Walker v. Bohannan

• Citation: 147 S.W. 1024
• Parties: WALKER et al. v. BOHANNAN et al.
• Decision Date: 31 May 1912
• Court: United States State Supreme Court of Missouri

147 S.W. 1024

WALKER et al. v. BOHANNAN et al.

Supreme Court of Missouri. Division No. 1.

May 31, 1912.

1. SPECIFIC PERFORMANCE (§§ 28, 117, 121, 51, 49, 87, 42, 25)—CONTRACTS TO CONVEY.

To warrant specific performance of an oral contract to convey, the contract must be clear and definite, must be proven as pleaded without being established by conversations too ancient, or too loose or casual, the contract must be fair, and must be based on an adequate consideration, the proof must leave no reasonable doubt that the contract was made, and that full performance so far as lies in the hands of the parties to perform has been had, but the work constituting performance must be referable solely to the contract sought to be enforced; proof of mere disposition to devise or convey as a gift, or as a reward for services, being insufficient.

2. CONTRACTS (§ 346)—FAILURE OF PROOF— ACTION ON CONTRACT.

Suit on a contract fails if plaintiff fails to prove the contract pleaded.

3. SPECIFIC PERFORMANCE (§ 121) — ORAL CONTRACT TO CONVEY—EVIDENCE.

In an action for specific performance, evidence held insufficient to show that defendants' decedent agreed to give plaintiffs his property in consideration for their care of him until his death.

Appeal from Circuit Court, Nodaway County; W. C. Ellison, Judge.

Action by Martha E. Walker and another against William T. Bohannan and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

Cook, Cummins, Dawson & Harvey, for appellants. Shinebargar, Blagg & Ellison, for respondents.

GRAVES, C. J.

Action for the specific performance of an alleged oral contract to convey land. The petition avers the contract in this language: "That on or about said date Tilman C. Bohannan, who was then and there blind and unable to see, and who was living alone on said above described lands, and unable to take care of himself, then and there mutually agreed with the plaintiffs that if they would move on his said farm, together with their father, and permit him to reside in their family and render him such care and services in sickness and in health as were necessary, he being blind, until his death, he would give said plaintiffs all his property." The petition then avers full performance of the contract upon the part of the plaintiffs. By answer the defendants admitted the ownership of the land involved by Tilman C. Bohannan in his lifetime, but deny all other allegations of the petition. The trial court found for the defendants, and from such adverse judgment the plaintiffs have appealed. The case calls for a full résumé of the evidence. Tilman C. Bohannan died in November, 1907. The alleged contract was made in April, 1901. For years prior to his death Bohannan had been totally blind, but otherwise was a hale and hearty man for his years. Although blind, he could go around without much assistance, and did many things about his little farm of 47 acres. His death was the result of a stroke of apoplexy. He had complained of feeling bad for but a few days before his stroke. The care demanded by him, as indicated by the evidence, was much less than is usually the case with blind people, and much less than one would expect. The two turning points in the case are (1) whether the contract as alleged is sustained by the required quantum of proof; and (2) whether the things done by the plaintiffs are referable to this contract, or to another admitted contract which Bohannan had with the father of the plaintiffs.

For three years prior to April, 1901, John Mast, the father of plaintiffs, had lived upon the land in question. Most of the time his wife and the plaintiffs lived with him. In 1900 the wife died, and one daughter married. In the early spring of 1901 the husband of Martha died, and John Mast, with the daughter Myrtie, removed from the Bohannan place to a place where the daughter Martha lived. This was about a month before the alleged April contract. During the prior three years Mast had lived there under a contract to the effect that he was to have the use of the farm, and in return therefor was to board Bohannan, and, in addition, pay him $50 per year. Early in April Bohannan sent word to Masts to come over and see him, as he wanted to talk to them or him. In response to this request, John Mast and his daughter Myrtie, then nearly 14 years old, went over, and a talk was had between John Mast and Mr. Bohannan about coming back to the Bohannan farm. The girl Myrtie was in an adjoining room. One clear result of this conversation was an agreement by which John Mast was to take the farm upon the same terms as he had occupied it before; i. e., Mast to board Bohannan and pay him $50 per year for the use of the farm. This contract is not controverted. It should be stated here that Bohannan was an uncle of John Mast's wife, then deceased.

