Walker v. Bohannan

• Decision Date: 31 May 1912
• Parties: MARTHA E. WALKER and MYRTIE E. MAST, Appellants, v. WILLIAM T. BOHANNAN, JOHN BOHANNAN et al
• Court: Missouri Supreme Court

147 S.W. 1024

243 Mo. 119

MARTHA E. WALKER and MYRTIE E. MAST, Appellants, v. WILLIAM T. BOHANNAN, JOHN BOHANNAN et al

Supreme Court of Missouri, First Division

May 31, 1912

Appeal from Nodaway Circuit Court. -- Hon. W. C. Ellison, Judge.

Affirmed.

Cook Cummins & Dawson and A. F. Harvey for appellants.

(1) The evidence in this case is clear and positive and amply meets every requirement of the law as to the making and performance of the contract and fully justifies the court in enforcing the contract in suit. Forrister v. Sullivan, 231 Mo 345; Collins v. Harrel, 219 Mo. 279; Kirk v Middlebrook, 201 Mo. 291; Berg v. Moreau, 199 Mo. 416; Lynn v. Hockaday, 162 Mo. 125; Alexander v. Alexander, 150 Mo. 594; Hall v. Harris, 145 Mo. 614; Sutton v. Hayden, 62 Mo. 101; Gupton v. Gupton, 47 Mo. 37. (2) The removal of plaintiffs from the Dooley farm, where they lived at the time the contract sued on was made, to the Bohannan farm, and the faithful performance of the contract by plaintiffs, in a manner entirely satisfactory to Tilman C. Bohannan, the other party to the contract, for a period of over six years is sufficient consideration. Berg v. Moreau, 199 Mo. 416; Sutton v. Hayden, 62 Mo. 114; Typewriter Co. v. Realty Co., 220 Mo. 522; Williams v. Jenson, 75 Mo. 681; Lindell v. Rokes, 60 Mo. 249; 6 Am. and Eng. Ency. Law (2 Ed.), 703.

Shinabargar, Blagg & Ellison for respondents.

In urging an affirmance of the judgment and decree of the trial court in this case, we place our reliance on the same cases cited by appellants, together with a few others which are no stronger, but which merely show that the law on this subject announced in the latest decisions of this court, has its foundation in an unbroken line of decisions to the same effect. A more complete list of these recent cases on specific performance of parole contracts would include the following: Forrister v. Sullivan, 231 Mo. 345; Collins v. Harrell, 219 Mo. 279; Wales v. Holden, 209 Mo. 552; Kirk v. Middlebrook, 201 Mo. 289; Berg v. Moreau, 199 Mo. 416; Russell v. Sharp, 192 Mo. 285; Rosenwald v. Middlebrook, 188 Mo. 58; Grantham v. Gossett, 182 Mo. 651; Ashbury v. Kirklin, 181 Mo. 658; McKee v. Higbee, 180 Mo. 263; McElwain v. McElwain, 171 Mo. 244; Kinney v. Murray, 170 Mo. 674; Lynn v. Hockaday, 162 Mo. 111; Steele v. Steele, 161 Mo. 566; Alexander v. Alexander, 150 Mo. 579; Hall v. Harris, 145 Mo. 614. The Forrister case contains rules applicable to cases in which it is sought to enforce a parole contract in the teeth of the Statute of Frauds. The announcement there is simply a more explicit statement of the doctrine laid down in Kirk v. Middlebrook, 201 Mo. 289, and quoted with approval in Collins v. Harrell, 219 Mo. 318.

GRAVES P. J. Valliant, J., absent.

OPINION

GRAVES, P. 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 resume 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 forty-seven 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 fifty dollars per year. Early in April Bohannan sent word to Mast 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 fourteen 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 fifty dollars 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: 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: 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 fifty dollars a year for the use of the place, and kept him -- that is, fed him."

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

"By the Court: 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? A. Uncle Bohannan. 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: 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 up 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: 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: 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...