121 Neb. 703 | Neb. | 1931
These two appeals are from the same judgment but by different parties. The action from which the appeals were taken was, in part, one to compel completion of performance of an alleged oral contract and, in part, for specific performance of the same contract.. The alleged contract was between the plaintiff and Adolph Svoboda, now deceased. Defendants are the heirs-at-law of Svoboda and the administrators of his estate,' together with other parties to the commercial paper involved in this action.
Plaintiff alleged that in June, 1925, Svoboda “proposed to plaintiff that she should look after his home for him by keeping it in order and doing his scrubbing and laundry work, and that she further furnish him meals at her house as he might require them, and that she generally look out for his welfare and care for him and nurse him if necessary until the time of his death, and that in return he would convey to plaintiff his residence heretofore described and further give or bequeath to plaintiff sufficient of his personal estate to care for her during the remainder of her lifetime. In this connection plaintiff avers that the exact amount of personalty promised to her by said Svoboda was not stated but that he did offer her and promise her on sundry occasions during the remainder of the year 1925, and thereafter, the exact dates plaintiff being now
Plaintiff further averred that on September 15, 1928, Svoboda, in fulfilment of his promise, gave and delivered to plaintiff a promissory note and five certificates of deposit, in all of which Svoboda was designated as payee; that the face of the promissory note was $1,500, and that the aggregate amount of the certificates was $13,772; that Svoboda neglected to assign or indorse the promissory note and the certificates of deposit. Plaintiff prayed that the court order said certificates and note to be duly assigned to her and for a decree requiring the conveyance to plaintiff of Svoboda’s residence property.
The banks issuing the certificates of deposit and the makers of the promissory note were made parties, and each answered, admitting the indebtedness and a willingness to pay the obligations to whomsoever might be determined to be lawfully entitled thereto. The children of Mr. Svoboda
The trial court found for plaintiff on the question that such a contract had been entered into; found and determined that $6,500 was sufficient to keep her for the remainder of her life; and found specifically that the certificates of deposit and note were not delivered to plaintiff by Svoboda with the intention of conveying title to her. From the judgments entered upon the findings, plaintiff perfected an appeal, and the children of Svoboda and the administrators of his estate have also perfected a separate appeal.
This court has on numerous occasions held that contracts of the character of that involved in this appeal will be upheld and enforced if they are established by evidence that is clear, convincing and satisfactory. Among the many authorities so holding are the following: Labs v. Labs, 92 Neb. 378; Overlander v. Ware, 102 Neb. 216; Powers v. Norton, 103 Neb. 761; Remaly v. Sweet, 106 Neb. 327; McEntarffer v. Payne, 107 Neb. 169; Young v. Gillen, 108 Neb. 311; Hajek v. Hajek, 108 Neb. 503. The principal question involved herein is: Does the evidence meet these requirements? The record is voluminous, and only a summary of the facts can be set forth herein.
Adolph Svoboda was of Bohemian birth. He had lived in Knox county for a great many years and had acquired and accumulated considerable holdings of land and money. He was twice married. By his first marriage there were eleven children, two of whom died in childhood or infancy, and nine survived him. His first wife died in 1915. Some time thereafter he contracted another matrimonial alliance, which was terminated in divorce proceedings. From the record it appears that practically all of his holdings of land and personal property were acquired by the assistance of his first wife and their children; that the children worked upon the farms as soon as they were able and con
Some time in 1925 Svoboda purchased a small home in the city of Norfolk, consisting of a lot and a four-room cottage, without any modern conveniences therein. This house was adjacent to that owned by plaintiff. It appears that, at the time, plaintiff was keeping some boarders, and that, within a few weeks after Svoboda moved into his new home, he took some meals at plaintiff’s house. Plaintiff’s son testified that, within two or three weeks after he came there, Svoboda proposed to his mother that she furnish him meals as he should need them, and care for him and look after his home; that his mother at first did not accept because she was contemplating moving to Ohio, to care for an invalid sister, but that a few days later the subject was renewed between Svoboda and plaintiff and that he made the offer to give to plaintiff his home property and sufficient of his estate to take care of her for life, if she would undertake to furnish him his meals and look after him and care for his home. To some extent the wife of this son corroborated him. However, her testimony did not go to the same extent; nor was it in full corroboration of the testimony of her husband. There was evidence on behalf of plaintiff that she furnished meals to Mr. Svoboda in her home and carried meals to him when he was ill; that she cared for him personally; did his laundry work and cleaned and cared for his home.
It is also shown in the record that in September, 1928, when Svoboda was upon his deathbed he requested plaintiff to write a letter to some of his children, asking them to come and take him to the hospital where he could have proper care and treatment. Plaintiff wrote this letter for him apparently on the 12th of September. Mr. Svoboda died on the morning of the 16th. The letter was not mailed by her until the day of his death, and possibly not until after his death. It is further disclosed that on the evening preceding his death plaintiff sent for a doctor; that the doctor came and Mr. Svoboda inquired of him whether he was going to get well. The doctor, after examining him, informed him, in effect, that the chances were that he would not recover, and stated that if he had any business to transact it should be attended to, and that if he had any relatives they should be notified. The doctor testified that Svoboda said he wanted to give his home property to the plaintiff; that the doctor informed him it would be necessary for him to make a deed, or a will, and suggested that he have some one draw a will for him. An attorney was sent for; he arrived about 11 o’clock that night and prepared a form of will, but it was not signed. The attorney testified that Mr. Svoboda refused to sign it and said: “That woman (referring to plaintiff) has had enough.” There was other testimony that Mr. Svoboda said he was too tired and weak to sign the will and asked to be left alone, but stated that it was his last will and testament. There was evidence that on the same evening, and before the attorney arrived, Svoboda asked for the plaintiff and that she came to his room; that he requested her to take out from under his pillow a sweater, or jacket, and that from a pocket therein was taken a manila wrapper, and that Svoboda handed this to the plaintiff. There
From the outline of the evidence given herein and other evidence in the record, it appears that the making of such a liberal contract on the part of Mr. Svoboda is at variance with his life habits. Moreover, if it was made it was upon a very short acquaintance and before he could have known plaintiff very well. It seems to be highly improbable and unreasonable. The discrepancies in the testimony of plaintiff and her witnesses are such as to cause grave doubt as to the credibility of their testimony. Suffice it to say that the evidence is not satisfactory and convincing that such a contract was ever made.
From what has been said, it follows that the judgment of the district court should be and is reversed, and the action of plaintiff dismissed. This opinion disposes of both appeals.
Reversed and dismissed.