75 Colo. 358 | Colo. | 1924
delivered the opinion of the court.
At the close of the plaintiffs’ evidence on a trial to the court, without a jury, of this action, whose object was to enforce specific performance of an oral agreement to devise farm lands, the court declined to hear from the defendants, deeming the plaintiffs’ evidence insufficient, and thereupon, on the motion of the defendants, dismissed the action. Plaintiffs ask for reversal.
Albert Schneider, an aged German, owned 320 acres of land in Pueblo County. The result of tilling these lands by himself and tenants was not satisfactory. On this
It appears not only from the complaint but also by the evidence produced at the trial, that Schneider, the owner of the lands, had caused a line to be drawn and a division fence erected thereon separating the 320 acre tract, which was known as the east and west parts, the west part of which was occupied and cultivated by Anton, and the east part by Robert, Fellhauer.
A reading of the evidence leads us, as it led the trial court, to believe, and which in its oral opinion brought up in this record the court emphasizes, that these plaintiffs and their father Anton were led to believe that they would get the west 120 acres of this land when Mr. Schneider died, and we regret, as did the trial court, that the well-settled doctrine, which this court has on more than one occasion declared, prevents the courts from enforcing the alleged contract. It was with the desire and hope, therefore, to find if possible some sufficient satisfactory evidence that we have examined carefully the record to ascertain if there was not therein something, overlooked by the trial court, that has the probative effect required in such cases. Agreements of this kind, when the facts clearly and convincingly prove that they were made, may be specifically enforced. Brown v. Johanson, 69 Colo. 400, 194 Pac. 943. “The promise (to make a will) must be based upon sufficient consideration, and, where the statute of frauds so requires, must be in writing, unless there is part performance sufficient to take the case out from under the statute.” 28 R. C. L. 65. Our statute of frauds so requires. We are constrained, as was the trial court, to say that there was not sufficient evidence in this case that the work and labor and other things done by Anton constituted a part performance of the alleged oral agreement. Neither does it appear by sufficient satisfactory evidence that Anton and his uncle ever made the agreement alleged; There is testimony of numerous witnesses, bearing the stamp of truthfulness and evincing their honesty, that they heard in casual con
The judgment, for the reasons stated, must, therefore, be affirmed.