Opinion
No. 42796.
May 12, 1952.
APPEAL FROM THE CIRCUIT COURT OF OSAGE COUNTY, RANSOM A. BREUER, J.
John P. Peters, Linn, J. Richard Garstang, Chamois, for appellant.
J. H. Mosby, Linn, for respondents.
Adah White instituted this suit in the circuit court of Osage County, Missouri, against Ward Cochran and other collateral heirs of Otto J. Nowack, deceased, and the administrator of Mr. Nowack's estate, for the specific performance of an alleged oral contract to deed or will to plaintiff certain real estate in Chamois, Missouri, on which was situated a store building, and the contents of the store there operated by Mr. Nowack during his lifetime, plaintiff alleging full performance of her part of the contract. The trial chancellor found the issues for defendants and plaintiff appeals.
Plaintiff contends the evidence established that Mr. Nowack "promised and agreed to give the store building and the contents of the store" to plaintiff "if she would stay with him and carry on the store business as long as he lived, which she agreed to do"; and that she performed her part of the contract "from 1943, when the agreement was made, until the death of Otto J. Nowack."
Equity, to safeguard against fraud and perjury, imposes several requirements respecting the probative value of the proof necessary to take an oral contract out of the statutes requiring certain contracts, or deeds, or wills to be in writing, and among these are: "(a) The conversations relied on as proof of the contract should not be too ancient, loose, or casual. * * * (c) The terms of the contract should be so clear and definite as to free it from ambiguity, and leave no doubt in certainty of terms or intendment. (d) The proof must show, not only that some contract was made, but that the contract counted on in the bill was made. (e) * * * There must be an absence of doubt or equivocation throughout the whole case in pleadings and proof. From end to end, it must be made out beyond a reasonable doubt, and the state of the proof must bring the case within the reason of the exception to the statute, viz., that not to perform in kind, or in sort, would itself be a fraud. * * * (g) A mere testamentary disposition to devise by will or a mere benevolent disposition to convey by deed by way of gift or as a reward for services not plainly provoked by and bottomed on the contract in suit will not take the case out of the statute." Forrister v. Sullivan, 231 Mo. 345, 373, 132 S.W. 722, 730; Feiden v. Gibson, Mo.Sup., 218 S.W.2d 105, 107[1-3], citing cases; Farina v. Madden, Mo.Sup., 163 S.W.2d 82, 85[4].
Mr. Nowack died intestate on April 24, 1950. He was a bachelor and his heirs at law are the named defendants. He conducted a general store in Chamois for many years, acquired the property here involved in 1938 or 1939, and continued his business at said location until his death. He owned additional real and personal property at the time of his death.
The testimony favorable to plaintiff established that she worked for Mr. Nowack as a clerk in the store for 15 to 16 years preceding his death and during the later years assisted in its management. The witnesses were acquainted with Mr. Nowack and plaintiff.
Arthur Walker testified that one day in 1947 he came into the store and Mr. Nowack mentioned Mrs. White. "I says: `I understand she is going to quit and go to the shoe factory.' `No,' he says, `she isn't. I promised to give her everything I had if she would come back and work for me, and take care of my business.'" Plaintiff was not in the store at the time.
Mrs. Alma Enlage testified that in the Spring of 1949 Mr. Nowack "told me that Mrs. White wanted to leave him and get a job that paid more. And he said he told her if she would stay with him, he would give her the store when he died for compensation, for he didn't feel like he paid her enough." "He said he was going to give the store to Mrs. White, when he was gone the store would be hers."
Mrs. Georgie Day, plaintiff's sister, testified that one morning in 1947 before Mr. Nowack "got down bad sick" she was in the store and a customer came in and Mr. Nowack told plaintiff: "`Go ahead and wait on him, this is all yours anyway.'"
Rex White, plaintiff's son, worked for Mr. Nowack at times, and testified that Mr. Nowack told him several times, the last time being in December, 1949, that his mother had been with him for a number of years and: "Some day after I am gone this store will belong to your mother."
John D. Fuerstenwerth, of Gerald, was in the wholesale notion business and sold goods to Mr. Nowack for many years. He testified that one day he went into the store and Mr. Nowack was sick, and when witness told him he was fortunate to have someone look after his business, he answered: "`Well, I guess I am.' `But,' he said, `it ain't for nothing.' He said: `Mrs. White is going to get the store. And so why shouldn't she look after me?'"; that he told witness that a half dozen times, "that she was going to get it when he was gone."
