Barry v. Beamer

The object of this action is to secure the specific enforcement of an alleged oral agreement entered into by and between George J. Garey, in his lifetime, and the plaintiff, by which, it is claimed, the first named agreed to will all his property to the plaintiff herein.

The court gave plaintiff judgment. Thereafter, a motion for a new trial was made and the same denied by the court. Prom the order denying said motion this appeal is taken.

The complaint alleges that the plaintiff and George J. Garey were brother and sister; that in the month of October, 1900, the plaintiff, who was then about seventy-three years of age, was, and had been for some years, a resident of Marysville, and at that time owned a small farm near that city, making her own living from the products of said farm; that she was living alone, and that, at the time we are speaking of, she was visited by her brother, George J. Garey, who was a bachelor, aged about sixty-three years, residing at Ash valley, in Lassen county, where he was engaged in the business of raising cattle and where he owned considerable property, both real and personal; that Garey was then in ill-health and declared to the plaintiff that “he was living in a very rough and comfortless manner” in Lassen county, and that he “was dependent entirely upon hired help for assistance in his said business of farming and raising cattle, and was dependent upon such persons as he could hire to keep house for him and to give him the comforts of life, and was, a great portion of the time, compelled to live among men without such comforts as may be acquired through the assistance and society of women, and was compelled to do his own cooking, washing and mending, and general housekeeping; that he was growing old and had not a great while to live, and that he greatly desired

The answer denies all of the allegations of the complaint, and alleges that Carey had supported and maintained plain

The contention of the appellants is that the evidence is insufficient to sustain the essential and important findings of the court. The complaint urged by appellants that, among its findings, the court found certain probative facts to be true without evidence to justify such findings, appears to be well founded. But we think that, notwithstanding that fact, the court’s findings of the ultimate fact derive sufficient support from the evidence. It is manifestly unnecessary to make findings of the probative facts, or, in other words, of the evidence introduced for the purpose of proving the ultimate fact or the fact in dispute; but such findings will not vitiate the findings of the ultimate fact, if the evidence is of sufficient strength to support them. And, it may be stated, that the rule is that even where probative facts only are found, yet if the ultimate fact flows as a necessary conclusion therefrom, the findings are sufficient. (Emmal v. Webb, 36 Cal. 197 ; Riddell v. Brizzolara, 56 Cal. 381 ; Packard v. Johnson, 57 Cal. 183 ; Bull v. Bray, 89 Cal. 286 , [ 26 Pac. 873 ].) Therefore, it follows that if the evidence as shown by the record justifies the findings that the agreement as pleaded, and for the enforce

The court, as we have seen, found that said agreement was made by the deceased and plaintiff; that the plaintiff carried out and performed her part thereof; that the deceased violated the terms of the agreement by failing to devise, by his last will and testament, all the property of which he died seised absolutely to the plaintiff; that, on the contrary, he gave, by will, all his property, except a life estate therein granted to plaintiff, to two nieces, and, as a conclusion of law, found that the plaintiff was entitled to a specific performance of said agreement.

The only questions in the case, then, are: 1. Does the evidence support the findings? 2. Is the agreement as pleaded and as found by the court to have been made, one which a court of equity may and ought to enforce ?

These questions may be answered by an examination of the evidence as presented and the equitable principles which recognize contracts of the nature of the one here alleged, resting, as this does, entirely in parol, and which sustain the enforcement of the terms thereof.

The evidence addressed to the merits of the controversy and received by the court on behalf of the plaintiff is undisputed, so far as any attempt to impeach or contradict it by the defendants appears from the record, except such effort as was made to do so by the cross-examination of plaintiff’s witnesses.

The testimony of the plaintiff shows that the transaction involving the making of the agreement occurred under the circumstances, substantially, as alleged in the complaint; that the deceased, who had for many years been living the life of a bachelor on his Lassen county ranch, having and enjoying none of the ordinary comforts of a home, had visited the plaintiff at her residence near Marysville in October, 1900, and then and there importuned her to dispose of her possessions,

The witness Ellery, who was once the foreman on the plaintiff’s farm near Marysville, corroborated the plaintiff with regard to the character of said farm and its capabilities as a producer and the ability of plaintiff to thereby make a com

J. G. Conklin testified to conversations had with the deceased after the plaintiff came to his ranch; that deceased had told him that the plaintiff “had put her money in with his and he was going to live like a white man, and if he died first it would all be hers, and if she died first it would be his.” He further said that Mrs. Barry had attended to all the housekeeping for Garey after her arrival at his farm; that Garey “drank a great deal of liquor and was in poor health.”

