Daily ex rel. Daily v. Minnick

117 Iowa 563

• Court: Supreme Court of Iowa
• Decided: October 15, 1902
• Status: Published

Opinions

Deemer, J. —

1 Plaintiff’s claim of title to the land is based upon an alleged agreement between his parents and John Cochrane, during his lifetime, whereby he, the said Cochrane, orally promised that, if they would name the plaintiff (then a small infant) after him (Cochrane), he would give the child 40 acres of land. No particular 40 acres was named, nor did Cochrane own the land now claimed by the plaintiff at the time the promise was made; but it is contended that he subsequently purchased, the subject-matter of the litigation for the plaintiff, taking title thereto, however, in his own name, and that ever thereafter he, by acts and declarations, recognized the tract as the property of plaintiff, and gave the possession thereof to the father' to hold for him (plaintiff). Bearing on this last proposition, it appears from the evidence that James C. Daily, the father of plaintiff, had lived with Oochrane, as a member of his family, from childhood until his marriage, and- that fo:£ some time thereafter he and his wife continued to reside with Cochrane, who in the meantime had become a widower. He was treated by Oochrane as a son, and after his marriage had largely the control of Cochrane’s business affairs; acting with him in carrying on the farm on which they lived, in making contracts for him, and otherwise acting as his agent and assistant. James 0. Daily suggested to Cochrane the purchase of the 40 acres in question as a suitable tract to be used in performance of the original agreement to give plaintiff 40 acres of land for his name, but the purchase was made by Oochrane in his own way and with his own money, and the title was taken in his name. Subsequently he discussed with James O. Daily the management of this 40-acre tract, permitted him to cut timber therefrom and to raise crops thereon, and from time to time declared to others that he intended the tract for the plaintiff; saying that he would deed it to him when the latter was old enough, but would not .give it to plaintiff’s father, for fear he would squander it. Daily not only cut timber and raised crops upon the land, but he also opened a coal bank thereon, cleared it, and dug a well thereon. Cochrane built a house upon the land with Daily’s consent, which was occupied for a time, at least, by Cochrane’s brother-in-law. The declarations made by Oochrane generally related, it is true, to an intent to give the land to plaintiff in the future, but it is clear to our minds that they amounted to a recognition of the contract, and a designation of the land intended to be conveyed in fulfillment thereof. It is suggested that all of these 'matters may have had reference to some other arrangement between Cochrane and plaintiff’s father, but this is purely speculative, for no other arrangements dr agreements are shown.

2 / The promise to convey the land was oral, and is clearly within the statute of frauds, unless it be shown that there has been part performance, or payment of the purchase price, or a part thereof, as provided in sections 4625 and 4626 of the Code. That the privilege of naming a child is a valid and legal consideration for a promise is well established by all the authorities. See Eaton v. Libbey, 165 Mass. 218 (42 N. E. Rep. 1127, 52 Am. St. Rep. 511); Wolford v. Powers, 85 Ind. 297 (44 Am. Rep. 16); Parks v. Francis, 50 Vt. 626 (28 Am. Rep. 517); Nightengale v. Withington, 15 Mass. 272, (8 Am. Dec. 101). In making such contracts, parents act as the natural guardians of the child, and are presumed to act .for its interests. The child was named according to the agreement, and plaintiff has continued to bear the name down to the present, and by the bringing of this suit has ratified the contract made by his parents. Moreover, there was such privity between plaintiff and the promisee that he (the plaintiff) may enforce the contract, although not made directly by him. Dutton v. Poole, 2 Lev. 210; Todd v. Weber, 95 N. Y. 198 (47 Am. Rep. 20); Vrooman v. Turner, 69 N. Y. 280 (25 Am. Rep. 195).

3 But it is said that at the time the contract was made it was so uncertain and indefinite that it cannot be enforced, that no particular tract was designated at the time the contract was entered into, and that therefore it is void. The mere fact that Cochrane did not then own the land which he agreed to convey to plaintiff is not controlling. One may agree to procure land for another, or to sell land which he does not own; and the question is not whether or not the contract was uncertain when executed, but, may a court of equity put its finger on the subject-matter of the contract when it is called upon to act? Thompson v. Myrick, 20 Minn. 205 (Gil. 184); Dresel v. Jordan, 104 Mass. 407; Allerton v. Johnson, 3 Sandf. Ch. 72; East v. Ice Co., 66 Hun, 636 (21 N. Y. Supp. 887); Collins v. Vandever, 1 Iowa, 573; Ottumwa, etc. Railway Co. v. McWilliams, 71 Iowa, 164. It goes without saying that if the contract when executed, be so uncertain as to subject-matter, that the court cannot identify it in the light of admissible extrinsic evidence and it so remains at the time action is brought it cannot be enforced, or as some of the authorities put it, it is void. But ambiguity or uncertainty may be removed by the acts, conduct, declarations, or agreements of the parties. Wallace v. Ryan, 93 Iowa, 115. In other words, an uncertain agree-! merit may be so supplemented by subsequent acts, agree-»' ments, or declarations of the parties as to make it certain; and enforceable. Alabama G. S. R. Co. v. North & S. A. R. Co., 84 Ala. 570 (3 South. Rep. 286, 5 Am. St. Rep. 401); Stone v. Clark, 1 Metc. (Mass.) 378 (35 Am. Dec. 370); