Loper v. Estate of Sheldon

MaRshall, J. Tbe view we take of this case renders two-questions pressed upon our attention in tbe briefs of counsel immaterial to tbe final solution of tbe rights of tbe parties. They are these: (1) Did tbe court err in changing tbe verdict, eliminating tbe element as regards its having been agreed that appellant should reside with Mr. and Mrs. Sheldon during their lives? (2) Is tbe contract, as appellant claims it was made, void under tbe statute of frauds because-not in writing and by its terms not .to be performed within one year ? Eor tbe reason given we will pass sucb questions-without further notice. Tbe all-important question presented by appellant is, Did tbe trial court err in bolding that tbe contract was one creating an obligation to convey real estate by devise ? If sucb is-tbe nature thereof, it is plainly void under sec. 2304, Stats. 1898, providing: “Every contract . . . for tbe sale of any lands or any interest in lands shall be void unless tbe contract or some note or memorandum thereof, expressing the consideration,, be in writing and be subscribed by tbe party by whom the- . . . sale is to be made or by bis lawfully authorized agent.” [30] Tlie call thereof, for a contract respecting realty to be in ■writing, is wanting in the one before us. Therefore, the ■vital question for us to solve is, does the contract here deal with realty ? We must solve it by familiar rules for judicial ■construction. The literal sense of the words shows no serious ¡ambiguity, it is true, and, if we were not permitted to go further, the rule would prevail that where words of a contract may be reasonably taken in either of two ways, one that will render it void and one that will not, the latter is to be preferred. Hunt v. Stinson, 101 Wis. 556, 77 N. W. 901. But ambiguity requiring judicial construction may as well arise from applying the contract to the subject-matter thereof as from the literal sense of the words. Ullman v. C. & N. W. R. Co. 112 Wis. 150, 163, 88 N. W. 41; Johnson v. Pugh, 110 Wis. 167, 170, 85 N. W. 641. In either case, in aid of determining the intention of the parties, which of ■course must govern if within the reasonable scope of their words, the agreement may be considered from the precise standpoint, as regards surrounding circumstances, of the parties at the time of entering into the same (Johnson v. Pugh, supra), and the meaning which they subsequently, by their ■conduct, ascribed thereto. • Turning to the evidence we find that it is undisputed that when the contract was made Sheldon’s property consisted largely of real estate, and all parties concerned had in view, in a general way, such property: either the precise property then owned by Sheldon or similar property as regards being mixed realty and personalty. There is other evidence showing that, during the time appellant was performing under the contract, that which she was expected to have a share of was property which Sheldon then possessed, or property of like character. As Sheldon himself put it, the property left when “they got through with it.” Probably the contract did not go so far as to so impress the property owned by him when the contract was made as to preclude his selling it or dealing [31] ■with, it in any other way he might see fit, as owner, subject to the obligation that appellant should in the end have a share of all he possessed, whether real or personal. It is sufficient for the purposes of this case that the agreement clearly contemplated that the property which was to be the subject of bestowal upon her would be realty and personalty. That such was the case there seems to be little room to doubt. That being so, the question of whether the contract falls within the condemnation of sec. 2304, Stats. 1898, is ruled by Ellis v. Cary, 74 Wis. 176, 42 N. W. 252, and Martin v. Estate of Martin, 108 Wis. 284, 84 N. W. 439. The contract under consideration in each of the foregoing cited cases was in all essential particulars like the one before us. In each instance it was said that the agreement established was in part for a devise of land, and the same not being evidenced by any writing signed by the testator was therefore within the statute of frauds. “The fact that it included personal as well as real estate does not take it out of the statute, even as to such personal estate. Such a contract is indivisible, and, failing in part, the whole fails.” In Ellis v. Cary, referred to and approved in the later case, the whole subject now presented will be found fully discussed. Therefore, there is no reason for going over it at this time. The contract declared on, being void, cannot, as appellant’s counsel seems to suppose, form the basis for computing the amount appellant is entitled to recover quantum meruit. Being void for one purpose it is void for all purposes, as regards forming the basis for a right measured in any sense by its terms. It can be legitimately referred to in a helpful way for appellant only to rebut the legal presumption that would otherwise control, that her services were gratuitously rendered, as is generally the case when such services are performed by one residing in the family of another and as a member thereof. Eor that purpose such contract is effective. Thus is permitted to arise the implied contract to [32] pay for the services rendered the reasonable value thereof under all the circumstances, such value, of course, to be determined the same as if the void contract never had existence. Martin v. Estate of Martin, supra. That was the view taken by the learned trial court in submitting to the jury the question to which they answered $260. Since appellant’s right to recover on the facts is limited to a cause of action upon implied contract, such right matured and was enforceable the instant the services were completed, and the six-years statute of limitations (sec. 4022, Stats. 1898) then commenced to run. Demand for payment was not necessary to set the statute in motion. As no services were rendered after September, 1888, which is much more than six years before the death of Mr. Sheldon, it will be seen that prior to such event appellant’s right was extinguished by the statute, as hold by the trial court. It follows that the judgment appealed from must be affirmed. By the Gourt. — So ordered.