Mrs. Alice Dibble stated that she knew Garey for many years prior to his death, and also knew the plaintiff; that she visited Garey’s house many times before plaintiff went there; that Garey "did not live very nice. He did his own cooking and he didn’t wash at all, I think. He had no women there to do anything and they got along the best they could by ‘batching’; sometimes they had good food and sometimes they didn’t, and sometimes the men would cook and sometimes Mr. Garey would cook. After Mrs. Barry came up she kept his bed clean and his dishes clean, did the cooking and got on pretty well. She was a pretty good cook. I was there in August, the year he died. She took care of him. She treated him kindly. She kept things clean and was good to him. She was patient with him. She gave him his medicine if any one gave it to him. . . . She did lots of things, everything she could do. She made Ms bed, ironed, bathed his feet and person, combed his hair, gave him a glass of milk if he wanted it and did anything she could for a dying man. He was dying at that time. I know she did his washing and mending. I had a conversation with George Garey regarding his business, in August last year. He told me he had Aunt Lucy well pro- x vided for. He said he had willed her everything. ’ ’

Mrs. Lou Templeton corroborated Mrs. Dibble relative to the conditions existing on Garey’s farm before the arrival there of plaintiff, and also as to the comforts by which deceased was surrounded through the ministrations of plaintiff after she took charge of the domestic affairs of the deceased.

The witness George Templeton, to some of whose testimony we have before referred, stated that plaintiff had general supervision of the housework during all the years she lived with Garey; that for five years prior to his death Garey ■“complained all the time,” and that for three of said five years, “he was very bad,” referring to his physical condition. “He had,” continued this witness, “pains in his back and we had to rub him with pain balm. His habits with reference to sobriety were not very good. He was always cross when he was on one of his drunks. He was hard to get along with. Mrs. Barry always took care of him. . . . He told me Mrs. Barry gave him $500, that he got $1,000 of Mrs. Barry at one time and at another time he said he got $500. I remember one time that George gave a note to the bank of Alturas. I signed it and Mrs. Barry also signed it with George. At that time he said to Lucy, ‘I guess you’d better sign this too, and in case anything should happen to me the estate would have to pay it.’ ”

The foregoing embraces, we. think, a fair synopsis of all the testimony brought out through the examination in chief of all the witnesses whose evidence has any bearing on the merits of the case. As we have declared, no effort was made to contradict the facts elicited from plaintiff’s witnesses, except through the cross-examination of said witnesses. We think the evidence presented by the record before us is un

That the agreement is one which, having been proved, should be enforced, there can be no doubt, it seems to us.

The evidence shows that the nearest relation by consanguinity to the deceased was the plaintiff. He had for many years lived in a state of celibacy on a cattle ranch situated in an isolated section of the mountainous regions of the state—a life unaccompanied by the tender attentions which constitute home comforts in their fullest sense. His sole companions were “buekaroos” (vaqueros), or men presumably without culture or refinement, engaged in the business of herding and “rodeoing” cattle.

As he grew older, naturally life to him under such circumstances became irksome and wearisome, and with his advancing years he, naturally, the more and more yearned for the companionship and the tender care of the one who, of all living persons, could the more completely and satisfactorily fill the long-existent hiatus in an unhappy and then rapidly waning life. He earnestly and, it may be, pleadingly besought his only sister to dispose of her own home—a home where she had spent many of the years of her life in comfortable circumstances, and valued by her not more perhaps because of its intrinsic worth than because to her it was hallowed by pleasant memories and fond associations—and come to him, situated as he was, that he might be given the care and attention which he could, under the circumstances, only derive through the love and affection of a sister. She not alone complied with his request to live with and take care of him, but turned over to him all her means to be used in his business. The evidence shows, that while he was a man of ample means, he nevertheless practically lived, prior to the arrival of his sister at his home, in squalor and misery. His habits for sobriety were not good, according to the testimony. He slept, as one of the witnesses declared, in a “dog’s nest,” by which it is to be understood that the bed upon which he slept was no better, for comfort and cleanliness, than that ordinarily occupied by that animal. She changed all this.

Is there any possible money compensation equal to the service thus rendered and the sacrifices thus made by this sister? Could the plaintiff, under the circumstances disclosed by the record, be placed in statu quo by any known legal remedy? Why should not equity enforce such a contract as is shown here? The evidence shows an adequate consideration; that the contract is just and reasonable as to the parties against whom it is sought to be enforced; there is no showing, nor an attempt at showing, that the plaintiff practiced fraud or undue influence in securing the contract; that it is certain and definite, not within the statute of frauds, and its enforcement will not involve the invasion of the legal or equitable rights of an innocent third party. (Civ. Code, sec. 3391; Stewart v. Smith, 6 Cal. App. 152 , [ 91 Pac. 667 ].)

Professor Pomeroy, in his work on Specific Performance, page 268, states the principle upon which such agreements as the one here are enforced, in the following language: “Courts of equity will, under special circumstances, enforce a contract to make a will, or to make a certain testamentary disposition, and this may be done, even when the agreement was parol, where in reliance upon the contract the promisee has changed his condition and relations so that a refusal to complete the agreement would be a fraud upon him. (Italics ours.) The relief is granted, not by ordering a will to be made, but by regarding the property in the hands of the heirs, devisees, assignees, or representatives of the deceased promisor, as impressed with a trust in favor of the plaintiff, and by compelling defendant, who must of course belong to some one of these classes of persons, to make such a disposition of the property as will carry out the intent of the agreement.”

