Teats v. Flanders

• Decision Date: 16 December 1893
• Citation: 24 S.W. 126,118 Mo. 660
• Parties: Teats et al., Appellants, v. Flanders et al
• Court: Missouri Supreme Court

24 S.W. 126

118 Mo. 660

Teats et al., Appellants, v. Flanders et al

Supreme Court of Missouri, Second Division

December 16, 1893

Appeal from Buchanan Circuit Court. -- Hon. H. M. Ramey, Judge.

Affirmed.

Benjamin J. Woodson for appellants.

(1) Plaintiff is entitled to have a specific performance of her contract and a decree of this court vesting in her the title to all property claimed in her petition. Davison v Davison, 13 N.J.Eq. 246; VanDuyne v. Vreeland, 12 N.J.Eq. 142; Sharky v. McDermott, 91 Mo. 646; Wright v. Tinsley, 30 Mo. 389. (2) The statutes of frauds do not apply to cases of this character when there has been part performance. Davison v. Davison, 13 N.J.Eq. 246; Van Duyne v. Vreeland, 12 N.J.Eq. 142; Sharky v. McDermott, 91 Mo. 647; (3) Defendants Kneeland and Mrs. Flanders were incompetent witnesses. (4) Plaintiff was a competent witness to testify to the facts that happened after the death of Mrs. Flanders and to the matters testified to by other witnesses. Wade v Hanley, 75 Mo. 394. (5) John F. Tyler was an incompetent witness because there was no foundation laid for his testimony; no establishment of the loss of the letter and of the contents thereof. (6) This court is not bound by the findings of the trial court in equity cases. McElroy v Maxwell, 101 Mo. 294.

Huston & Parrish for respondents.

(1) The petition shows that the third contract charged to have been made between Mrs. Flanders and Mrs. Teats was not performed by Mrs. Teats, and the undisputed evidence clearly shows this fact. (2) Under the evidence the plaintiffs are not entitled to a decree of specific performance. First. There is no evidence -- not an item -- that Mrs. Flanders ever contracted with Mrs. Teats, upon any consideration whatsoever, to leave Mrs. Teats her property when she died. Second. The evidence shows, beyond any question, that Mrs. Teats never performed the conditions on her part which she alleges was the consideration for the promise upon the part of Mrs. Flanders to leave Mrs. Teats her property at her death. To entitle the plaintiffs to recover, they must establish by evidence clear and unequivocal -- by evidence so cogent and forcible as to leave no room for a reasonable doubt on the mind of the court trying the case, of the existence of the contract alleged. Berry v. Hartzell, 91 Mo. 132; Railroad v. McCarty, 97 Mo. 214; Sitton v. Shipp, 65 Mo. 297; Rogers v. Wolf, 104 Mo. 1; Veth v. Gierth, 92 Mo. 97; Paris v. Haley, 61 Mo. 453; Taylor v. Williams, 45 Mo. 80. (3) The evidence must refer to and establish the agreement alleged in the petition, and none other. Sitton v. Shipp, 65 Mo. 297; Emmel v. Hayes, 102 Mo. 186; Ellis v. Railroad, 51 Mo. 200; Rogers v. Wolf, 104 Mo. 10; Berry v. Hartzell, 91 Mo. 132. (4) There is no evidence whatsoever of any contract upon the part of Mrs. Flanders to leave her property to Mrs. Teats. In fact, the only evidence relied upon by plaintiffs to establish that fact, were the mere loose, casual remarks of Mrs. Flanders as to the disposition she intended to make of her property. The contract cannot be established in this way. Johnson v. Quarles, 46 Mo. 423; Berry v. Hartzell, 91 Mo. 132; Sitton v. Shipp, 65 Mo. 297; Forrester v. Scoville, 51 Mo. 268; Ringo v. Richardson, 53 Mo. 385; Kennedy v. Kennedy, 57 Mo. 73. (5) The contract, if indeed there was one, was within the statute of frauds and void, and there was no such part performance thereof as to take it out. Story, Equity Jurisprudence [12 Ed.], sec. 764; Johnson v. Quarles, 46 Mo. 423; Ringo v. Richardson, 53 Mo. 385; Kennedy v. Kennedy, 57 Mo. 73; Berry v. Hartzell, 91 Mo. 136; Rogers v. Wolf, 104 Mo. 1, and authorities cited; Paris v. Haley, 61 Mo. 453; Underwood v. Underwood, 48 Mo. 527. (6) Mrs. Teats was not a competent witness, and the court did not err in refusing to permit her to testify. 2 Revised Statutes, 1889, p. 2056, sec. 3918; Messimer v. McCray, 113 Mo. 382, and authorities cited. (7) This court will defer to the decision of the lower court, who saw and heard the witnesses on the trial. Erskine v. Loewenstein, 82 Mo. 301; Chouteau v. Allen, 70 Mo. 290; Berry v. Hartzell, 91 Mo. 138.

