64 P.2d 571 | Kan. | 1937
The opinion of the court was delivered by
This was an action for the specific performance of an alleged oral contract by which, in consideration of certain services performed by plaintiff for Herman Rehberg, he was to leave a certain farm to her at his death. It was alleged the services were fully performed by plaintiff and that Rehberg died intestate without having carried out the contract on his part. His administrator and heirs at law were made defendants. The trial was to the court, with the aid of an advisory jury, which made findings of fact by answering special questions. The court adopted as its own the findings made by the jury, made additional findings of fact, and rendered judgment in harmony therewith for plaintiff. Defendants have appealed.
The record discloses that Herman Rehberg and his wife, Millie, lived in or near Bennington, in Ottawa county, for many years. They had no children. The wife died intestate October 28,1932; he died intestate September 15, 1934, at the age of 72. At the time of his death he was the record owner of what is spoken of as the home place, a farm of 192 acres, situated about two miles from Bennington, of the value of $6,000, being the property involved in this action. He was also the record owner of 370 acres of other farm and pasture land in that county, his residence property in Bennington, and a substantial amount of personal property, the value of all of which is not shown. About 1912 he leased the home place to Anthony Schuler, the father of Carl Schuler, the husband of plaintiff. Carl lived there with his father. He and plaintiff were married in 1919 and went there to live. In 1930 he became the tenant and continued to live there until the death of Herman Rehberg, and since. Shortly after the death of Herman Rehberg his brother, Julius Rehberg, was appointed and qualified as administrator of his estate. Later he paid past-due taxes on the home place, insured the improvements
This action was brought February 7, 1935. In the amended petition, among other things, it was alleged that in November, 1932, “Herman Rehberg came to the home of this plaintiff and orally proposed to her in substance that if the plaintiff, with the help of her husband, when needed, would look after him, care for him when sick when requested and give him a home with them if he should request it, that he would leave to plaintiff and she should have at his death,” the home place, “and plaintiff would thereby become the owner thereof”; that plaintiff accepted this proposition, and relying upon the contract so made plaintiff, with the help of her husband, fully performed the contract on her part. Details of what was done were alleged. It was further alleged Herman Rehberg orally represented to plaintiff that he had made, or would make such papers as were necessary to vest title to the home place in her at his death, but that he had not done so, and that defendants were claiming title to the property. The prayer was that plaintiff be adjudged to be the owner of the property in fee simple. The answer denied that the contract relied upon was made, or if made that it was performed on plaintiff’s part, pleaded the statute of frauds, and alleged that such services as were performed by plaintiff could be valued and paid in money, and that in any event it would be inequitable to decree specific performance. The reply was a general denial.
At the close of the evidence the court found the contract was made as alleged by plaintiff, that it was fully performed on her part, and that it would be inequitable not to enforce it, and decreed specific performance.