The principle thus stated has been applied in many eases in California and other jurisdictions.

One of the leading California cases upon the subject is McCabe v. Healy, 138 Cal. 81 , [ 70 Pac. 1008 ], Healy, who was for many years engaged in the stock-raising business on an

“It is the settled doctrine of this court,” says Chief Justice Beatty, in Bell v. Wyman, 147 Cal. 515 , [ 82 Pac. 41 ], ■“that a man may bind himself by a contract, written or oral,

In the late ease of Stewart v. Smith, 6 Cal. App. 152 , [ 91 Pac. 667 ], this court, in an opinion by Mr. Justice Burnett, elaborately discusses this principle. In that opinion will be found, in addition to an interesting discussion of the proposition, a long line of authorities cited, in which the principle is exhaustively considered.

But there is no need of pursuing the subject, for it is a firmly settled proposition—so elementary that it requires no discussion—that a man may dispose of his own property at his pleasure and in any manner which may best suit his own judgment, and, as is said in the leading case of Johnson v. Hubbell, 10 N. J. Eq. 332 , [ 66 Am. Dec. 776 ] : “No good reason can be assigned why he may not make a legal agreement to dispose of his property to a particular individual, or for a particular purpose as well by will as by a conveyance to be made at some specific future period, or upon the happening of some future event. It may be unwise for a man in this way to embarrass himself as to the final disposition of his property, but he is the disposer by law of his own fortune, and the sole and best judge as to the time and manner of disposing of it. A court of equity will decree the specific performance of such an agreement upon the recognized principles by which it is governed in the exercise of this branch of its jurisdiction.”

There is not to be found, in this case, the element present in the case of Owen v. McNally, 113 Cal. 444 , [ 45 Pac. 710 ], which furnished the very strongest reason for denying the specific performance of an agreement similar in terms to the one here. The rights of innocent third parties have not intervened here to justify the refusal by a court of equity, upon that ground, to award the relief asked for. After Mc-Nally had made the agreement with the plaintiff, he married, and the court, in an opinion by Mr. Justice Henshaw, says that a contract such as this, if so construed as to be in restraint of marriage, would be void, and that, therefore, “the only permissible conclusion is that the parties contracted in contemplation of that event. Upon its happening, the rights of innocent third parties intervened and a decree

Counsel, for appellants have cited'many authorities which they claim sustain their several contentions, but we think an examination of them will show, upon the facts, a marked distinction between them and the case here.

It is earnestly and correctly argued that a contract such as this, whose existence and terms must depend for their establishment upon the uncertainty of the memory of witnesses, should be, when sought to be enforced by a court of equity, “scrutinized with particular care,” and that “only upon a satisfactory showing that it is definite and certain and just, will it be enforced.” (Owens v. McNally, 113 Cal. 444 , [ 45 Pac. 710 ].) That a court of equity should thus be particular and cautious in the enforcement of such agreements, is a proposition which cannot be gainsaid. And we assume, as we are bound to do, that the court to which the evidence was addressed and which must determine the question of the truth or falsity of all the testimony and settle and reconcile to its own satisfaction any discrepancies in such testimony, if any appear, or whether the memory of any particular witness, or that of all of them, may or may not be depended upon, has exercised the particular care required in such cases, and has concluded that a satisfactory showing was made that the agreement here is definite and certain and just. To us, as a reviewing court, the agreement, from the evidence presented, appears to be so, and, as we have endeavored to make clear in another part of this opinion, we would not be warranted in declaring that it is not definite and certain and just, unless the record evidence is such as to support us in so declaring as a question of law. This, we say, we are not justified in doing in this case.

It is hardly necessary to refer to authorities upon this point. They are numerous in this as well as in every other state in the Union. But the language used by our supreme court in discussing this question in Brison v. Brison, 90 Cal. 324 , [ 27 Pac. 189 ], is so pertinent to the case at bar that we quote: “It may be conceded, as is claimed by the appellant, that the evidence of a verbal agreement between husband and wife, that will create a constructive trust, should be clear, satisfactory and conclusive; but it must also be conceded that

There is, as before observed, no contradictory evidence in the case at bar upon the vital points involved. The discrepancies, or, rather, apparent inconsistencies, shown by the cross-examination of plaintiff and of some of her witnesses constitute alone the foundation for the claim that the evidence is contradictory and that the pleaded agreement was not proved.

We can see no reason for disturbing the findings and thus the decree of the court below, and discover no prejudicial errors in the court’s rulings.

The order is, therefore, affirmed.

Chipman, P. J., and Burnett, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on June 24, 1908.