Walker v. Scott, 13217.

• Decision Date: 26 June 1942
• Docket Number: No. 13217.,13217.
• Citation: 164 S.W.2d 586
• Parties: WALKER v. SCOTT et al.
• Court: Texas Court of Appeals

164 S.W.2d 586

WALKER v. SCOTT et al.

No. 13217.

Court of Civil Appeals of Texas. Dallas.

June 26, 1942.

Rehearing Denied September 18, 1942.

Appeal from District Court, Dallas County; Jno. A. Rawlins, Judge.

Action by Neva Walker against Harry D. Scott as independent executor of the will and estate of A. E. Bower, deceased, and another, in statutory trespass to try title, on an express parol contract by which defendant's testate had agreed to give plaintiff and her husband certain realty for personal services to be rendered to testate during his lifetime, or for reasonable value of services rendered under a parol contract in which plaintiff and her husband had agreed to support the testate and perform his household work until his death. From a judgment upon defendant's motion for judgment non obstante veredicto, plaintiff appeals.

Reformed, and as reformed, affirmed.

J. W. Hassell and J. W. Hassell, Jr., both of Dallas, for appellant.

Webb & Webb, of Sherman, and Lively, Dougherty & Alexander, of Dallas, for appellees.

BOND, Chief Justice.

Appellant, in her amended petition on which this suit went to trial, pleaded: (1) Statutory trespass to try title; (2) an express parol contract by which A. E. Bower agreed to give appellant and her husband the real estate described in the petition, in consideration of personal services to be rendered by them, and for food to be furnished, cooked, prepared and served to Mr. Bower for and during his lifetime; and (3) if, for any reason, it be held that she is not entitled to have decreed to her the fee simple title to said property, or to require specific performance of the alleged contract, then, in the alternative, she alleged that she and her husband entered into a contract in parol with A. E. Bower, at his special instance and request, by which she and her husband agreed that they would at once move into his home; that they would furnish all food necessary for the support of the said A. E. Bower, prepare, and serve the same; and that they would do and perform all the household work of the said A. E. Bower, launder his clothes, bedding and linens, and perform all household services for him, incident to and in keeping with his mode and manner of living. It was further alleged that she and her husband performed all the acts contemplated by the agreement throughout the lifetime of A. E. Bower, and until his death, and in consequence, the estate became bound to pay the reasonable value of the services rendered, alleged to be the sum of $18,500.

The defendants interposed a plea of not guilty to plaintiff's action in trespass to try title; pleaded the statute of fraud to plaintiff's plea of specific performance of the alleged parol agreement to give or to sell the real estate to plaintiff in consideration of the services, etc., rendered; and pleaded the two-year statute of limitation particularly and specially as to all the years of service except the last two years of Bower's lifetime; pleaded special and general denial of all allegations in plaintiff's petition, and then alleged:

"That on or about December 20, 1924, said A. E. Bower agreed to permit plaintiff and her husband to move into and occupy said premises and to use the furniture and furnishings therein, in common with said A. E. Bower, and that said A. E. Bower further agreed to pay all charges and bills for water, lights, gas and local telephone service incurred on said premises, and further agreed that said plaintiff and her husband should not be required to pay rent for their use of said property; and that plaintiff and her husband, in consideration of the right to use and occupy said premises and the furniture and furnishings therein in common with said A. E. Bower, agreed to provide and furnish said A. E. Bower suitable meals and agreed to provide such laundry and household services as his needs and comfort should require; that pursuant to said agreement, plaintiff and her husband moved into said premises and occupied and used the same and the furnishings therein, in common with said A. E. Bower, until the latter's death; that during all of said time, said A. E. Bower faithfully performed his obligations under said agreement and permitted plaintiff and her husband to occupy said home and to use all furniture and furnishings therein, and said A. E. Bower paid all charges and bills for water, lights, gas and local telephone services incurred on said premises, and thereby provided plaintiff and her husband with a comfortable home, for which, pursuant to said agreement, he did not charge or receive any rent from plaintiff or her husband; that plaintiff and her husband did not perform for said A. E. Bower any services to which he was not entitled under said agreement, and they received from said A. E. Bower all they were entitled to under said agreement for all services rendered by them to him, and accepted the same in full satisfaction for services rendered by them to said A. E. Bower, and they did not demand and said A. E. Bower did not agree to give, any other or further compensation or remuneration, and that said A. E. Bower did not receive or accept from plaintiff or her husband any services or other things of value for which he was bound or obligated to pay plaintiff or her said husband."

