*1 proceed- for further the cause remanded reversed decree Bradley and made. rulings herein ings inconsistent not Dalton, GG., concur. adopted as C., is opinion by foregoing Hyde,
PER CURIAM:—The judges All the concur. as the court. v. Thomas R. Madden,
Fred Dieckmann Frieda Dieckmann Estate Administrator, and Administrator Public Ignatz ; Zahrada, known as Zahrada Fritz Fred Zahrada, Leopoldine Pohl, Schwarzbauer, Anna Mrs. donees, consorts, devisees, all the unknown Maria voluntary grantees remote, alienees, immediate, or mesne Ignatz Zahrada, (2d)W. Appellants. S. One, February 26, 1942. Division Denied, Rehearing April Administrator, and Madden, Paul R> Public P. Thomas Detjen Anna Detjen Schwarzbauer, Leopoldine Zahrada *& Pohl and Maria Zahrada. *2 Sigoloff respondents.
Max and Herman G-oralnilt specific performance of an BRADLEY, C. Action alleged Ignatz It is alleged agreement to devise estate. oral agreed them a deceased, orally plaintiffs with devise to Louis, known 3534 Missouri St. lot as certain described inventory The trial $1730. estate listed appealed. named plaintiffs and the defendants court found for wife, alleged it Plaintiffs, husband convey and Zahrada that he would mutually agreed between them will, question lot in “in considera- by deed, to them devise furnishing preparing certain meals plaintiffs food tion of life, him for natural also in the rest consideration of the expense, good keeping premises repair, at their own said necessary materials, the deceased to furnish the and in consideration plaintiffs transporting him in their automobile to visit the grave wife, taking plaintiffs of his and also consideration of amusement and to with friends plaintiffs.” various visit alleged agreed plaintiffs It is “to furnish such meals food and perform obligations agreement all the said under the remainder Zahrada; pursuant agree- the natural life” of “to said oral they fully ment performed services, requested the aforesaid deceased from time to time, accepted deceased said services of therefrom, and the benefits which were all ac- done and cepted agreement upon reliance said made with deceased and devising fulfillment thereof in the aforesaid plain- payment tiffs for said services.” “fully
It carry is further that Zahrada intended to agreement executing said oral whereby a will *3 wherein said deceased would have plaintiffs devised unto the afore- improvements, said real estate and having the deceased his directed attorney prepare last will his and testament provide, but and prior deceased failed to execute same death; has . . his being by that deceased died result as a of struck a street car on the day 1939, 16th October, City of and died in Louis, Missouri, of St. day 1939, on the 18th October, intestate, of and reason thereof defendant, Madden, public Thomas R. as administrator of the Louis, charge estate, took of St. the deceased’s thereof, and reason ’’ party made a defendant herein. were, effect, The general answers denials, except that admission Zahrada, death, the time his owned the lot involved. answer of the next of kin that Leopoldine “defendant Zahrada Schwarzbauer a decedent, is sister of the said Ignatz Zahrada; that defendants, Anna Pohl Zahrada, and Maria are nieces said decedent, being children of Zahrada, Franz predeceased brother decedent, and all that of these defendants said are next of kin and decedent, heirs at law of said surviving left him no children or descendants, either natural born or adoption, widow, nor a and whose father predeceased and mother him.” court, objection over exception, and permitted plaintiff, Fred Dieckmann, testify that he lived in the property at 3534 Missouri in question; that he had known Zahrada “since 1937, about when I moved into his at 3534 avenue;” Missouri that Zahrada then lived on avenue; Illinois that wife died Zahrada’s 1938, and that her after death he continued home;” “to cometo our day” that Zahrada every he saw “about and that he him saw “most my out at house.” gunsmith, Wiget, plaintiffs, testified that he was but