123 P.2d 664 | Okla. | 1941
This is an action against the heirs of an intestate and the administrator of his estate to enforce specific performance of an alleged oral contract whereby the deceased had agreed to leave at his death certain real estate to plaintiff in consideration of personal services to be performed by plaintiff for and on behalf of decedent, or, in the alternative, to recover judgment on creditor's claim theretofore filed for the reasonable value of such services. Judgment for $10,000 was rendered for plaintiff in accord with a general verdict and answers of the jury to special interrogatories. The administrator has appealed.
Defendant administrator takes the position that, since the trial court failed to decree specific performance, and rendered instead a judgment on quantum meruit for the value of the services rendered, the burden was on plaintiff to establish the value thereof according to the accepted rules for measuring value in such case, and insists that the plaintiff failed not only in this respect but *324 failed wholly to establish the agreement in the first instance. It is further asserted that the action is one of purely equitable cognizance, and that the judgment is against the clear weight of the evidence, and contrary to law.
We agree that the action is one of purely equitable cognizance. The principal cause is to enforce specific performance of a contract to convey real property and not for the recovery of money or specific real property. A judgment in the alternative to establish a creditor's claim is sought only in event the cause for specific performance should fail. In 35 C. J. 173, sec. 47, it is said that:
"Such suits belong exclusively to the jurisdiction of chancery and are still triable by the court without a jury under the codes of procedure. The mere fact that plaintiff asks in the alternative to recover the value of the property in case defendant has put it out of his power to make a good conveyance does not change the character of the action."
We find in the text, above, the following statement:
"Where, however, specific performance cannot be decreed, the court cannot proceed to adjudicate upon the question of damages resulting from the breach of contract, which is a strictly legal claim and triable by jury."
But this statement simply means that a party who knows, or should know, that his contract cannot be performed may not sue for specific performance thereof as a subterfuge for procuring a trial in equity on his alternative claim for damages. Cotter v. Gilman,
"Where a court of equity has obtained jurisdiction of a controversy for any purpose, it will retain jurisdiction for the purpose of administering complete relief, and it may to this end determine purely legal rights which otherwise would be beyond its authority."
The action here is purely equitable (Dobler v. Smith,
Therefore we must review the instant case as one of equitable cognizance in an effort to determine whether the judgment of the trial court is supported by the evidence and not against the clear weight thereof. White v. Morrow,
The action of the trial court in denying specific performance is not questioned on this appeal. Our only duty therefore is to determine whether the money judgment for the value of the services is properly supported by the evidence.
The trial court, with the assistance of the jury, found that the contract had been entered into as alleged and that the *325 plaintiff had performed her portion of the same. This finding was based upon the testimony of third parties. The court believed the statements of these witnesses, and its finding in this respect was not against the clear weight of the evidence.
There was the further express finding that the services so performed were of such a character as to permit full, adequate, and complete satisfaction thereof in money.
These findings bring this case within the rule announced in Pancoast v. Eldridge, and Pasley v. DeWeese, above, as follows:
"Where services are performed in pursuance of a contract to leave property by will to the promisee, and the promisor fails to comply with the agreement, and the facts are such that specific performance cannot be had, a recovery may be had against the estate of the promisor for the reasonable value of the services."
The two last-cited cases contain extended discussions relating to the history of cases, and the law announced therein, involving the enforcement of contracts to devise realty in exchange for services and labor, and the recovery of money in lieu of specific performance. We therefore refrain as much as may be practicable from a discussion of those matters. Our function here, as stated above, is merely to determine whether the money judgment is properly supported by the evidence.
So far as our review of this case is concerned, we must consider the judgment as one on quantum recruit for services rendered in full performance of an unenforceable contract.
It appears from the record that the trial court in fixing the amount of recovery was influenced considerably by the value of the real property involved in the contract. Considering the amount of the judgment and the character and duration of the alleged services, it is evident that the court's conclusion was based almost entirely on the value of said property as it stood on the date of the promisor's death. In fact, the court permitted the jury to consider that value in assessing the amount of recovery and then adopted the jury's findings on the subject.
Defendant insists that the value of the property in such case is not to be considered in fixing the value of services, and that the court erred in so doing.
