Waller v. George

• Decision Date: 29 March 1929
• Docket Number: No. 27088.,27088.
• Citation: 16 S.W.2d 63
• Parties: GEORGE H. WALLER, Appellant, v. MADELINE GEORGE.
• Court: Missouri Supreme Court

16 S.W.2d 63

GEORGE H. WALLER, Appellant, v. MADELINE GEORGE.

No. 27088.

Supreme Court of Missouri, Division One.

March 29, 1929.

Appeal from Platte Circuit Court. — Hon. Guy B. Park, Judge.

AFFIRMED.

James H. Hull for appellant.

(1) The court should have found for the appellant, on the alleged oral contract and decreed specific performance thereof. The rules upon which the right of specific performance of an oral contract to convey the title to real estate in return for promises to be kept and covenants to be performed by the promisee depends, were met and fully established, and the contract should be specifically enforced. Kenney v. Murray, 170 Mo. 700; Berg v. Moreau, 199 Mo. 416; Russell v. Sharp, 192 Mo. 270; Sutton v. Hayden, 62 Mo. 114; Lynn v. Hockaday, 162 Mo. 111; Wright v. Tinsley, 30 Mo. 389; Kirk v. Middlebrook, 201 Mo. 289. (2) To permit to go unenforced oral contracts like the one stated in the petition, when proven according to the standard of proof required, and shown to have been performed, would be to suffer a fraud to be perpetrated. Walker v. Bohannan, 243 Mo. 119; Asbury v. Hicklin, 181 Mo. 658; Goodin v. Goodin, 172 Mo. 40; Cupton v. Cupton, 47 Mo. 37; Sharkey v. McDermott, 91 Mo. 647. (3) Equity decrees relief in such cases for the faithful performance of the contract, fully executed on one side. Russell v. Sharp, 192 Mo. 284; Teats v. Flanders, 118 Mo. 669; McCune v. Graves, 273 Mo. 584; Wright v. Tinsley, 30 Mo. 389; McFall v. Hample, 267 S.W. 54; Merrill v. Thompson, 252 Mo. 714; Fuchs v. Fuchs, 48 Mo. App. 18; Carney v. Carney, 95 Mo. 353; Forrister v. Sullivan, 231 Mo. 345; Signaigo v. Signaigo, 205 S.W. 23. (4) The services rendered (which are conceded) are referable solely to and result from the agreement. All the facts and circumstances in the case, the condition and situation of the parties, corroborate and sustain the theory of appellant's case. Walker v. Bohannan, 243 Mo. 119; McCune v. Graves, 273 Mo. 584; Woodard v. Stowell, 222 S.W. 815; Forrister v. Sullivan, 231 Mo. 345. (5) The enforcement of a specific performance is not a matter of absolute right, but rests in the sound discretion of the chancellor. There is nothing unjust, unconscionable or inequitable in the contract, nor would its enforcement work a hardship or injustice upon respondent. The contract was fair, just and equitable, and having been fully performed upon the one side should be decreed performed upon the other side. Alexander v. Alexander, 150 Mo. 579; Hall v. Harris, 145 Mo. 614; Fuchs v. Fuchs, 48 Mo. App. 18; Berg v. Moreau, 199 Mo. 416; Sharkey v. McDermott, 91 Mo. 647; Merrill v. Thompson, 252 Mo. 714. (6) The court erred in sustaining the exceptions to the report of the first commissioners, and in setting aside their report and appointing other commissioners. R.S. 1919, sec. 2020; Walker v. Garner, 258 Mo. 494. (7) The court erred in refusing to permit plaintiff to offer evidence on the first amended petition as to the character and value of the improvements put upon the 160 acres of land referred to therein. (8) The court erred in refusing to permit plaintiff to prove the improvements referred to in the first amended petition are permanent in character, that they were put upon the land in good faith and that the same enhanced the value of the land at least $3,000. The court erred in setting aside the order theretofore made granting to plaintiff leave to file the second amended petition, and further erred, when the court, of its own motion, struck out plaintiff's second amended petition, and in overruling plaintiff's motion to file second amended petition.

Terrence Riley and A.D. Gresham for respondent.