Appellants contend -the contract pleaded by plaintiff is too indefinite and uncertain to state a cause of action in equity; that the findings of the trial court are exaggerated and not sustained by the evidence; that there is no substantial proof of the contract pleaded; that the court erred in rejecting testimony offered by defendants and in admitting certain testimony offered by plaintiff; that the performance shown does not comply with the terms of the contract; that the value of services claimed to have been done by plaintiff can be ascertained easily and paid in money; that the value of the services shown to have been performed by plaintiff is not commensurate to the value of the property involved, and that plaintiff should gain no advantage by filing this action for specific perform
This is largely a fact case. In the perhaps too many cases of this general character which have reached this court, each different from the other on the facts, the rules of law relating to them have become fairly well settled. (See Woltz v. First Trust Co., 135 Kan. 253, 259-261, 9 P. 2d 665.) While it would be better for all parties if the contract such as is relied upon here were reduced to writing in all cases, the fact remains that is not always done. There are or may be bona fide cases in which oral contracts of this character are made and fully performed on one side, but not on the other. In such instances the contract may be enforced by an action in specific performance. The statute of frauds is not a bar to such enforcement. (Smith v. Nyburg, 136 Kan. 572, 576, 16 P. 2d 493.) Since the action is brought and tried after the lips of one of the parties to the contract have been closed by death, to guard against imposition and fraud courts must scrutinize with care the testimony offered to establish the contract and its performance. This is especially true where the testimony comes from the plaintiff, or from his or her . near relatives. But even the testimony of interested parties may be true. Our statute (R. S. 60-2804) makes plaintiff an incompetent witness to transactions or communications she had personally with Herman Rehberg. Hence, the general rule laid down in the cases is that the evidence must be competent, relative and material, it must come from witnesses competent under the law to testify, and when weighed in its entirety it must be clear, convincing and satisfactory. The duty of weighing the evidence and determining its sufficiency primarily is that of the trial court. In this case, realizing the importance of determining the facts, the trial court called to its aid an advisory jury. As in other fact cases, this court examines the evidence, when its sufficiency is questioned, only to see that there is substantial, competent evidence, from witnesses competent under the law to testify, to sustain the findings and judgment of the trial court.
In this case the fact that the contract alleged in the petition was made, and its terms, was established primarily by the testimony of plaintiff’s husband, Carl Schuler. He testified Herman Rehberg told him he had made the contract with plaintiff. Plaintiff was present and testified to the conversation between the two men. Our statute (R. S. 60-2804) does not make her an incompetent witness as to
Appellants argue that the contract pleaded was too indefinite and uncertain to state a cause of action in equity. The words “care for,” “when needed,” and “when requested,” used in the contract are quite indefinite, but when we consider the prior relation of the parties it is quite clear they understood the terms of the contract and the obligations imposed by the language used. Their subsequent conduct and relations confirm this view. So considered, the contract cannot be said to be too indefinite and uncertain to be enforced by a court of equity after it has been fully preformed by one of the parties. Appellants argue the findings of the trial court are exaggerated and not sustained by the evidence. We have carefully examined the findings and the evidence, and considered all counsel say about it, and find no substantial ground for this contention. In a few instances, where the witnesses differed in their testimony as to the extent of certain services, the court obviously believed and used the testimony of the witnesses most favorable to
Appellants argue the value of the services shown to be performed by plaintiff readily could be ascertained and paid in money; that they were inconsequential compared to the value of the property; hence, it was error to decree specific performance of the contract, citing on this point Anderson v. Anderson, 75 Kan. 117, 88 Pac. 743; Woltz v. First Trust Co., 135 Kan. 253, 261, 9 P. 2d 665; Laupheimer v. Buck, 135 Kan. 631, 637, 11 P. 2d 721. These authorities are to the effect that courts of equity will decline to decree specific performance where the services performed, or to be performed under the contract, are inconsequential compared with the compensation to be paid. In applying that principle, however, courts are reluctant to make new contracts for parties. In this case the court cannot say that the contract, when made, was so inequitable in this regard that it should not be enforced. At the time the contract was made Herman Rehberg was seventy years of age. Generally speaking, his health was good, aside from his attacks of heart trouble, the seriousness of which possibly none of the parties realized, and which perhaps he discounted. He might have lived ten or even twenty years, and his health might have been such that the care required would have made the compensation agreed to be paid and accepted look meager. In that event perhaps appellants would have been glad there was a limitation placed in the contract upon the amount plaintiff was to receive. It is only because his death occurred a little less than two years after the contract was made that the compensation seems large. No doubt the fact that he had made a suitable provision for his care for the remainder of his life, whatever time that might be, for a definite portion of his property, was a thing he regarded as of value. The trial court did not regard the value of the property to be left plaintiff so out of proportion to the services to be performed under the contract, and which were performed, as to justify refusing specific performance. This, also, was the view of the advisory jury. The disproportion is not so great
The judgment of the trial court is affirmed.