Appeal from Circuit Court, Jackson County; Thomas B. Buckner, Judge.
SMALL, C. I.
This is a suit for specific performance of an oral contract alleged to have been made by George W. Main, deceased, in his lifetime, to will the plaintiff certain real estate in Kansas City, Mo., and an annuity of $400. The defendant Albert C. Stowell is administrator of the estate of George W. Main, deceased, and defendant Carrie Byram is the sister and sole heir of said Main.
The allegations in the petition as to the contract and the performance thereof by the plaintiff are as follows:
"That in the year 1906 plaintiff resided in Kansas City, Mo., and said George W. Main came to her house and shared a room with another man. That at the time he had some employment which paid him small wages, but stated to plaintiff that he would inherit a considerable sum of money some day, and meanwhile, if plaintiff would give him his board and take care of him, he would repay plaintiff when he came into his inheritance by giving her a home with enough to live on besides to compensate her for caring for him and making a home for him. That plaintiff accepted such offer and made said agreement with said George W. Main, and, relying upon said promise, plaintiff furnished board to said George W. Main, and also did his washing, ironing, and mending, all without compensation, during all the time that he lived with her; that said George W. Main, with the exception of one year, lived at plaintiff's house from 1906 until his death in 1916.
"That in the year 1911 the father of said George W. Main came to Kansas City from Illinois and purchased and gave to said George W. Main the following described real estate in Jackson county, Mo., to wit: The south 4.39 feet of lot 92 and the north 21 feet of lot 93, Oglesbay's First addition to the city of Kansas, now Kansas City.
"That, immediately after said real estate was purchased for him by his father, said George W. Main `reiterated his promises to plaintiff and specifically agreed verbally with plaintiff at her home in Kansas City that in consideration of what she had done and was doing for him he would will her said real estate at his death, and the sum of $400 per year as long as she should live; that in January, 1913, the father of said George W. Main died, and in January, 1914, his mother died intestate, leaving real and personal property to said George W. Main of the value of $35,000.
"That from that time until his death said George W. Main remained at the home of plaintiff, doing nothing but consuming inordinate quantities of intoxicating liquors; that he finally became blind and utterly helpless, and was confined to his bed for months before his death, during all of which time he required the attention of plaintiff day and night.
"That, relying upon the promises of said George W. Main to will her said real estate and to further provide for her as above stated, plaintiff provided a home for him and furnished him board and did his washing, ironing, and mending, and when he was sick plaintiff waited upon him and nursed him day and night until his death, all without compensation.
"That, though plaintiff has fully kept and performed said agreement on her part, said George W. Main died without specifically performing the said contract on his part and without conveying said real estate or otherwise vesting the title to the same in her and without bequesting to her by will the sum of $400 per year as long as she should live, and neither of said contract promises have been performed either wholly or in part, though said George W. Main died possessed of said real estate and of personal property of the value of $30,000.
"That the defendant Carrie Byram is a sister of said George W. Main and his only heir at law, and said Claude Byram is the husband of said Carrie Byram. * * *
"Wherefore plaintiff prays judgment," etc.
The answer put the allegations of the petition hi issue. It also alleged that the contract sued on was not in writing, as required by the statute of frauds, and that said real estate was mortgaged by said Main in his lifetime for $500 to the knowledge of the plaintiff, and after his death the defendant Carrie Byram, believing she was the sole heir of said Main and entitled to said real estate, paid off said note for $500, and that the plaintiff stood by and permitted her to do so without any claim to said property.
The reply admitted the execution of said deed of trust, but denied that plaintiff had knowledge thereof, and alleged that the deed of trust was paid off by said defendant with the money received from her brother's estate as his heir.
After hearing the plaintiff's evidence, the lower court found for the defendants, and dismissed the petition. Plaintiff appealed to this court.
Plaintiff's testimony was substantially as follows:
Mrs. Todd Mason, the daughter of the plaintiff, testified on direct examination:
That she knew said Main in his lifetime. That in 1906 she and her mother, the plaintiff, were living at 1522 Lydia avenue, and that said Main came to their house to room. He was out of work at the time. He continued to room there until March 27, 1916, when he died. That he did not come there to board, but only to room, but "we fed him; he was out of work." He paid for his room a short time.
"Q. Just tell, as near as you can recollect, what he did say to your mother in regard to paying for the room and board after he became unable to pay for it. A. He said that some day he would pay up for this. He would give mother a home, if she would take care of him, and feed him, and let him room there, and be one of the family. He said some day he would have some money. He continued to live at our home and take his meals there. He got his money when his mother died. He just said some day he would have some money. He continued to live at our home and take his meals there. He actually came in possession of his money. He said that Mother should have a good home and money besides, about a year after he first came there. His
father and mother were then living. His father died first. He was at our house two or three times. Mr. and Mrs. Main came to make him a visit, and he liked it so well and was so pleased to think that George was so happy with us and we took such good care of him (stricken out by court on objection of defendants). Mr. Main bought a home at 1516 Lydia avenue and gave it to George and Mamma (the words "and Mamma" stricken out on defendants' motion).
"Q. Now, after this house or this piece of property was bought by George Main's father and given to him, state what, if any, conversation that you heard between your mother and George Main in regard to that particular piece of property, about what would be done with it.. A. He said, `Old lady, that home is yours, or a better one, with all the taxes and everything kept up'; not an old house, but a new house with the insurance paid and kept in repair, and $400 a year. He said, `You ought to get along nicely on $400 a year.'
"Q. What length of time elapsed after the death of George Main's father before his mother died? A. I think about a year and a half.
"Q. And when was it that George Main came into the possession of his property; was it after the death of his mother?
"Mr. Hayward: I object to leading questions.
"Q. When, with reference to the death of his mother? A. Yes, sir; after the mother died he came in direct possession.
"Q. Now, what conversation, if any, did you hear between George Main and your mother in regard to this amount of money that he would leave her, if any, for her support? A. Oh, I have heard him say lots of times, I can't just name the date or anything like that, but he said it a good many times.
"The Court: Said what?
"A. He said that Mamma should have the home, that home or one better, with $400 a year.
"Q. What was the condition of his health at that time? A. At that time his health was good, only he was a man that drank an awful lot.
"Q. But did his health change after that? A. Yes, sir; he went blind; he was pretty near totally blind for six or eight months, something like that.
"Q. Now, during that time what services did your mother render him? A. Everything. "Q. What did she do for him? A. She waited on him and washed his hair and neck and ears and gave him a bath and washed his feet; he was unable to do anything; she had to lead him from one chair to another, and to the bathroom, and in fact she waited on him like he was a baby.
"Q. Was he confined to his bed at any time? A. No, sir; he sat mostly in a chair.
"Q. Now, what, if anything, was said about this extra service that your mother was rendering for him, as to how that would be paid? A. He said Mamma would be well taken care of.
"Q. And did he say when or how much or in any particular? A. Only he thought $400 a year and a good home.
"Q. At the time, or after the father bought this, home, where was this number? A. 1516 Lydia.
"Q. And did you and your mother and George Main live in that home for a while? A. Yes, sir.
"Q. For about how long? A. Four or five years.
"Q. And from there where did you go? A. To 1206 Virginia.
"Q. Did George Main continue to own that home at 1516 Lydia? A. Yes, sir; he collected the rents there.
"Q. What was the reason for leaving 1516 Lydia? A. There were negroes all around us, and we were the only white family left in the block [except another family across the street].
"Q. And after you moved to 1206 Virginia who collected the rent at 1516 Lydia? A. George Main.
"Q. What did he do...