L. John side;” “loeksmithing that he had known on the Zahrada since did keys him; summer 1938, that in the made doorlocks keys avenue; at 3534 some door for doors Missouri that he made plaintiffs .talking. was there he heard and Zahrada and that they give if told Mr. and Dieckmann that would (Zahrada) “He him him such favors once in a him his breakfast do while take places go, out in their certain he wanted to automobile to where cemetery places that, and other instance, out to the like that he would living present give they Q. them that were at the time. house They they say? they did do And what A. said would that. In that anything missing conversation he told Mr. Dieckmann if there was or anything any order, why, get like that, door locks he should give repaired. them He said would desire them to him he his breakfast, look after him them the house take to' the said, long ‘Well, that he mentioned as as he lived. Dieckmann perfectly satisfactory,’ that.” would do Wiget “very said that later Zahrada told plaintiffs were good him;” great deal for him;” nobody that he did “a “had ” he depend on; could that he do all else that wanted- to he could for them, (in and that he wanted “to make over that house question) Wiget subsequent to them case of his death.” said that to^tihé he conversation heard repaired between keys locks fitted for the property some some and that “paid repairs.” those -for Harms, daughter testified that her
Nellie had rented plaintiffs light housekeeping from property; rooms in the that her got daughter (witness) sick and that she about 6 there months got that Zahrada plaintiff’s breakfasts at while she ‘‘Q. you was there. Mr. Zahrada Did ever tell he was satisfied with *4 prepared by the meals Mrs. Dieckmann? A. Yes. He said was he style satisfied because them in prepared she a German like wife his did, was well my and he satisfied. Mr. Zahrada in presence stated to Dieckmann, said, ‘Frieda, you he keep repairs up the in this my place,’ said, ‘and prepare he me meals and to amusement take places my life,’ said, of the rest he you.’ ‘and this will left home be to place This conversation took at a church picnic in We were talking, sitting and to priests talked all he the and that this all, very pleased way he said he was well they the with took ‘ go, him around to where he said, to he prop- wanted erty on Missouri avenue will left to Fred Dieckmann and ’ ’’ my Dieckmann on Frieda death. also “I Harms said: observed Mr.
Nellie Dieckmann work in'and building around the 3534 Missouri painted at avenue. He the whole the in garage fence the front. He concreted back steps the cellar and two blocks on the concrete sidewalk. He had a fruit cellar
put they concreted, had place the is a basement, that make, in, put to fruit it it would put to their and he there so a dry pantry.” all be in -He what I would call place. made that in 1939 visited her home and Rose Weder testified them, and that “in our around Zahrada with discussion was Dieck- the Zahrada made mention of treatment house Mr. his the ’’ day him, he remember them. manns of and that some would defendant, Madden, Hoegen, attorney Paul was called aas he called the witness for and testified that was being car; taken Hospital where Zahrada was after struck a street him preparation that Zahrada talked to about the will. “After his pro- with him in to the of a brief conversation reference contents posed will, sketchy from I memo- which conversation made some randums, interrupted came in and people proceedings, various the get drawing and I could no further the matter of the will than his telling pieces owned, me the locations of several estate he people occupied them, as well the his the of some of names planned to private hospital, relatives. It was have removed to a day. but, unexpectedly, Now, giving he died the same me directions drawing will he property his wished the at 3534 stated Missouri avenue devised to Fred Dieckmann. at Herman, the property Illinois avenue to at 3427 Henrietta daughter Joseph Hartt.” by Mr. plaintiffs.
