Appeal of Moyer

Mr. Justice Gordon delivered the opinion of the court, March 3, 1884. We cannot agree to adopt the conclusion arrived at in this case by the learned auditor anil court below. The application is to enforce Vagainst the estate of the decedent an alleged parol contract, for the sale or gift of a tract of some sevent}'’five acres of land in Fox township, Elk county, by Isaac Coleman, deceased, in his lifetime, to his grandson, Charles A. Brown. In order to relieve a case thus presented from .the prohibition. of the Statute of Frauds and Perjuries, certain requisites must be, not inferentially, but clearly set out and proved. There must first of all be a positive and specific contract made by the parties to and with each other, and, as it is said, when, they are face to face; in other words, both must be clearly and expressly bound by and to the terms of the agreement. There must be, especially under such an arrangement [437] as that expressed in the petition, where services are substituted for purchase money, not only the assumption of exclusive possession of the property in pursuance of the contract, but there must be such a performance, full, or in part, as cannot be compensated in the way of damages, and which would render a rescission thereof inequitable and unjust. Where, however, such part performance consists only of labor, clearing and fencing land, and the erection of farm buildings, all of which may be easily valued and estimated in money, a chancellor will not interfere to rescue the contract from the operation of the statute : Ackerman v. Fisher, 7 P. F. S., 457; Hart v. Carroll, 4 Norris, 508; Moore v. Small, 7 Har., 461; McKowen v. McDonald, 7 Wr., 441. But in the case before us we have no contract binding upon Brown ; the parties were never brought face to face. Coleman, as appears by his first will, was ready to enter into the alleged contract, but there never was a moment when he could have enforced such a contract against his grandson. When James Penfield informed the appellee that his grandfather had devised the land to him, on condition of his own and his wife’s maintenance during life, he received no definite answer. “ He seemed,” says the witness, “ to be satisfied, and that was the way he wanted it, and wanted some understanding about it.” This is the nearest we come to a contract on the part of the appellee, and it is scarcely necessary for us to say, that if amounts to nothing in the way of a binding obligation on his part, or which, as against him, Coleman could have enforced. Such being the ease, it is very clear that the declarations of Coleman, however clearly expressed, come to nothing, for they were not binding upon Brown. There being therefore no evidence of an absolute, distinct and unqualified assent by the latter to the alleged agreement, not only was not he bound thereby, but as a consequence, neither was Coleman. Admitting, however, for argument’s sake, that there was an oral agreement such as that alleged in the petition, there is no proof of its performance. It is idle to say that the furnishing of two or three sacks of flour, an occasional quarter of tea, and the hauling of some wood and coal for the use of these old people, was the performance of a contract of maintenance, and especially as the little he did furnish was far more than paid for by the purchase money which he received from the sale made by his grandfather to Jacob Bordorocco. So far as we can gather from the testimony, Brown was not so circumstanced as to be able to support any others than those of his own family. He was in debt; his grandfather gave him a home, and was willing to give him a chance of paying for it in the manner provided in his first will, but when it was. [438] found that he either could not, or would not comply with the proposition therein contained, the testator, as he had a perfect right to do, revoked the devise by the execution of a new will. Nor were the improvements which Brown made upon the seventydive acre tract of such a character that they could not be readily estimated in money, and the witnesses called for that purpose, on part of the petitioner, have no kind of hesitation in putting a cash valuation upon them. There were some repairs to the dwelling-house; the clearing of an acre or two of ground; repairing and building of fences, and the digging of a cave, worth all together, perhaps one hundred and fifty dollars, and for these he was more than compensated by the rental value of the property which he occupied. It is thus manifest that even under the hypothesis of a binding parol contract, there has been nothing shown which would rescue it from the operation of the statute. The conclusion then of this whole matter is, that the plaintiff' had no standing to maintain his bill in the court below; that the conclusions of the auditor were not sustained by the facts of the case, and that the court erred in ordering the administrator to execute and deliver a deed to the petitioner. The decree of the court below is now reversed and set aside; the petition dismissed, and the appellee ordered to pay the costs.