Dave Nation told me the only friend in the world he had was William Stibal, and all that he done for him and is doing for him, or he done for him and is doing for him, he was going to leave him them seven pieces of property, and everything else that he owned at the time of his passing out, he was going to leave him in his will. That is what he told me. * * * He said he was going to leave that to him in his will, and all the things that he had when he passes out.' He testified further, as follows:

'Q. He was going to leave him them seven pieces of property, and everything else that he had, he was going to leave him in his will? A. Yes, sir. At the time he was passing out.

'Q. At the time he passed out he was going to give him them seven pieces of property and everything else that he had in his will? A. All that he had. Yes.'

The captain of the fire company where plaintiff worked said that Nation frequently came to the station to see plaintiff and that he at one time asked Nation what plaintiff charged him for collecting his rents. He said that plaintiff said: ' 'He has not charged me anything. * * * I have agreed to fix Bill up all right in my will.' ' Another witness, whose testimony went back to the time when the contract was alleged to have been made, was a woman who lived in one of Nation's houses who said Nation told her ' 'The fireman is a good friend to me and he helped me out any way'; 'fireman is my own best friend.' ' She said that she washed for Nation and fixed his clothes and that he told her to stay in the property as long as she wanted to because she did lots of things for him. She said, however, that he would not fix anything about the property and that she finally went to live with her grandson.

There were other witnesses who testified to later conversations, during the time Nation was married. One of them said, in 1930, plaintiff told him: 'That he had everything fixed in regard to Mr. Stibal for the services rendered, and he would probably remember him in his will, if anything should happen.' He said: 'That had come up in the line of conversation on several different occasions prior to this said time. I do not know whether it would be in a joking way or whether it was a real, actual promise, but it was said lots of times, Davey, I heard him say, 'Well, when I pass away I won't forget my friend Bill; that Bill had been instrumental in helping me get what I have got, and I would not forget him when the time comes, that I have to pass away.' ''

Another witness testified to a conversation in 1919 in a saloon where he tended bar, as follows: 'I said, 'Davey, why don't you try to fix old Mr. Stibal?' He said, 'I have did it already' That was not only, I can remember away back 1925, he said the same thing; that was at our picnic, down at Affton, Missouri. Before Mrs. Stibal, I put that before him, and, 'that is what I am going to do,' he said, he is...