This contention is confirmed by our decision in Pasley v. DeWeese, above. Here the contract was within the statute of frauds. According to the trial court the performance of the contract by plaintiff was not sufficient to remove it from the operation of the statute; plaintiff had not so altered her position as to make restoration impossible or impracticable, an element usually termed necessary to specific performance in such case. In such circumstances the only recovery possible is the reasonable value of the services. Pasley Case, above. There remains only an implied promise to pay, since the contract itself is unenforceable, and the recovery is on quantum meruit. In measuring the value of the services the value of the property agreed to be conveyed is not to be considered, except in particular instances. 25 R.C.L. 307; Flowers v. Poorman,
"Although the evidence as to the oral agreement is admissible to prove that the plaintiff's services were not given gratuitously, without expectation of reward, the promised reward affords no *326
real measure of the plaintiff's quasi-contractual recovery either in Tennessee or Wisconsin. Goodloe v. Goodloe,
The services to be performed by plaintiff under the contract in the instant case were unquestionably so uncertain as to duration and extent as to render the value thereof incapable of reasonable approximation at the time the promise was made. The property to be conveyed could not, under such circumstances, form the basis of an admission on the part of the promisor of the ultimate value of the services to be performed. There are cases in other jurisdictions that would seem to permit the contract price to be considered as some evidence of the value of the services. We cannot adopt that view in this case because of the uncertainties involved as above stated. The contract price can be no indication of the value of the services to be performed unless there is some understanding of the duration and extent thereof when the promise is made. Plaintiff cites Elwood Oil Gas Co. v. McCoy,
Plaintiff cites Anglo-Texas Oil Co. v. Manatt,
There is a generally recognized rule that in actions properly brought on quantum meruit despite the existence of an express contract, the latter may be admitted, not as conclusive evidence of the value of the services, but as a circumstance indicating such value. 71 C. J. 138, sec. 115. But, as stated above, this rule can apply only in those cases where the services to be performed were capable of approximate valuation at the time the contract was entered into.
In some jurisdictions, such as North Carolina and Kentucky, the value of property agreed to be devised in consideration of services and labor is received in evidence as affording some estimate of what the parties contemplated the services to be worth, but in the two states named an oral contract to devise real estate is under no circumstances removed from the operation of the statute of frauds, and the plaintiff's only remedy is quantum meruit. See 58 C. J. 987, n. 28. That circumstance, of course, is of little importance as a distinction, but it shows that cases of this character are treated in those *327 states in a manner widely dissimilar to that accorded them in this and other jurisdictions.
Plaintiff says that the services rendered by her to the deceased were of such an unusual, extraordinary, and intimate nature that the promisor alone was capable of placing a value thereon, and that the value of the land involved represented his estimate thereof, and should constitute the main basis for determining her compensation. Waters v. Cline, 85 S.W. (Ky.) 209.
But the trial court has settled that question here. It was determined that plaintiff's services were of such nature as to be reasonably compensated in money instead of specific performance. Plaintiff has not appealed from the judgment. This particular circumstance is an element to be considered only in determining the question of specific performance. In Kentucky, as we have said above, the plaintiff in such case cannot in any event have specific performance of an oral contract of this character. The court there has adopted the rule of permitting recovery on quantum meruit for the value of the services to be measured on the basis of the previously agreed compensation. This rule is obviously open to severe criticism. In fact, the Kentucky court in a recent decision has held that evidence as to the value of property agreed to be conveyed or devised is incompetent in an action to recover the value of services, unless the services rendered are of such a nature that their value cannot be measured by ordinary pecuniary standards. Hinton v. Hinton, supra.
The burden was on plaintiff in this case to establish her alternative cause of action, including the value of her services. The trial court erred in considering the value of the real property on that question. There is no definite evidence in the record upon which this court may determine the amount of recovery under the rules of equity. The judgment must therefore be reversed and the cause remanded, with directions to grant a new trial on the creditor's claim above mentioned in the manner and form provided by law for actions for the recovery of money (Pancoast v. Eldridge,
It is so ordered.
CORN, V. C. J., and RILEY, OSBORN, BAYLESS, DAVISON, and ARNOLD, JJ., concur. HURST, J., dissents. WELCH, C. J., absent.