Ripsom v. Hart — 72 N.Y.S. 791

Majority

p. 791

(64 App. Div. 593.)

RIPSOM v. HART et al.

(Supreme Court, Appellate Division, Fourth Department.

October 18, 1901.)

Headnote

1. Specific Performance—Uncertain Contract.

An agreement by a grantee as part of the consideration for a conveyance to give the grantors his entire estate at his death is too uncertain to be enforced.

3. Same—Evidence.

Where no writing was drawn of an agreement to give grantors all of the grantee’s property at his death, and the only evidence establishing it is that of the wife of one of the alleged parties, who is interested for her children, who are the real parties in interest, and it appears that at the time of the conveyance cash payments were made, the evidence is insufficient to establish the contract.

Appeal from special term, Monroe county.

Action by Richard Ripsom against John Hart and John Helling individually and as executors of John Och, deceased, and others. From a judgment in favor of defendants dismissing plaintiff’s complaint, plaintiff appeals.

Affirmed.

This is an action brought to compel specific performance of a contract by which decedent agreed to. give his entire estate to plaintiff and Augustus Ripsom at his death. Plaintiff alleged that he and Augustus Ripsom and their wives executed a quitclaim deed of their respective interests in certain land of the decedent on a stated consideration, and as part thereof decedent agreed to give his entire estate to the grantors. The heirs of Augustus Ripsom brought a similar action.

The following is the opinion of DUNWEEE, J., delivered at special term:

The foregoing actions were tried together, the same evidence applying to each. From a careful reading of the decisions of the courts of this state I am convinced that the plaintiffs do not present such a case as entitles them to judgment. The contract sought to be established depends wholly upon the testimony of Mrs. Irish, the wife of one of the alleged parties to the contract, since deceased, who is interested for her children, who are the real parties in interest to the extent of one-half of any recovery in the event of plaintiff’s success. There are a number of reasons why she may be mistaken about a contract having been made. It may be true that what she supposes became a contract was considered and talked over; that the Ripsom brothers acceded to the sale of their interests upon the supposition that Och, at his death, would be more apt to leave his property to them than any one else, they being his only relatives in this country at that time. Och himself may have said so, and yet may not have entered into a contract to that effect There are obvious facts and circumstances tending to contradict the making of a contract. No writing was drawn, although it was necessary to resort to writings in conveying the property. So long as a part of the transaction required a writing, why was plaintiff’s important interest in the transaction left to memory only? Each of the plaintiffs, at the time of the conveyance, received a cash consideration of $400. This is, in some degree, inconsistent with the idea of other consideration. “Alleged oral dispositions of estates, to take effect in the future or after death, should not be found or supported unless established by abundant evidence of the most satisfactory and convincing character.” Gaylord v. Gaylord, 7 N. Y. St. Rep. 703 ; Edson v. Parsons, 155 N. Y. 555 , 50 N. E. 205 ; Gall v. Gall, 64 Hun, 600 , 19 N. Y. Supp. 332 . The evidence in this case, in my judgment, falls below the requirements of these authorities. The cases in this state where paroi agree

p. 792

ments have been enforced by specific performance are where the party invoking the aid of the court has performed labor or made improvements upon property, or rendered consideration following the bargain or in pursuance of it. Here the only consideration moving from the plaintiffs was a present one,—the parting with their title. They cannot support their contention, as has been done in most reported cases, by acts done subsequently, that could only be explained upon the theory that what was done was in pursuance of a contract, thereby supporting the alleged existence of a contract. This contract is devoid of such support. If, however, the evidence was sufficient to establish the contract in controversy in this case, it has not been the practice of courts of equity in this state to enforce such a contract by reason of its uncertainty. It permitted deceased to possess, control, and absolutely dispose of his property so as to devest himself of all title thereto during his life if he saw fit, leaving it uncertain whether he would have any property at his death. In Shakespeare v. Markham, 10 Hun, 324 , it was said: “It was not specifically agreed in what manner the property of the testator was to be conveyed or secured to the other parties. It was to be used and controlled by him during his life. There was no restraint by the supposed contract upon the testator’s power to dispose of the same, or any part thereof, during his life; and the amount which he should leave at his death was therefore wholly uncertain. The contract, therefore, by reason of its uncertainty, was one which a court of equity would not be under the necessity of compelling performance of.” I must hold that the evidence is not sufficient to establish the contract, and that such a contract cannot be enforced in this court by reason of its uncertainty, and that the complaint must be dismissed in each case, but with costs to defendants in one case only.

Argued before ADAMS, P. J., and McLENNAN, SPRING, WILLIAMS, and HISCOCIC, JJ.

David N. Salisbury and W. W. Armstrong, for appellant.

Richard E. White, for respondents.

Judgment affirmed, with costs, on opinion of DUNWELL, J., delivered at special term.

Cases cited

Edson v. Parsons 155 N. Y. 555 N.Y. 1898-04-19 p. 791