The memo made introduced It was names, Mo.,” and “3534 contained some under which was the name Dieckmann; plaintiff, Illinois,” Fred “3533 under which was the ‘‘ ’’ ‘‘ name, Herman; Henrietta, William under which Joseph daughter.” Hartt witnesses, necessary
Plaintiff other it used but will not be to further from plaintiffs’ state evidence case. Herman, defendants,
Mrs. William testified that she lived property' at 3533 Hoegen memo, Illinois mentioned in the supra. “After wife, She testified: death Mr. Zahrada lived upper downstairs. We had the flat, and he lived down- stairs. Mrs. Zahrada died the 30th of Mr. continued live on avenue Illinois after death of his wife. . . eating I never saw him at the home, Dieckmann except several times Saturday; morning. on but not right I alley live across the from the Dieckmanns. I go never saw him over there about break- fast time.” Herman,
William defendants, testified: “I acquainted Mr. Zahrada. owned He I lived in then and now live in. I had occasion do some maintenance work on Mr. Zahrada’s property on (the property Missouri avenue question). He ac- *5 quired about property I repair done work over there painting and I over there. they bought done When place the I re-
317 basement, repaired I pipes porches in and paired and valves down the garage and painted place. painted and the I the the house and the white, gave front In 1938 I sills coat of fence. the window back; garage 1939 I in the painted place. The house the whole That Only helped. Dieekmann painting. outside That was in 1939. There supplied painting. all. the material for that was Mr. bought the in 1936 a given. place two When first were coats the That painted place. fellow of Miller same summer the name garage painted In 1938 I the painted the house and two coats. Dieek- sills, painted in 1939 me and Mr. place the whole Dieekmann helped larger part mann me. I work. Mr. did the the That all I ever there. helped paint once in a while. about done house, the Q. you Do ate? A. at our know where he He ate rest of the time he ate over at Leber’s saloon Bittner’s saloon.” tending introduced evidence to show that the value Defendants repairs of the work claimed to have been done and made plaintiffs did not exceed $100. 1234, (2d) 877, the al.,
In 337 88 S. W. v. Selle et Mo. Selle subject convey of oral contracts to was considered (2d) length. pointed In that ease S. W. c. some it was l. [88 880] and that in facts, that each case must rest on its own some cases interposed defense, been as a successfully the statute has of-frauds permitted in other the not been to defeat cases statute has recovery. (2d)W. cited—88 S. l. c. cases [See 880.] (2d) S. l. the It is stated the Selle ease W. c. [88 881] that rule, is, contracts, although such general and our rule under oral, by the fully performed the if the contract has been contract is agreeing party specific per to render that a denial the service so party fully performed, the formance would work fraud on has a bar successfully then the statute cannot be invoked as of frauds to recover. (2d) It is stated in Selle S. W.. l. c. that one case [88 881] seeking specific path performance
obstacle of one such easily compensated can contracts is that if the service rendered be in money, specific performance then won’t lie. concurrently present opinion with the
Handed down is the al., 447, Herman 162 That (2d) v. Madden et Mo. S. W. agree specific performance ease of an oral to enforce ment to devise the Illinois avenue mentioned witness, Herman, memo, supra. plaintiff The in that is the case supra. judgment plaintiff for the Herman case was re opinion quotes, al., from Forrister Sullivan et versed. v. 722, required authorize l. c. S. W. Mo. essentials Among separate specific performance such cases. seven essentials following: grounded on an required is the “The contract must be legal adequate consideration and it should made clear to *6 give adequate not mind chancellor that law could of the justice damages, thereby attaining the full end and perfect relief in hence, reaching mischief; whole the interference of the case and justice.” equity necessary rounded is do necessary determine whether present In it will not ease grounded adequate oral contract to devise was on an legal question consideration. It will be sufficient to rule remedy adequate an at law. whether had the Zahrada estate which totaled inventory, Plaintiffs introduced $18,595.03, principally of cash and consisted estate. appear any cash It does not there were debts. $7521.03. certainly In situation it could not be “made clear to the mind of adequate remedy not an the chancellor” that did have any they might against law claim have had the Zahrada estate. toas judgment Hyde should be reversed it is ordered. Dalton, CC., concur. foregoing by Bradley,
PER opinion C., adopted CURIAM:—The judges All as the of the court. concur. Harley L.
Nellie M. Administratrix the Estate Bramble, City Corpora- Company, Bramble, Life Insurance Kansas v. tion, Appellant. Harley Nellie M. Administratrix of the Estate of L. Bramble, Bramble, Appellant, v. Kansas Company, Life Insurance a Corporation. (2d) S. W. 746. One, December
Division 1942. February Rehearing Denied Modify Opinion Overruled, April 16, Motion to