William A. Ferguson testified that Mr. Nowack told him in January, 1949, "`I want her [plaintiff] to stay here as long as I live, and when I am gone, this is hers'"; "`This will be hers'"; and that he had told plaintiff that.
Christ Lenhoff testified that he sold goods to Mr. Nowack; that Mr. Nowack "told me several different times that he had made a will, and that he had willed the store and the building to Mrs. White"; that Mrs. White was entitled to it; that he did not pay Mrs. White much; that "`she will get it all anyway when I die.'"
Mrs. Minnie Kemple testified that in answer to an inquiry what would happen when he passed away, Mr. Nowack said: "`That will go to the window and orphans,'" and he pointed to plaintiff.
Robert McKinney testified that Mr. Nowack told him on two different occasions, once at the warehouse about six months before he died, "that Mrs. White wanted to leave and go to work in the factory. He says, `I can't pay her what she would make in the factory, but if she stays with me until my death, I am going to deed her the store.'"
Albert Brock testified that he visited Mr. Nowack about two months before he died and asked whether plaintiff and he were married and he answered: "`No, I am not.' `Well,' I says, `you ought to sell the store.'" Mr. Nowack said: "`When I am gone she knows it is here.'"
For defendants: Ward B. Cochran was a nephew of Mr. Nowack and lived at Sappington, Missouri. He testified that on a number of occasions over the years following the death of Mr. Nowack's mother in 1925, Mr. Nowack wanted him to come to Chamois and operate the business, stating he would have the papers drawn up to transfer the store and merchandise and his mother's home place to witness, subject to the condition that in the event witness predeceased Mr. Nowack, the property would revert to Mr. Nowack; that one of these conversations occurred in 1943 in the store in plaintiff's presence and when Mr. Nowack stated he had the best grocery business in Chamois and directed the inquiry to plaintiff: "`Don't we?'", plaintiff answered: "`Yes, we do'"; that Mr. Nowack frequently renewed his offer to witness, the last offer being made about a week prior to his death, at that time witness informed him he would check into certain matters, give it consideration, and let him know in two weeks, but Mr. Nowack passed away before anything was done, and that the only statements Mr. Nowack ever made with respect to the status of plaintiff was that she was a clerk at the store.
Mrs. Leona Heinrich, a sister of Ward Cochran, testified she heard Mr. Nowack make his offers to Ward Cochran on "quite a few occasions," and that while they were visiting him during the Christmas holidays in 1949 Mr. Nowack stated he would remodel the store building and insisted that Mr. Cochran secure an attorney and draw up the papers.
Ward B. Cochran was appointed administrator of the estate of Otto J. Nowack, deceased, on April 26, 1950, and immediately went to Chamois. The store was closed. He went to plaintiff's home and she gave him the key to the building. While the appraisers and he were in the building, plaintiff's son rex came to the store and took away a rack of clothes which he said belonged to him. There is nothing in the record that plaintiff or plaintiff's son made claim at that time to any other property.
Witnesses for defendants also testified that during the last three years of his life Mr. Nowack was ill and confined to his rooming house; that Mr. Nowack stated he would never make a will; that his legal heirs would receive his money; and that, about two months before his death, he stated he had no will. After his death no will or deed or other paper was found relative to the disposition of his property.
It does not necessarily follow that plaintiff is entitled to a decree if plaintiff made a prima facie case, as the whole record, including the cross-examination of plaintiff's witnesses and their credibility and the evidence favorable to defendants, is for consideration. The testimony of plaintiff's witness Mr. Walker tended to establish a contract, as did the testimony of Mrs. Enlage and, perhaps, Mrs. Day, but did not establish with particularity the contract sued on. The testimony of plaintiff's other witnesses was to the effect Mr. Nowack intended or desired that plaintiff receive the store or the store building and its contents at his death, which is not sufficient to establish a contractual obligation on his part. Cases cited supra. In applying the principles of law involved we give due deference to the findings of the trial chancellor, and conclude plaintiff failed to establish the oral contract sued upon by that clear, cogent and convincing evidence required in suits of this nature.
Defendants-respondents filed a motion to dismiss the appeal for defects in plaintiff's brief. Let the motion stand overruled without prejudice.
The judgment is affirmed.
WESTHUES and BARRETT, CC., concur.
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court.
All concur.