We shall assemble the testimony as to the alleged contract, as it appears from the record.

John Mast said:

"Q. What did he say with reference to these girls and the land? That is what I want to know. A. He said if the girls stayed with him, and took care of him as long as he lived, when he was done with it, it should be theirs.

"By the Court: Q. How? A. He said that if the girls stayed with him as long as he lived, and taken care of him, when he was done with it, it should be theirs. This is all I know about it.

"By the Court: Q. Well, I will get him to state it over again, and state it slowly, and don't say `we.' Name the people. I will get you to go down and fix your attention on the moment of time that you entered his home. Now, tell again what took place. A. Well we were talking, as I told you before, if I would come back there, just as I was before I went away. That is, I was paying him $50 a year for the use of the place, and kept him—that is, fed him.

"By the Court: Q. That is, boarded him? A. Yes, sir. Boarded him.

"By the Court: Q. Then what? A. And then he said that, if the girls stayed with him as long as he lived, what was left should be theirs. Now that is just as near about as I know how to make it—Myrtie and Martha."

On the question of performance of the contract, this witness said:

"Q. Now, after you went back there, you may state to the court what, if anything, these girls, Myrtie Mast and Martha Walker, what they did with reference to the care and attention given to Tilman C. Bohannan? A. Well, they done all the work that was necessary for the women to do about the farm and about the place there, the washing, the cooking and so forth, and waiting on Uncle, you know. Sometimes he would lose things, when he would be out of doors, and he couldn't find it; of course, he couldn't see. Q. You mean by `uncle' Uncle Tilman C. Bohannan? Uncle Bohannan. A. Yes. Q. What other things did they do with reference to care and attention? A. They just give him his care, you know. Of course, you know that they had to wait on him at the table. Anybody knows about that. A blind man can't help himself at the table.

"By Mr. Blagg, Counsel of Defendants: Q. Wait a minute now. Don't argue the case. Tell the facts. A. Well, he couldn't wait on himself at the table, and, of course, we had to wait on him—me or the girls. Q. State whether or not these girls did that? A. Yes, sir. Q. Now, state what else they did for him, if you recall, as to care and attention. A. They waited on him; and the work there, to keep up the place, and all these things, you know, and keep the house in order, is about all, you know, that women can do, I think. They done everything that a woman could do, in regard to— Q. Where did Tilman C. Bohannan live, after you went there in April, 1901, up to the time of his death? A. He lived there with I and the girls. Q. Continuously? A. Yes, sir. Q. State whether or not the care and attention that you have spoken of was given to him continuously from the time you went there in 1901 until the time of his death? A. Yes, sir."

John Hughes, who carried the message from Bohannan to the Masts, as to the contract, testified to certain admissions of the deceased thus:

"By the Court: Q. Now tell me the first thing he said. Don't go and bunch it together, but tell what he said and what you said. A. He asked me if I would go up to where John Mast lived, and tell them to come down; that he wanted to see them."

"By the Court: Q. Well, is that all? A. Yes, sir. * * * Q. Now, you may state to the court whether or not, after going up to inform John Mast that Bohannan wanted to see him, as you have just narrated, you had a conversation with Tilman C. Bohannan about these girls, Myrtie Mast and Martha Walker, had happened to come there? A. How is that? Q. If you had any conversation with Bohannan, after these people had moved back there the second time, after the Mast people had moved there the second time, if you had any conversation with Bohannan as to how they had happened to move back, and what he had told these girls, if anything, with reference to his land? A. Why, yes; I happened along there in a few days after Mr. Mast's folks was down to see him, and I don't know but what I asked him if they was going to come back, and he says: `Yes. I told the girls if they would come and stay with me as long as I lived, why, this place would be theirs.'

"By the Court: Q. Go ahead. What place did he refer to? A. Why the one that he was living on, I suppose.

"By Mr. Blagg, Counsel for Defendant: I object to what he supposed, your honor.

"By the Court: Q. Yes. Did he have any other place? A. Not that I know of.

"By the Court: That is the simple way to get at it. Go on. Q. Did you have any other conversation with him at any time with reference to this matter? A. No, sir; I don't know as I did. * * *"

On further examination, the witness reiterated the statement in this language: "By the Court: Q. Never mind supposing. Be careful and concentrate your mind on exactly what he said, and tell it as near as you can. A. He told me that he told the girls, if they...