72 Cal. App. 2d 533 | Cal. Ct. App. | 1946
Plaintiff sued for specific performance of an oral contract to leave by will a one-half interest in a business partnership. The defendants had judgment and plaintiff’s appeal rests on the ground that defendants are es-topped to raise the defense of the statute of frauds.
Since no attack is directed to a claim that the evidence is insufficient to support any particular finding of fact a brief statement of facts resting on the findings made by the trial court will suffice. Mrs. Martha Wiley and her son James operated as equal partners a furniture business located in San Francisco. In 1914 plaintiff, who was an employee of the partnership, married Martha Wiley’s daughter Zaida. Plaintiff, his wife and Martha Wiley lived together until 1938 when Zaida died. In 1922 these three moved to a pent house on the roof of the store of the partnership provided by Mrs. Wiley where “plaintiff and his said wife paid no rent and no charges for telephone, gas or electricity.” In 1932 plaintiff learned of the insolvency of a furniture business in the city of Oakland and of the desire of the creditors to get someone to “take over” that business. He made some investigations by looking through the windows' of the Oakland store, but made no inquiries of the owner of the business or of any of the creditors as to whether the business was to be closed out by the creditors, sold to an independent purchaser, or run by some individual on behalf of and under the direction of the creditors. While thinking of this proposition plaintiff, his wife, and Mrs. Wiley discussed the prospect and Mrs. Wiley told the plaintiff that “if he would reject the said offer of the
After the death of Zaida in 1938 plaintiff continued to live with Mrs. Wiley until 1940 when he remarried over her objections. Her bitterness over this event continued until her death in 1942. Then plaintiff discovered that she had transferred her interest in the partnership to her granddaughter. The trial court found that the purported contract was unenforceable because of the statute of frauds, Code of Civil Procedure, section 1973, subdivision 6, and Civil Code, section 1624, subdivision 6. It is conceded that this finding is conclusive unless this court should determine as a matter of law that defendants are estopped from raising the plea of these statutes.
There is no merit in the appeal and hence the judgment must be affirmed upon the rules of law so well settled that a brief reference to the decisions will suffice.
The code sections declare that an oral contract to devise or bequeath property by will is invalid. Since their enactment our decisions have consistently held that such contracts are unenforceable. (Hagan v. McNary, 170 Cal. 141, 144 [148 P. 937, L.R.A. 1915E 562]; Trout v. Ogilvie, 41 Cal. App. 167, 173 [182 P. 333]; De Mattos v. McGovern, 25 Cal. App.2d 429, 432 [77 P.2d 522] ; Zaring v. Brown, 41 Cal.App. 2d 227, 231 [106 P.2d 224] ; Smith v. Bliss, 44 Cal.App.2d 171, 175 [112 P.2d 30]; Long v. Rumsey, 12 Cal.2d 334, 341 [84 P.2d 146]; Rotea v. Izuel, 14 Cal.2d 605, 607 [95 P.2d 927, 125 A.L.R. 1424].)
There is complete harmony in the decisions that where the oral contract to leave property by will is in compensation for services rendered or to be rendered, and hence unenforceable under the code sections, the remedy, if any, is in quantum meruit for the value of the services rendered. (Morrison v. Land, 169 Cal. 580, 586, 590 [147 P. 259]; Zellner v. Wassman, 184 Cal. 80, 84 [193 P. 84]; Long v. Rumsey, 12 Cal.2d 334, 342 [84 P.2d 146] ; De Mattos v. McGovern, 25 Cal.App. 2d 429, 432 [77 P.2d 522].)
Cases are cited holding that, notwithstanding the invalidity of the oral contract, equity will grant relief by invoking an estoppel against those taking under the will. Notten v. Men-
The rule of the Supreme Court’s decision in the Notten case is that “under the proper circumstances” a party may be estopped to plead the statute of frauds. But it is fully emphasized in that decision that “in order to raise the estoppel, fraud in some form is essential.” On the first appeal based on the demurrer to the complaint the Supreme Court was impressed with the pleading that the widow had accepted and “retained all the benefits” of the mutual agreement as a devisee under her husband’s will. On the pleading alone it was ' held to be a case where the plea of estoppel might lie. But when the facts were disclosed at the trial and the evidence of “benefits” was produced the plaintiffs’ plea of estoppel vanished.
Here the evidence is that Martha Wiley’s interest in the partnership was worth $112,000. This is the consideration for which appellant insists he abandoned his investigation of the opportunity to engage in another business. No attempt
These repetitious statements of the facts and the findings are made to demonstrate the complete failure of appellant to prove the essential elements of the plea of estoppel. It is said in 10 California Jurisprudence pages 626-7 that: “The whole office of an equitable estoppel is to protect one from a loss which, but for the estoppel, he could not escape. The vital principle of equitable estoppel, it has been said, is that he who by his language or conduct leads another to do what he would not otherwise have done shall not subject such person to loss or injury by disappointing the expectations upon which he acted.” The trial court found that: “In rejecting said offer of the said representative of Corder, Inc., and in continuing with the said copartnership of ‘ J. H. Wiley, The Furniture Man,’ plaintiff did not so alter his position as to incur any unjust, unconscientious injury or loss. ’ ’ And also that: “The said offer was too indefinite for this Court to find whether the acceptance of the offer would have been beneficial or detrimental to plaintiff, even had said representative of Corder, Inc., been authorized to dispose of said business.
It is manifest that appellant could not by any action at law or in equity inject himself into the partnership of J. H. Wiley without the consent of the surviving partner. Under section 571 of the Probate Code the partnership ceased upon the death of Mrs. Wiley and the surviving partner would then settle the partnership and pay what was due to the estate of the decedent. If appellant had any cause of action it was one against the estate for damages for breach of the contract, or in quantum meruit for the value of the services rendered under it. But he did not sue the estate and the evidence showed first, that there was no consideration for the contract and second, that he was paid in full, and overflowing, for the services rendered. The fact that he could not have recovered in an action at law, or that he lost the right by failure to pursue it does not justify the appeal to a court of equity. (De Mattos v. McGovern, supra.)
Morrison v. Land, 169 Cal. 580, 586, 590 [147 P. 259], states the rules which are conclusive here. (P. 586.) “Passing without discussion other requisites, it is elementary that where, as here, the primary right of a party is legal in its nature, as distinguished from equitable, and one for which the law affords some remedy, as here damages by way of compensation for breach of contract, a proper exercise of the equitable jurisdiction will not give equitable relief in any case where the legal remedy is full and adequate and does complete justice. No principle of equitable jurisprudence is more firmly established than this. (1 Pomeroy’s Equity Jurisprudence, sec. 221.) For instance, the exclusive jurisdiction of equity to grant relief by way of specific performance of a contract will be exercised only in those cases where the legal remedy of compensatory damages is insufficient under the circumstances of the case, in the opinion of the court, to do com
The judgment is affirmed.
Goodell, J., and Dooling, J., concurred.
A petition for a rehearing was denied February 13, 1946, and appellant’s petition for a hearing by the Supreme Court was denied March 14, 1946.