Faunce v. Woods

VAN ORSDEL, Associate Justice. A bill in equity was filed in the Supreme Court of the District of Columbia by appellant, Mrs. Annie W. Paunee, to enforce the specific performance of a parol contract ,to convey or devise to her three lots situated in the city of Washington, Nos. 208, 210, and 216 L 'Street, Southwest. Prom a decree dismissing the bill, this appeal was taken. It is averred in the bill that one Joseph H, Chivell was engaged in the business of a commission merchant, dealing in sea foods and game at his place of business on the water front at the Eleventh Street Wharves in this city; that Chivell was an uneducated man, incapable of keeping books, or carrying on written correspondence; that plaintiff entered his employment in the year of 1905, at the age of 16 years, in the capacity of bookkeeper, cashier, handler of his moneys and accounts, writing his letters, and attending to the details of his business; that plaintiff faithfully devoted all her time and attention to the said business, established a system of accounts and collections, attended to the credits, paid bills, and looked after .the banking and financial matters generally in connection with the business; that upon one occasion she contemplated leaving his employ, when he stated to her that he would either deed her the three pieces of real estate in question, or would leave the same to her by will, if she would remain in his employ; that plaintiff accepted the offer and continued to work for him, devoting all her [754] time and energy to the business up until, his death; that Chivell repeatedly reiterated his promise and agreement during his lifetime; that shortly prior to his death in 1921 he engaged one Thomas P. Brown, one of the defendants herein, to draw a deed for the property in question conveying the same to the plaintiff; that Brown prepared the deed and arranged to present it to Chivell for execution on the 3d day of May, 1921, but that Chivell died on that day before the deed was executed, leaving no will; and that plaintiff had faithfully discharged all the duties and obligations undertaken on her part to be performed under the agreement. It further appears that plaintiff received wages from Chivell during her employment of $5 per week from the time she began work in 1905 until 1914, when her wages were increased to $15 per week, which continued until the time of her marriage in January, 1920, when, under a further agreement with her employer, her wages were increased to $25 per week, which- continued up to the time of Chivell’s death in May, 1921. Coming to the evidence adduced to establish the making of the alleged agreement, it was stipulated fiint Brown prepared a deed and will for Chivell, which, because of his death, were never presented to him for signature or execution, and which he never saw. The witness Eyler testified that at the time of plaintiff’s marriage she was away a week or so, and during that time Chivell told him that, if she stayed with him as long as he lived or was in business, he intended to turn over to her the three pieces of property. Plaintiff testified to the character of work performed as set forth in the bill of complaint. In respect of the alleged contract she testified as follows: “Q. Tell all of the conversation that happened at the time of the talk between you and Capt. Joe, when your salary was raised to $25 after your marriage. A. Mr. Chivell asked me if I was going to leave his services, and he said, 'If you leave, I will have to close my business; I don’t know anything about the business, and I couldn’t run it;’ and he said, 'If you will stay with me, I will make an agreement with you to give you those three houses on L street.’ I said, ‘I will make the agreement; I will stay with you until you or I die.’ ” Witness David M. Eaunee testified that Chivell told him- in plaintiff’s presence that he was going to give her the houses; “that happened a dozen times before he died. * * * He never told me right before. Miss Annie that he was going to give her these houses more than two or three times; in the other conversations, when she was not present, he just told me what he was going to do, and that was all. * * * He told me that she had agreed to stay with him until he died.” The witness Abendsehein testified that Chivell told him on one occasion, referring to plaintiff, “ 'She has been with me ever since she was a little girl, and,’ he says, 'I have deeded her three houses that, if she will stay with me, she gets it.’ ” The witness Stuart testified to a conversation with Chivell in which he said: '"I have promised Miss Annie, or Mrs. Paunee, to give her three houses. I have promised, provided she will stay with me in my business; in my condition,’ he said, 'I might as well close the doors without her, and she has promised me to stay;’ and then, even then, he intimated that he hoped I would still ,use my advice or my influence with her husband to let her remain with him.” Raymond' T. Paunee, husband of the plaintiff, . testified that, when he and the plaintiff were married, he desired to remove to Norfolk, 'but that she refused, “because she said she had an agreement with Mr. Chi-vell whereby she was going to stay with him until he died.” It will be observed that the only testimony of a meeting of the minds, of a-direct positive agreement between the parties, is given by the plaintiff herself. She was an incompetent witness to testify to the contract, and while her testimony was not objected to, this is a proceeding in equity, tried to the court below, and' reviewable in this court on both questions of law and fact. It will be presumed that the learned trial justice, in entering his decree, considered only the. competent evidence that had been adduced, whether objections were interposed or not. Certainly this court,- reviewing a proceeding of this sort, and before assuming to direct a decree below, will carefully scrutinize the evidence, and reject that which has been improperly admitted, whether over objection and exception or not. We will therefore not only assiime that plaintiff’s evidence respecting the making of the alleged contract was not considered by the court below, but we will refuse to consider it here. With this piece of testimony rejected, the disconnected evidence in regard to the alleged contract amounts to nothing more than declarations on the part of Chivell that, if plaintiff continued to look after his business as long as he lived, he would give her the three pieces