Gillett v. Maser

Hooker, J. Complainants’ bill prays the specific performance of an alleged oral contract for the conveyance of real estate, in consideration of complainants’ agreement' to move upon one of the two parcels of land involved, and furnish board and lodging for one W. S. Allen, the owner, during the remaining years of his life. The case is purely one of fact, and the controlling question relates to the terms of the agreement, under which the complainants moved upon the premises and rendered service for- Mr. Allen. It is unnecessary to discuss the testimony at great length. The complainants’ mouth is closed by the statute, and there is no positive evidence of [518] the transaction. Mrs. Gilbert’s children testify to admissions made by Allen, tending to show the terms of the agreement to .have been as claimed by the complainants, while acquaintances of the parties relate conversations corroborative of such claim. The former are shaken by some inconsistencies, while the latter are consistent with another version. But the conduct of the complainant and her husband, both before and after Allen’s death, is out of harmony with the claim now made, and we are convinced that the agreement alleged was not made, although we incline to the opinion that the deceased at times contemplated, if he did not intend, to give the property to the complainants at his death. This result was reached by the careful judge who tried the cause below, and who saw and heard the witnesses, which increases our confidence in the correctness of our conclusion. The decree is affirmed, with costs. Blair, Montgomery, Ostrander, and Moore, JJ., concurred.