Willis v. Zorger

• Decision Date: 04 June 1913
• Citation: 258 Ill. 574,101 N.E. 963
• Parties: WILLIS v. ZORGER et al.
• Court: Illinois Supreme Court

258 Ill. 574

101 N.E. 963

WILLIS

v.ZORGER et al.

Supreme Court of Illinois.

April 19, 1913.

Rehearing Denied June 4, 1913.

Appeal from Circuit Court, De Witt County; W. G. Cochran, Judge.

Suit by Evan Willis against Charles K. Zorger and others. From a decree for defendants, plaintiff appeals. Reversed and remanded, with directions.Herrick & Herrick, of Farmer City, for appellant.

William Munson, of Clinton, L. O. Williams, of Kenney, Fred Ball, Stone & Gray, and John Fuller, all of Clinton (John Fuller, of Clinton, guardian ad litem), for appellees.

CARTER, J.

This is a bill filed in the circuit court of De Witt county by Evan Willis against the heirs at law of Jacob K. Zorger, deceased, to enforce an oral agreement alleged to have been made between Zorger and Willis, whereby Zorger contracted to give a 485-acre farm in De Witt county to Willis. After the pleadings were settled, testimony was taken before a master and reported to the court. Upon a hearing the bill was dismissed for want of equity, and this appeal followed.

The contract sought to be specifically enforced is set out in the amended bill in the following words: ‘The said Jacob K. Zorger promised the complainant that if he would stay upon said premises and look after and care for the same and do the work which he desired done upon said farm as long as he, the said Jacob K. Zorger, should live, then at the death of him, the said Jacob K. Zorger, he, the said Zorger, would give to the complainant for his services, as aforesaid, the real estate hereinbefore described and upon which the complainant then and there resided.’

The record shows that Zorger was a bachelor, and left no heirs except two brothers and the descendants of certain deceased brothers and sisters; that he died as the result of an accident in the year 1910, 86 years of age, never recovering consciousness after his injury; that the appellant was his nephew and was 64 years of age at the time of Zorger's death; that the latter died seised of about 1,100 acres of farm land in De Witt county and several thousand dollars' worth of personal property. The evidence tends to show that the appellant came from his home in the East at the request of Zorger in 1870, and commenced to work for the latter as a farm hand upon 285 acres of the farm now in question, which was then owned by Zorger; that he continued to so work until 1876, when he rented the farm; that after he had farmed the place for about a year he entered into a partnership with Zorger, whereby he was to live upon the farm and carry it on, and he and Zorger were to raise stock (cattle and hogs), feed the grain and hay raised thereon, and pasture the grazing land, and divide the profits and the increase of stock; that during the years immediately following Zorger purchased, at various times, land immediately adjoining the 285 acres and added to the farm run by Willis, to be used for feeding, stock raising, and pasture by the parties; that Zorger furnished most of the capital that was used in the stock business; and that they kept during many years some hundred head of cattle and frequently as many as 200 head of hogs; that they bought large quantities of corn, which was fed to the stock on the farm; that Zorger did most of the buying, shipping, and selling and handling of the money, the expenses of the farm frequently being paid by Zorger by checks upon orders drawn by appellant; that appellant worked very hard on the farm from early morning until late at night, in all kinds of weather. The decree of the circuit court found that all of these facts had been proved, and in addition found that at the time the appellant took possession of said premises they were grown up with brush, undergrowth, and small timber, poorly fenced and but little improved, and that appellant had cleared said land of said brush, undergrowth, and small timber, and had fenced and improved the premises and brought the same into a high state of cultivation as a grain and stock farm; that appellant seldom had any money, and that his living expenses were usually paid by orders drawn by him on Zorger; that Zorger expressly stated to many persons that he had promised to convey to appellant all of the lands in question under and by virtue of an arrangement or contract between the said Willis and the said Zorger, by the terms of which said Willis was to live upon and care for the said premises as long as Zorger should live, and that at the latter's DEATH SAID PREMISES WERE TO BELONG TO WILlis; that willis had remained in possession of the 285-acre tract from the time he went into possession, in 1877, under the agreement in question, and remained in possession of the other tracts composing the 485 acres from the time they were purchased by Zorger until the latter's death. The court further found that by reason of said agreement or arrangement, as set out in said amended bill, not being proven or established by the testimony of any witness or witnesses who had heard said Willis and Zorger state the terms of said arrangement, agreement, or contract in the presence of each other, therefore said contract, agreement, or arrangement had not been satisfactorily proven or established.