The cause was submitted to a jury on three special issues; none other was requested or suggested by either party. The jury found, (1) that from the year 1924 to date of the death of A. E. Bower, the plaintiff, Neva Walker, and her husband rendered personal services as housekeeper and nurse to A. E. Bower, at his special instance and request; (2) that $7,500, separately listed for each year, was the reasonable value of such services for the 15 years, the last two years being $600 per year; and (3) that no such contract, in terms as alleged in defendant's answer (set out above), was made by the plaintiff and A. E. Bower.

On motion of defendant, non obstante veredicto, the trial court disregarded the findings of the jury as to the value of the services rendered by plaintiff for the years 1925 to 1937, both inclusive, on the theory that plaintiff's cause of action hinged on an implied contract, hence the remuneration for services rendered to deceased for all years other than the last two, was barred by the two-year statute of limitation, and rendered judgment in favor of plaintiff for the sum of $1,200.

The right to sue on a parol contract to give or sell real estate must be conceded. Such suit may be one for specific performance, or in trespass to try title; or on quantum meruit for services performed. Our Statute (subd. 4, Art. 3995) does not declare such contract illegal or void; its validity is presumed, but the right to enforce same through judicial procedure is denied by the operation of the statute only when invoked by the party affected. In this case, the statute was invoked by the defendants, hence the parol agreement to give or sell the real estate in consideration of the services performed was obnoxious to the statute, and for that reason, plaintiff was denied the right to prove the consideration for, hence recover, the alleged real estate, and effectively eliminated such issue from consideration of the jury. However, the issues submitted to and determined by the jury were, we think, all essentials.

As we understand the law, if an agreement comes within the purview of the statute of frauds and the statute is invoked to deny plaintiff the right of performance of some part of it, by the affirmative act of the other party, after plaintiff has fully performed the obligations imposed upon him by the terms of such agreement, and the other party has received and enjoyed the benefits of such performance, the statute has no application to deprive the party who performs, of all remuneration for his services. The liability therefor is determined on quantum meruit.

It will be observed that plaintiff alleged a continuous, indivisible, express parol contract, contemplating personal services to be rendered by herself and husband for and during the lifetime of A. E. Bower, payable only at his death by gift of the real estate. In submission of the issues to the jury, the trial court evidently recognized that the contract was expressly made at the "special instance and request" of A. E. Bower; and that, due to defendant's plea of the statute of fraud, plaintiff could not recover the land in trespass to try title, or otherwise, hence the consideration was relegated to the reasonable value of the services rendered. The third question submitted evidently relates to an express agreement alleged by the defendant, and which has support in the evidence, contradicted by that of the plaintiff. Thus, the ultimate issues of fact having been determined in favor of plaintiff, on the theory of an express parol contract, continuous and indivisible, limitation against such contract would not begin until the death of the person with whom the contract was made, and for whom the services were performed. The trial court therefore was without authority to disregard the findings of the jury. This brings us to a consideration of the evidence to sustain the findings of the jury on the first two issues:

The rule seems to be well settled that where persons, especially where related by blood or marriage, as in this case, are living together as one household, personal services performed for each other are presumed to be gratuitous. A remuneration for such services must be shown by an express contract, or circumstances must exist to satisfactorily show a reasonable and proper expectation or mutual intention that there would be compensation. Such evidence must show a mutual understanding of the parties; no presumption or inferences may be indulged. The petition presents and the charge of the court submits an offer on the part of Bower, and its acceptance by plaintiff and her husband. In absence of specific evidence of the provisions of the...