Wilson v. Dexter, 19639

• Citation: 135 Ind.App. 247, 192 N.E.2d 469
• Case Date: September 18, 1963
• Court: Court of Appeals of Indiana

Page 469

192 N.E.2d 469 135 Ind.App. 247 Clifford D. WILSON, Mrs. Lucille Langness, Mrs. Henry
Sausker, Mrs. C. W. Olson and Franc T. Wilson, Appellants,
v.
Galeman DEXTER, Executor of the Estate of Carrie Loring
Rist, Deceased, the Methodist Memorial Home for the Aged of
Warren, Indiana, Ruth Adomeit, Bernard Adomeit, William O.
Rist and Mrs. Robert Dowden, Appellees. No. 19639. Appellate Court of Indiana, Division No. 2. Sept. 18, 1963.
Rehearing Denied Oct. 22, 1963.

[135 Ind.App. 249]

Page 471

Stevens & Wampler, Plymouth, for appellants.

Kenner, Gorden & Glenn, William S. Gordon, Robert R. Glenn, Huntington, for appellees.

HUNTER, Judge.

This case involves a dispute between the devisees and beneficiaries under a will of Mrs. Carrie Rist and the Methodist Memorial Home (hereinafter referred to as 'Home'), involving certain intangibles that Mrs. Rist had given the Home pursuant to a contract in which she agreed to turn over most of her property in return for lifetime care in an apartment at [135 Ind.App. 250] the Innis Building at the Home. Mrs. Rist lived only forty-two (42) days after entering the Home and was in the Home's hospital the entire time. The trial court, by special findings, found that the decedent entered the Home and the Home performed all its obligations under the contract. The appellants do not directly refute or question the findings of the trial court and there was ample evidence of probative value to sustain the court's findings.

Appellants on appeal attempt to present questions of whether there was a confidential relationship existing between the parties or undue influence exerted by the Home. These questions were not part of appellants' theory in the lower court and it is well established that appellants cannot bring a new theory of their cause of action for the first time in this court. Midwest Oil Company v. Storey (1961), Ind.App., 178 N.E.2d 468; Chambers et al. v. Boatright et al. (1961), 132 Ind.App. 378, 177 N.E.2d 600; 3 West's Indiana Digest, Appeal & Error, k171(1), page 547; Flanagan, Wiltrout and Hamilton, Indiana Trial and Appellate Practice, § 2784, 1961 Supp.

The only questions appellants have properly pursued are:

(1) Decision not sustained by sufficient evidence

(2) Decision is contrary to law

(3) Court erred in overruling motion for judgment on the pleadings

(4) Court erred in admission of certain evidence

(5) Court erred in overruling motion to modify judgment.

Appellants' major contention is 'that the basic consideration of the contract failed'. It is argued that the [135 Ind.App. 251] contract provided for a room in the Innis Building, and that the decedent never received the same. However, the undisputed evidence shows that said appellee had prepared a room in this building for the decedent and it remained available for her use during the period of her residence in the appellee 'Home'. However, the decedent was physically unable to occupy this room and was confined to a bed in the Home's hospital wing. Thus, it appears that the appellee 'Home' had performed its obligations under the contract, and since the question revolves around 'contract consideration', and not 'quantum meruit', we are concerned primarily with the performance of said appellee, and not the benefits received by it. Forester v. Forester (1894), 10 Ind.App. 680, 38 N.E. 426; Davis v. Chase (1902), 159 Ind. 242, 64 N.E. 88; Indianapolis Real Estate Board v. Willson (1933), 98 Ind.App. 72, 187 N.E. 400.

It is also urged that even though the appellee 'Home' performed all it could under the circumstances, the performance

Page 472

of not over $1,000.00 worth of goods and services is not an adequate consideration for the over $20,000.00 it received from the decedent. It is true that the appellee 'Home' received substantially more from this contract than it gave, nevertheless, the consideration that the Home was contractually obligated to give in service by way of life care was an indeterminable amount that conceivably could have ranged from that which was actually given to an amount much in excess of the $20,000.00 received by the Home. Therefore, it seems that appellee in accepting the deceased into its Home, providing those services as enumerated by the contract, and standing ready to continue to perform those services for the remainder of decedent's life, had adequately performed its part of the contract and was [135 Ind.App. 252] entitled to full perfomance under the contract. In Mullen v. Hawkins (1895), 141 Ind. 363, 40 N.E. 797 quoting from Hardesty v. Smith (1851), 3 Ind. 39, we find the following language: 'The consideration agreed upon may indefinitely exceed the value of the thing for which it is promised, and still the bargain stand. The doing of an act by one at the request of another which may be a detriment or inconvenience, however slight, to the party doing it, or may be a benefit, however slight, to the party at whose request it is performed, is a legal consideration for a promise by such requesting party.' See also Wolford v. Powers, Administratrix (1882), 85 Ind. 294.

It has long been the law in this state that where the parties have agreed upon a consideration that is of indeterminable value, the court will not substitute its judgment as to the adequacy of such agreed consideration for that of the parties; but the court will uphold the contract. Kernodle v. Hunt, 4 Blackford 57; Hardesty v. Smith, supra; Taylor v. Huff (1856), 7 Ind. 680; Baker v. Roberts (1860), 14 Ind. 552; Wolford v. Powers, Administratrix, supra; Shade v. Creviston et al. (1884), 93 Ind. 591; Long et al. v. State (1884), 95 Ind. 481; Johnson et al. v. Gwinn et al. (1885), 100 Ind. 466; Adams et al. v. Vanderbeck et al. (1896), 148 Ind. 92, 45 N.E. 645, 47 N.E. 24; Price, Administrator, et al. v. Jones (1886), 105 Ind. 543, 5 N.E. 683; Colt et al., Executors, v. McConnell et al. (1888), 116 Ind. 249, 19 N.E. 106; Polk v. Johnson (1903), 160 Ind. 292, 66 N.E. 752; First Nat. Bank of Peoria v. Farmers, etc., Bank (1908), 171 Ind. 323, 86 N.E. 417; Ditmar, Guardian of West v. West (1893), 7 Ind.App. 637, 35 N.E. 47; Trackwell, Adm'r v. Irvin (1917), 66 Ind.App. 5, 115 N.E. 807. Viewed from this standpoint alone, the fact that due to the early [135 Ind.App. 253] death of the decedent, the appellee 'Home' was required to perform the contract for only a short period of time will not necessarily bar relief, for that must have been a contingency the parties had in mind when they entered into the contract, and the fact that...