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08/02/83 FRANCIS GEGG v. WILLIAM KIEFER

August 2, 1983

FRANCIS GEGG, PLAINTIFF-RESPONDENT,
v.
WILLIAM KIEFER, ADMINISTRATOR OF THE ESTATE OF JOSEPH P. KIEFER, DECEASED, DEFENDANT-APPELLANT.



From the Circuit Court of Perry County; Civil Appeal; Judge Gary R. Black, Sr.; Reversed and Remanded

Before Pudlowski, P.j., Smith, Kelly, JJ.

The opinion of the court was delivered by: Pudlowski

This is an appeal by the administrator of the estate of Joseph P. Kiefer from a court tried judgment ordering specific performance of an oral contract to sell real estate. The suit originated in a two count petition, wherein respondent requested specific performance in Count I of his petition and quantum meruit in Count II. We reverse and remand.

The facts reviewed in the light most favorable to the respondent are as follows: Joseph P. Kiefer and his wife owned a 274 acre tract in Ste. Genevieve County, Missouri. Approximately 70 acres of this tract was farm land. Respondent, Francis "Franco" Gegg, farmed the land as a tenant on a "cash-rent" basis. He had farmed the land on a share crop basis since the 1940's, but changed to the cash-rent arrangement in 1969 or 1970.

In addition to farming, respondent attended to the upkeep of the Kiefer property. He maintained the gravel road, cleaned out the creek bed, cleared brush and weeds, and improved the land's drainage system. Under his care, the farm's productivity increased considerably. Kiefer was pleased with his tenant's work and over the years on unspecified occasions told him, "Now, Franco, you take care of this land because someday it will be your own." When asked for advice about the farm, Kiefer would reply, "Well, you just go do it the way you want because you're doing real good just the way you are."

After his wife's death in January 1979, Kiefer's health deteriorated steadily. The following February, respondent and his brother, Weldon ("Tommy") Gegg, took Kiefer to the hospital. On March 6, 1979, Kiefer left the hospital. Tommy Gegg and his wife Earlene both testified that they had been present the day that Kiefer returned from the hospital, and that he had stated: "Franco, now as soon as I get on my feet . . . I want to sell you this farm; as soon as I get on my feet we'll take care of this." When asked how much he could pay for the farm, respondent replied, "Well, Joe . . . I can't give you a doctor or a lawyer's price." Kiefer asked what respondent could afford to give. He thought for a while and stated that he could afford $45,000. Kiefer responded, "Well, that sounds good enough to me." The parties discussed neither the time of the sale nor its terms any further.

In March or April of 1979, respondent visited a local banker in order to arrange a $45,000 loan. Respondent told the banker that he was going to buy the Kiefer farm. Also in April, he purchased a new four-row corn planter. He told the dealer that he was purchasing the new equipment because he "thought maybe he was going to be able to keep" the Kiefer property. Additionally, respondent claims that his wife gave Kiefer $400 as an advance to be applied against the purchase price of the farm.

After a short stay at home, Kiefer returned to the hospital. On April 6, one of his legs was amputated. Respondent and his brother regularly visited Kiefer in the hospital and on April 15, 1979, respondent asked Kiefer whether he was ready to sell his property. Kiefer replied yes, indicated that he "had turned everything over" to his nephew, William Kiefer, the appellant, and asked if his nephew had brought the deed to Gegg to which Gegg replied no. This was the final conversation concerning the sale of the land. Kiefer died intestate on May 1, 1979, having made no plans with his nephew to transfer his property to respondent.

The trial court determined that an oral contract had been made and proved. He ordered appellant to convey the land to respondent. This appeal followed.

Several points of error have been raised on appeal; (1) whether the alleged agreement was sufficient as a contract or was violative of the statute of frauds and not within any of its exceptions; (2) whether all heirs had been properly made parties to the action; (3) whether the testimony of the banker and farm equipment dealer was hearsay; (4) whether the respondent's claims were res judicata; and (5) whether respondent's wife was an interested party within the meaning of the dead man's statute, § 491.010 RSMo (1978). We resolve this appeal in disposing of the first alleged error. Therefore, we need not address the other issues raised.

Respondent urges us to believe that the totality of the evidence supported the trial court's finding of an oral contract and was sufficient to overcome the bar of the Statute of Frauds. The Statute of Frauds in Missouri provides:

No action shall be brought * * * upon any contract made for the sale of lands, * * * unless the agreement upon which the action shall be brought * * * shall be in writing and signed by the party to be charged therewith * * *.

§ 432.010 RSMo (1979). An oral contract to convey land falls within the literal ambit of the Statute of Frauds and so will not be enforced at law. Jones v. Linder, 247 S.W.2d 817 (Mo. 1952); McKenna v. McKenna, 607 S.W.2d (Mo. App. 1980). However, equity will decree specific performance where a party has so far acted on the promise that to deny him the benefit of the agreement would be unjust. This resort to equity avails sparingly, and only upon clear and convincing proof of a definite agreement. Watkins v. Watkins, 397 S.W.2d 603 (Mo. 1965). The elements of proof required by equity for the specific performance of an oral contract to convey real estate were prescribed in Walker v. Bohannon, 147 S.W. 1024, 1028 (Mo. 1912) and have been uniformly followed since:

(1) the alleged oral contract must be clear, explicit, and definite; (2) it must be proven as pleaded; (3) such contract cannot be established by conversations either too ancient on the one hand, or too loose or casual upon the other; (4) the alleged oral contract must itself be fair, and not unconscionable; (5) the proof of the contract as pleaded must be such as to leave no reasonable doubt in the mind of the chancellor that the contract as alleged was in fact made, and that the full performance, so far as lies in the hands of the parties to perform, has been had; (6) and the work constituting performance must be such as is referable solely to the contract as sought to be enforced and not such as might be reasonably referable to some other and different contract; (7) the contract must be one based upon an adequate and legal consideration, so that its performance upon the one hand, but not upon the other, would bespeak an unconscionable advantage and wrong, demanding in good conscience relief in equity; (8) ...


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