OPINION

Gantt, P. J.

This is a suit in equity, for specific performance of an alleged agreement by Mrs. Velveria Flanders, to leave all of her property at her death to Mrs. Teats, in consideration of services rendered.

The petition is material to a proper understanding of the issues involved. It alleges: "That plaintiffs are now and have been husband and wife since the day of 18 --. That on or about the day of 1865, Nancy C. Teats came to the city of St. Joseph, Missouri, at the age of fifteen years, and her name was then Nancy C. Martin; that she was poor and had to support herself. That she then and there met and agreed with Richard M. Flanders and Velveria Flanders, his wife, in the city of St. Joseph. Said agreement between said parties was in substance as follows, to-wit: That said Nancy C. Martin was to go to the home and house of said Richard M. and Velveria Flanders, who then had no children, and to live with them as their child, doing and serving them as their child, with the promise and agreement that they would legally adopt her as their child. That in pursuance of said agreement she went immediately to their house as such child, with the full knowledge and consent of said parties, and entered into said relation, discharging all her duties as their child with the full understanding of all of said parties that she was to be so adopted, and at their death she was to receive and inherit all their property. And she continued to reside, and discharge all her duties as such child, such as working in and around their said home, doing cooking, sweeping, sewing, general household duties, and bestowing upon them a child's affections to their entire satisfaction and in full compliance of their said agreement until about the day of 1867, when said Richard M. Flanders died at said city, leaving no children. That said female plaintiff from said day continued to reside with said Velveria Flanders as her child, under the other and further agreement between said Velveria Flanders and said female plaintiff, that she was to continue to so reside and act with her in the relation as aforesaid, and at her death she was to receive and inherit all of said Velveria Flanders' property. That she did continue to so reside with her, said Velveria Flanders, under the agreement made with her after the death of her said husband, doing and performing the things and work for her in like manner as she did before his said death, and as hereinbefore stated, until about the day of 187 --, when she was married to plaintiff, Charles Teats, which said marriage was contracted and entered into with the full knowledge and consent of said Velveria Flanders. The plaintiffs then, with the consent of Velveria Flanders, went to live by themselves. That afterwards said Velveria Flanders requested plaintiffs to come to her house in St. Joseph and take care of her during her old days. That in compliance with said request, they resided with her and took care of her for about five years, discharging all of said duties as her said child, with the further promise that she, the female plaintiff, at the death of said Velveria Flanders was to receive all of her property. That said Flanders, during all of said time received and accepted her said work and services under said agreement. That plaintiff, relying upon and believing she had been so adopted as such child by said Velveria Flanders, continued to work and perform her said duties as aforesaid, and received nothing for said labor except her board and clothes, to the entire satisfaction of said Flanders. That defendants knew of the relation, and well understood that this female plaintiff was to so inherit their said property. That Velveria Flanders died about 1889, intestate, at the city of St. Joseph, leaving as her only collateral kindred and heirs at law these defendants. That the said female plaintiff did not know or find out that she was not regularly and legally adopted as their said child until after their death in 1889, but expected at that time that she would receive all of her said property. That said Velveria Flanders at her death was seized of the following described real estate, to-wit: Lot 5, block 67, in Patee's addition to St. Joseph, Buchanan county, Missouri, and personal property after paying all of the debts of said estate, amounting to $ 3,000, which is now in the hands of Abner T. Kneeland, defendant, who administered upon the estate of said Velveria Flanders. Wherefore plaintiffs pray the court to declare specific performance of said agreement and to that end that all right, title, interest and estate in and to said real estate which the said Velveria Flanders had at the time of her death, and which vested in defendants as heirs at law of said Velveria Flanders to be divested out of them and that the same be vested in the plaintiff, Nancy C. Teats, and that the rights of said plaintiff to the personal estate of said deceased and remaining in the hands of said administrator be declared and established, and the rights of said plaintiffs in and to said estate be established as fully to all intents and purposes as though she had been formally and lawfully adopted as a child and heir at law of said deceased, and for all other proper relief."

The answer, omitting caption, is as follows:

"Now come the defendants, and for answer to plaintiff's petition herein deny each and every allegation therein contained.

"The defendants for further answer and defense to the said petition of the said plaintiff and to the pretended cause of action therein stated, state that said pretended contract in said plaintiffs'...