White v. Poole

• Decision Date: 07 November 1906
• Citation: 74 N.H. 71,65 A. 255
• Parties: WHITE et al. v. POOLE et al.
• Court: New Hampshire Supreme Court

65 A. 255

74 N.H. 71

WHITE et al.

v. POOLE et al.

Supreme Court of New Hampshire. Grafton.

Nov. 7, 1906.

Exceptions from Superior Court; Chamberlain, Judge.

Writ of entry by Edward E. White and another, executors of William H. White, deceased, against William H. Poole and another, in which defendant William H. Poole filed a disclaimer, and in which defendant Annie L. Poole filed a bill in equity for the specific performance of a parol contract made with the testator. Facts found, decree of specific performance awarded, and case transferred on plaintiffs' exceptions. Exceptions overruled.

See 62 Atl. 494.

In the summer of 1899 Mrs. Poole, being then in poor health, decided to make her home in Cuba, and notified White, who was her uncle, of her intention. He wanted her near him, and, in order to induce her not to remove to Cuba, he promised that if she would remain in Hanover he would buy a lot they should both approve, erect a house upon it, and give her the land and building as soon as the house was finished. His offer was accepted, the lot was selected, he built the house and put her in possession of it as her property, and she has occupied it ever since under a claim of ownership. It was his intention to convey the property to her, but he died in November, 1903, without doing so. In 1902, White, with the knowledge and consent of Mrs. Poole, tried to exchange the house and lot for a farm in Hanover which he thought would be more suitable for her and might at some time produce an income, and this was one reason for his failure to convey the property to her. When the case came on for trial it was ruled that the plaintiff in the bill in equity should produce her evidence in support of the allegations thereof, and after a hearing the court made a decree for her in accordance with the prayer of the bill, and ordered an entry of judgment for the defendant in the action at law. The plaintiffs in the action at law thereupon moved that the decree and order be set aside and that judgment be ordered for them in the writ of entry. The motion was denied, subject to exception. The plaintiffs offered to show by White's widow that while the house was in process of erection he said he was building it to rent. The evidence was excluded, and the plaintiffs ex cepted. William H. Poole was permitted to testify to matters happening in the lifetime of White in so far as they tended to establish his wife's claims, and she was permitted to show by one Storrs that her husband came to him shortly before White's death for the purpose of arranging for a transfer of the property to her. To both of these rulings the plaintiffs excepted.

Henry F. Hollis and Prescott F. Hall, for plaintiffs. Smith & Smith and Edward A. Lane, for defendants.

YOUNG, J. The plaintiffs claim that the fact Mrs. Poole lived in the house for three years without enforcing her agreement with White estops her to set it up now that he is dead. This claim has no merit, for the court has found that the reason a conveyance was not made in his lifetime was because both White and Mrs. Poole thought a farm would be better for her, and that as soon as they found they could not trade the house for one he arranged to convey the house to her, but died before he could do it.

The test to determine whether a parol contract is definite enough to sustain a decree for specific performance is the same that it would be if the contract were in writing. 4 Pom. Eq. Jur. (3d Ed.) § 1409. A written contract is sufficiently definite whenever it is reasonably certain from the contract itself and acts the parties have done in performance of it what land is intended. Troup v. Troup, 87 Pa. 149; Work v. Welsh, 160 Ill. 468, 43 N. E. 719; Ottumwa, etc., Ry. v. McWilliams, 71 Iowa, 164, 32 N. W. 315; Overstreet v. Rice, 4 Bush (Ky.) 1, 96 Am. Dec. 279; Bigelow v. Armes, 108 U. S. 10, 1 Sup. Ct. 83. 27 L. Ed. 631. When the agreement in this case is considered in connection with what the parties did to carry it into effect there is no doubt as to the la to which it relates; consequently the description is sufficiently definite to sustain the bill in equity.

If the plaintiffs' refusal to convey the property to Mrs. Poole will operate as a fraud on her. her action is not barred by section 1, c. 215, Pub. St. 1901. White v. Poole, 73 N. H. 403, 62 Atl. 494; Weeks v. Lund, 69 N. H. 78, 81, 45 Atl. 249; Stillings v. Stillings, 67 N. H. 584, 42 Atl. 271; Brown v. Drew, 67 N. H. 569, 42 Atl. 177; Peters v. Dickinson, 67 N. H. 389, 32 Atl. 154; Brown v Prescott, 63 N. H. 61; Seavey v. Drake, 62 N. H. 393; Abbott v. Baldwin, 61 N. H. 583, 585; Johnson v. Bell. 58 N. H. 395; Kidder v. Barr, 35 N. H. 235, 255; Burnham v. Porter, 24 N. H. 570, 580; Ayer v. Hawkes,...