265 P. 425 | Or. | 1928
In support of her complaint, plaintiff testified that she was twenty-one years of age and had resided in the Steiger family since her infancy. Concerning the contract, she testified:
"In the fall of 1918, my father came down from Raymond, Washington, to take me away from the home of the Steigers because Mr. and Mrs. Steiger were having domestic trouble and he thought it best for me to live with him, and Uncle Steiger felt very badly about me leaving and discussed the matter with my father and myself; and we discussed the matter a great deal that day, and it was understood and agreed —
"Mr. Smith: Just state what was said, not what was understood. * *
"A. At that time it was understood and agreed that I was to have his property if I would remain there at his home.
"Q. Did you remain there at his home after that? A. Yes.
"Q. And what were your duties? A. Oh, general housework, caring for the house."
She then testified that Steiger died in the fall of 1925, and that she made a search for a will but could find none. Continuing, she testified:
"Q. (On cross-examination.) Now, when did Mr. Steiger first discuss with you giving you any of his *578 property? A. When my father came down to take me away. * *
"Q. Now, just what did he say to you at that time? A. I do not remember. I will not say just what he did say, because I don't remember. The substance of the conversation was, if I was to stay and remain in his household like I had been doing, that I would have his property when he died.
"Q. Don't you remember anything else that was said only what you have related now? A. No, that was several years ago. * *
"Q. You at that time were something like — A. Twelve years old.
"Q. Twelve or thirteen years old? A. Yes. * *
"Q. Don't you remember what was said by your father, how he happened to leave you with Mr. Steiger after he had come down there after you? A. I know my father said he would leave me there, but I don't remember what my father said.
"Q. Did he say how you were going to get the property? A. No."
J.S. Brennen, plaintiff's father, now a resident of Lake County, California, deposed as follows:
"Mr. Steiger said when I went to take Ruby away, `Jim, I did not think you would take Ruby away from me,' and I said, `Uncle, I don't intend to take her away for good, and when this trouble is over I intend to send her back.' Steiger said, `Jim, I am glad you told me that, because Ruby is all that I have got in this world, and when I leave it everything I have is hers.'"
He fixed the date of this conversation as November 10, 1918. He further deposed:
"Some time in the summer of 1922, Mr. Steiger told me that he had his property all fixed, and that everything went to Ruby with the exception of $2,500 to Coney's daughter and about $200 to an old friend." *579
Plaintiff's mother, now Mrs. Mabel L. Bevins of California, deposed:
"The Steigers were great friends of mine, and I let Ruby go to stay with them first for a few days I think in 1909. Several times after that she stayed with them for a short while. In fact, she stayed with them more than she did at home. When I went to Walla Walla, Washington, about 18 years ago, they came and got her, and Ruby has made her home with them ever since. Mr. Steiger never asked my consent to adopt Ruby, but Mrs. Steiger did, and the reason she was never adopted was because I did not give my consent. * * He said everything went to Ruby when he was through with it."
To a number of the neighbors and intimate acquaintances, Mr. Steiger expressed his intention to devise a portion of his property to the plaintiff. To others he said he had made provision for her. To still others he said "Ruby" (plaintiff) "was to have it all." And yet to another near neighbor and close friend, while talking over the disposition to be made of his property, Steiger said that he intended "to take a trip back East to see how his nephews and nieces were situated," and further stated that he "did not believe in giving one too much, but believed in giving it (his property) to a good many."
In our own jurisdiction, and in others as well, the principles of law that govern the decreeing of the specific performance of an oral contract made in the lifetime of a decedent to devise or convey his property have been declared over and over again. That each case of this character must be determined upon its own peculiar set of facts is a principle both apt and familiar. Before a court may exercise its discretionary power to decree specific performance of a contract, not only must the complaint come before it with proper allegations of fact, but such allegations *580 must be supported by proof of the existence of a binding contract that is certain, definite, just, reasonable and mutual in its obligations in all its parts. Moreover, the acts relied upon to remove the cause from the protection of the statute of frauds must be exclusively referable to the contract. Section 808, Or. L., our statute referred to, requires that some note or memorandum of the contract "expressing the consideration be in writing and subscribed by the party to be charged, or by his lawfully authorized agent."