of property, either by deed or devise. That he intended to do this there can, be no question, but are [755] such mere statements and intentions sufficient to take the ease out of the statute of frauds? We think not. In the ease of Purcell v. Miner, 4 Wall. 513, 18 L. Ed. 435, the Supreme Court of the United States has announced in no uncertain terms the conditions under which the specific execution of a parol agreement for the purchase of lands may be enforced, in view of the provisions of the statute of frauds. In that case it is made clear that proof of such a contract cannot be made out by mere hearsay, or by evidence of deelarations of a party to strangers to the transaction as a part of chance conversation. A parol agreement, clearly established, may, however, be enforced, where delivery of possession has been made in pursuance of the agreement and acquiesced in by the other party. But the possession must be actual, and “is not satisfied by proof of a scrambling and litigious possession.” The Purcell Case has been followed by the Supreme Court in a number of eases. In Brown v. Sutton, 129 U. S. 238, 9 S. Ct. 273, 32 L. Ed. 664, the court upheld a parol agreement to convey to Mrs. Sutton certain premises in part compensation for the services she and her husband had rendered to one Kenyon. The testimony showed that Kenyon had purchased the property and furnished the money for Mrs. Sutton and her husband to erect a house thereon. The house was erected in pursuance of the agreement. The agreement was proved by the statements made by Kenyon to others in relation to his agreement and his object in purchasing the property and erecting the house; but the court said: “Mr. and Mrs.. Sutton were placed in possession of the premises as soon as the purchase was made, and they were living there at the time the present suit was brought.” In Townsend v. Vanderwerker, 160 U. S. 171, 16 S. Ct. 258, 40 L. Ed. 383, the court held that payment of the consideration money is insufficient to remove the bar of the statute of frauds, but that such payment, accompanied by possession under the contract, constitutes such a part performance as will support a bill for specific performance. The court also recognized another principle that has grown up, especially in the state courts, authorizing the enforcement of specific performance in eases of this sort, where the party to whom the promise is made, with the knowledge and consent of the promisor, “does acts pursuant to and in obvious reliance upon a verbal agreement which so change the relations of the parties as to render a restoration of their former condition impracticable, it is a virtual fraud upon the part of the promisor to set up the statute in defense, and thus to receive to himself the benefit of the aets done by the plaintiff, while the latter is left to the chance of a suit at law for the reimbursement of his outlays, or to an action upon a quantum meruit for the value of his services.” But the court adds that “the entry into possession of the land and the making of valuable improvements thereon is treated by all the eases as one of the most satisfactory evidences of part performance, and entitling plaintiff to a decree in his favor.” These decisions were not changed or modified in the case of Whitney v. Hay, 181 U. S. 77, 21 S. Ct. 537, 45 L. Ed. 758. In that ease, in pursuance of a parol agreement between one Piper and Hay, Piper purchased the lots in suit, built a house thereon, in which he and his wife were to reside with Hay and his wife in consideration of Hay’s caring for them. Hay was put in possession of the property and resided thereon. While Hay was in actual oeeupaney of the premises and carrying out his agreement, Piper put the .title to the property in his niece, the party Whitney. The bill charged that the transfer to Whitney was made for the purpose of defrauding Hay. The court accordingly, applying the rule laid down in the Purcell Case, upheld a decree declaring that Whitney held the title in trust for Hay. In the present case there is nothing to show that the alleged contract tended in any respect to ehange the course of plaintiff’s life, or operated to her material disadvantage. The ehange in such cases must be induced by the contract, or the contract must be induced by a ehange that has already taken place. Neither of these conditions is met in this ease. Nowhere is it contended that this alleged contract was made as the result of the years of service which plaintiff had rendered prior to that time. It is alleged to have been made as an inducement for plaintiff to continue her services from the time of her marriage as long as Chivell lived, a period of about 17 months. The only testimony tending to show any change in the plans of the plaintiff, at that time over 30 years of age, is by her husband, who testified that he desired her to go to Norfolk with him after their marriage, but she refused on the ground that she had agreed to stay with Chivell. This does not amount to such a change in the course of service and the life of the plaintiff as would justify the invocation of this exceptional rule of equity. [756] Especially is this true in plaintiff’s ease, when, as an inducement for her remaining after she was married, her wages were increased from $15 to $25 per week. None of the conditions is here present to clear this ease of the operation of the statute of frauds. Plaintiff was not placed in possession of the property, nor were the relations of the parties so changed that the strict application of the terms of the statute results in the perpetration of a fraud upon the plaintiff. According to her claim, the alleged contract was made less than 18 months prior to Chivell’s death, and her course of service was not materially different during that period from what it had been during her previous employment. Nor does it appear that any loss, damage, or inconvenience was sustained, either to herself or 'her husband, as the result of their remaining in Washington, instead of going to Norfolk. We think it is clear, therefore, that plaintiff is not entitled to equitable relief. This alleged agreement never affected the real estate in question, or the title to it, in such a manner as would have enabled plaintiff to have come into a court of equity during the lifetime of Chivell, and prevented him from disposing of the property in any way he might have deemed proper. This, we think, is a competent test to apply in a case of this sort. The decision is affirmed, with costs.