(1) Under the evidence the court properly found against appellant for specific performance. Walker v. Bohanan, 243 Mo. 119; Forrister v. Sullivan, 231 Mo. 345; Collins v. Harrel, 219 Mo. 279; Wales v. Holden, 209 Mo. 552; Kirk v. Middlebrook, 201 Mo. 245; Snuffer v. Freeman, 274 S.W. 37. (a) The alleged oral contract must be clear, explicit and definite. Walker v. Bohannan, 243 Mo. 119; Hoehn v. Hoehn, 297 S.W. 954. (b) The alleged oral contract must itself be fair and not unconscionable. Walker v. Bohannan, 243 Mo. 119. (c) The proof of the contract as pleaded must be such as to leave no reasonable doubt in the mind of the chancellor that the contract as alleged, was in fact made and that the full performance, so far as lies in the hands of the parties to perform, has been had. Walker v. Bohannan, 243 Mo. 119; Snuffer v. Freeman, 274 S.W. 37; Lamb v. Feehan, 276 S.W. 78. (d) The work constituting performance must be such as is referable solely to the contract sought to be informed, and not such as might be reasonably referable to some other or different contract. Walker v. Bohannan, 243 Mo. 119. (e) Proof of mere disposition to convey as award for services is not sufficient, but there must be shown a real contract to devise by will or convey by deed, made before the acts of performance relied upon were had. Walker v. Bohannan, 243 Mo. 119. (2) The court properly set aside the first commissioners' report and appointed other commissioners, because the commissioners' award stated that money should be paid by one party to the other, which was contrary to the statutes and commissioners' powers. R.S. 1919, sec. 2020. (3) Permission to plaintiff to offer evidence on first amended petition relative to improvements was properly refused. Secs. 1834-1843, R.S. 1919; Snuffer v. Freeman, 274 S.W. 37. (4) Further, under the evidence, appellant was not entitled to anything for improvements. Under all the evidence the decree of the court denying appellant specific performance and partitioning the land equally between the two heirs was proper. Walker v. Bohannan, 243 Mo. 119; Snuffer v. Freeman, 274 S.W. 37.

ELLISON, C.

Suit in equity to enforce an oral contract to convey a farm of 160 acres in Platte County, and for partition of another tract of 120 acres in the same county — both left by the plaintiff's intestate father, Fountain L. Waller. The answer of the defendant, a daughter, included a general denial, a plea of the Statute of Frauds and appropriate affirmative allegations coupled with a prayer for partition of the entire 280 acres. The circuit court found for the defendant denying specific performance and ordering partition.

Commissioners were appointed, who awarded the 120 acres to the daughter and the 160 acres to the son charged with the payment of $750 to the daughter to equalize the two distributive shares. This report was set aside and new commissioners were appointed, who reported the land could not be divided in kind. Thereupon the court ordered a partition sale, which was made.

The case was tried in March, 1925. Over two months thereafter, in June, 1925, when the second report of commissioners was filed, the plaintiff asked to have the case reopened so he might offer evidence showing the character and value of the improvements he had put on the 160 acres, to the end that these might be taken into account in making the partition. The request was refused, as was, also, his offer to prove the improvements was worth $3000. Still later, in September, 1925, some six months after the trial, the plaintiff filed a second amended petition alleging the improvements aforesaid were of the value of $2905, and praying that allowance therefor be made in the partition proceedings if specific performance was denied. This petition was struck out by the court.

The plaintiff appeals, complaining that the court erred: (1) in refusing to decree specific performance; (2) in setting aside the first report of commissioners, awarding the 160 acres to the appellant charged with the payment of $750 to the respondent; (3) in failing to allow appellant credit for the improvements he had put on the 160 acres, and in refusing to hear testimony as to the value thereof.

As will be surmised from the foregoing, practically all the evidence was directed to the specific performance branch of the case, and had to do with the making and terms of the alleged contract and the performance thereof by the appellant and his family. As pleaded the contract was as follows:

"Plaintiff further states that in the year 1914, the plaintiff and his father, the said Fountain L. Waller, entered into an oral agreement whereby said Fountain L. Waller promised and agreed that if the plaintiff would let him, the said Fountain L. Waller, live with him as long as he should live, and make his home with the plaintiff, and give him such care and attention as he might need, and also take care of a horse which the said Fountain L. Waller then owned, he, the said plaintiff should have the use and income from the above described 160 acre tract of land, and at the death of the said Fountain L. Waller, he, this plaintiff, would become the owner and take the title to said 160-acre tract."

The 160-acre farm was the family homestead. The 120-acre tract was a detached body of prairie land all in grass except a few acres. The appellant lived on the home place with his father, the intestate, and when married in 1899 brought his wife there. By 1912 they had four children, and the appellant's whole family of six lived with the intestate, who was nearly eighty-seven years old when he died in June, 1924. He had been a widower for many years.

Prior to 1912 some of the testimony is that the appellant paid the deceased rent on the 160-acre farm. There is other testimony that they farmed the land together. Whatever may be the fact about that, it appears that in 1912 the deceased became interested in pure-bred shorthorn cattle and bought some. The testimony on both sides is that about that time the appellant and the deceased made an arrangement by which the appellant took charge of the farming of the home 160 acres (though the deceased continued to live there) and the cattle were put over on the 120 acres.

Two years thereafter, in 1914, the alleged contract...