It is very evident from the findings in the decree that the chancellor dismissed the bill for want of equity, not because he believed the evidence did not disclose that such a contract as alleged in the amended bill had been made between Zorger and Willis, but solely because the testimony did not show that such agreement, contract or arrangement, or an extension or renewal had been stated by either of them to any witness when they were together or by some one in their presence and with their assent. Counsel for appellees contend that the holdings of this court are in accord with this finding of the decree, citing, among other cases, Worth v. Worth, 84 Ill. 442, 443. In that case this court stated: ‘While we do not hold that a case may not be made out by proof of the declarations of a person, there are, however, respectable authorities that go that far; yet we are not satisfied that the evidence in this case is of that clear, definite, and satisfactory character that it should be to require a court to compel, by decree, the conveyance of land.’ The above was quoted with approval by this court in Standard v. Standard, 223 Ill. 255, 79 N. E. 92. In addition to these authorities counsel for appellees rely upon Geer v. Goudy, 174 Ill. 514, 51 N. E. 623. In this last case the alleged oral contract in question was between a father and a son, and the court, after stating that a court of equity would not enforce a gift of land by a father to his son unless the gift had been acted upon by taking possession and by the expenditure of money in the making of improvements with the knowledge and consent of the promisor, stated that all the authorities agreed that such a promise might be established by proof which was clear, definite, and unequivocal, and that ‘mere declarations made by the promisor or donor to third persons do not constitute such clear, definite and unequivocal testimony.’ It was further stated that the contract between father and son, from the nature of the relation, was required to be proved by evidence different from that which might be required between strangers. Clearly, what was said there was intended to apply to the facts of that case as to an oral contract between parent and child. Counsel also cite Vail v. Rynearson, 249 Ill. 501, 507, 94 N. E. 942, 944, where an oral contract in question was entered into between an aunt and a nephew. In that case there was direct evidence by three witnesses as to the making of the contract, or sanctioning it thereafter, between the parties thereto. In commenting upon the other evidence in the record we said: ‘Such a contract as was alleged must be clearly proved, and no doubt must be left as to its terms. If the proof of the contract rested upon declarations of Mrs. Harris in the absence of the complainant they would be insufficient, and it is equally true that if there was a contract any declarations made by her in his absence would not bind him.’ This is undoubtedly correct.

[1] The declarations made by one party as to a contract with another person cannot bind the latter unless he agrees thereto. It is not said in that case that the second party could not be bound if he had agreed to the contract, even though there was no direct evidence by any one that the contract had been stated by either party to any witness when both parties were present.

[2] While an oral contract of this kind, and all of its terms, must be clearly and satisfactorily proven, we think the weight of authority is that such a contract may be proved by other than direct evidence; that where the facts, includingthe acts of the parties, raise a convincing implication that the contract was actually made, and satisfy the court that its terms and provisions are sufficient to justify its enforcement, it should be upheld. 36 Cyc. 689, and cases cited. In Allison v. Burns, 107 Pa. 50, it was held that where the contracting parties were not parent and child such a contract might be proved by the acts and declarations of the parties, either together or separately. See, also, Loney v. Loney, 86 Md. 652, 38 Atl. 1071;Wright v. Wright, 99 Mich. 170, 58 N. W. 54,23 L. R. A. 196;Karren v. Rainey, 30 Utah, 7, 83 Pac. 333;Bevington v. Bevington, 133 Iowa, 351, 110 N. W. 840,9 L. R. A. (N. S.) 508,12 Ann. Cas. 490. Fairly construed, we think the decisions in this state uphold this rule.

[3] Is the competent evidence in this record of such a nature as to prove definitely, clearly, and unequivocally the terms of this contract? Some 30 witnesses swore to having heard Jacob K. Zorger, during the last 14 to 16 years of his life, say he intended Willis to have the farm, and many of them, going farther, testify that he stated he had arranged with Willis to remain on and care for the...