We have already stated that the alleged contract upon which this suit is founded is oral. There is not a written word of record that tends to comply with the requirements of the statute above noted. At the time the contract was alleged to have been made, the only persons present besides the promisor were the plaintiff's father, and the plaintiff, then a child of twelve or thirteen years of age. As we have shown, the plaintiff was originally left by her parents with the Steigers, a childless couple, when she was less than five years of age. They wished to adopt the child as their own, but her mother objected. However, the mother testified, in effect, that, in consideration of their promise to bring the little girl up as their own daughter, and to make her the beneficiary of their estate, she permitted her to live with the Steigers and to make her home with them.
But this suit is not founded upon any contract made with the parents at that time. During the succeeding years, and until she had arrived at about the age of thirteen years, the plaintiff continued to abide in the Steiger home as her home. In the autumn of 1918 domestic discord arose between Mr. and Mrs. Steiger, and terminated four years later when Steiger divorced his faithless wife. It was not until *581 October, 1918, that the contract forming the subject matter of this suit is alleged to have been made.
That a competent person may obligate himself to make his will in a particular way, or to give specified property to a particular person, so as to bind his estate, is not questioned:Stellmacher v. Bruder,
"If the contract be an oral one to devise land, and is reasonably certain as to its subject-matter and its stipulations, equity will decree specific performance, if there has been a part performance of such a character as will take a parol agreement to convey land out of the statute of frauds upon principles which courts of equity recognize and act upon. If the consideration for the contract be labor and services which may be estimated and their value liquidated in money, so as reasonably to make the promise whole, specific performance will not be decreed."
In a suit for the specific performance of a contract for services rendered by an attorney pursuant to an oral agreement by his client to convey land to him in payment for such services, specific performance will be denied for the reason that the attorney could have been completely reimbursed for his services by an action at law on quantum meruit. See Farrin v.Matthews,
In Roadman v. Harding,
The leading case of Cooper v. Colson,
"If equity is to overthrow the statute (statute of frauds) on the ground that, owing to the peculiar character of the facts in a given case, it would be a fraud not to hold one of the contracting parties estopped from setting up the statute, such power should be exercised upon the most clear proof, not only of the contract to devise or convey the land in question, but of the fact that the rendition of the services was wholly referable to the contract to convey, and solely predicated upon that agreement, and that proper and adequate compensation for the services cannot otherwise be made, because of the fact that in reliance upon the contract it appears reasonably probable that the complainant has irretrievably changed the whole course of his life and circumstances in order to fulfill his part of the agreement."
To similar effect, see Pomeroy's Specific Performance of Contract, § 114.
Under the doctrine announced by the case of Cooper v.Colson, supra, this plaintiff has a complete remedy at law, and may recover full compensation for all services performed prior to August 18, 1925, the date of the death of T.W. Steiger, when her services *583 automatically ceased. We will observe that the statute of limitations in such cases does not begin to run until the services have been fully performed. According to the plaintiff's own testimony, the services that were performed by her were not such services as will remove the cause from the protection of the statute of frauds. See the many cases referred to in Pomeroy's Specific Performance of Contract, § 114, notes. We repeat her testimony to the effect that the services she rendered in consideration of the making of the contract were "general housework, caring for the house." It may be, as alleged in her pleading, that she performed services that cannot be calculated by a pecuniary measure. But she has testified to a fact that forecloses any finding by this court as to the consideration rendered for the alleged oral promise made by the promisor.
We are compelled to reverse this case. It is so ordered.
REVERSED.
RAND, C.J., and BEAN and BELT, JJ., concur.
