106 Neb. 327 | Neb. | 1921
This is an action to cancel a deed executed by John
Plaintiff alleges generally that, for many years before Michael’s death, he was a tenant living on Michael’s farm; that “the said John Michael and plaintiff, about the year 1892, entered into a verbal agreement that in consideration of the kindness of plaintiff and his wife, and the services they liad rendered him prior thereto, and which plaintiff agreed that he and his wife would continue to render thereafter, he, the said John Michael, would by will devise to plaintiff the quarter section of land upon which plaintiff was then residing, * * * in said Otoe county, Nebraska. And plaintiff alleges that he and his wife faithfully kept and performed their part of said agreement. They ever remained his true friends and always did everything in their power to ' contribute to his happiness and comfort, and as long as he lived their home was his home, to which he was always free to come and go as it pleased him.” It is averred generally that plaintiff and his family cared for decedent as one of their own family for 12 cr more years; that plaintiff’s family did Michael’s washing, mending and baking and house-cleaning when he lived in his own home alone, he having divorced his wife in 1885; that while plaintiff was a tenant on the land in suit he helped Michael to build a house thereon; that he dug the cellar and the like and boarded the workmen without charge; that he made fences and dug ditches on the farm; that plaintiff moved to Lincoln in 1910, where he has ever since resided; that Micháel came with him and lived in his home as one of the family; that when Michael was sick in a Lincoln hospital plaintiff’s family took delicacies to him; that all such services were rendered without remuneration and in fulfilment of the alleged agreement that decedent would, by his will, give to plaintiff the
At this point the relations that existed between Michael’s family and plaintiff’s family for many years may be noticed. It seems that the two families were near neighbors in Pennsylvania, and that early in the seventies Michael left his Pennsylvania home and came to Nebraska for the purpose of filing on government land. He came alone, leaving his wife and his aged parents in Pennsylvania, expecting them to join him here at a later period. Plaintiff avers that, soon after Michael came to Nebraska, “it was arranged between said Michael and plaintiff that plaintiff and his family should come west with the wife and parents of said John Michael, so that they could all be together and continue the close friendship which had theretofore existed between them;” that, as an inducement to plaintiff to come to Nebraska, Michael .agreed that, if he would do so, he would furnish plaintiff with a quarter section of land and the stock to farm it; tli at in reliance upon such agreement, together with his close friendship for Michael, plaintiff moved to Nebraska with his family, bringing Michael’s wife and his aged parents with him, “plaintiff having charge of said party and arranging the details of their departure and looking after the welfare of the entire party during the trip west;” that upon arrival in Nebraska he resided in a log house on Michael’s land about four or five months, when he concluded that he would leave the farm and work at his trade as a plasterer and a brick-layer, “the said Michael consenting to release him from their agreement that he •should go upon a quarter section of the said Michael’s land;” that he left the land and resided at Lincoln for about eight, months, and then removed to Hickman, about lá miles from Michael’s home, where he continued to reside and work at his trade for five or six years; that Michael then “requested plaintiff to quit working at his
The evidence of both parties is voluminous and we cannot set it out in detail. Five or six witnesses testified on the part of plaintiff, upon whom he relies to establish the averments of his petition. One of these gave his deposition. The witnesses called by plaintiff were, in part, persons who were old-time friends and neighbors of plaintiff, and they testified respecting remarks that were attributed to Michael, which were to the effect that plaintiff and his family had been good to him; that he intended to give land to plaintiff, and the like. It does not appear that any of these statements were made in Remaly‘s presence. In view, however, of the relations between Michael and plaintiff, and in view of the allegations of his petition respecting the inducement offered by Michael to plaintiff that if he would come to Nebraska he would furnish him with land and with stock to farm the land, it appears that there might be some confusion in the memory of the witnesses with respect to the language that they attributed to Michael. The testimony here, as in all cases of this , character, where one of the parties to the alleged contract is dead, must be construed most strongly against the party who seeks to establish the contract. And this for the very good reason that the other party is dead.
The evidence shows that Mr. Michael was an extensive
It appears that Michael built a house on one of his farms for the accommodation of plaintiff’s family, the house
It may be added that, on plaintiff’s part, there is evidence tending to prove that Michael, for many years before his death, frequently called at the office of a prominent laAvyei’, who Avas his counsel, and that there was some conversation between them with respect to Michael’s alleged intention to give a farm to Remaly. But it does not appear in the record that Michael’s counsel was consulted by him at any time Avith respect to such legal procedure, or with respect to the drawing of some written instrument, that it might be advisable to employ, in order' to make effective and to malee certain so important and so unusual a transaction as the gift of a quarter section of Otoe county farm land to one avIio Avas a stranger to the donor’s blood. It stems to us that Mr. Michael, man of affairs that he appears to have been, Avould have consulted counsel on k subject of so great importance if such an intention was seriously entertained by him.
Prom a review of the record, we do not think the case comes within the rule of Kofkca v. Rosichy, 41 Neb. 328, nor does it come within the meaning of subsequent cases bearing on the same subject. On this question we have
It is not out of place to say that the record does not present a situation where, if the alleged parol contract is not sustained, the plaintiff would be deprived of remuneration for the services that he contends he performed for decedent, he having received from Michael, in the form of loans that were not repaid, but were canceled, sums approximating $3,000 or more.
Upon examination of the record, we conclude that the district court did' not err in dismissing the action. The judgment of the district court is therefore in all things
Affirmed.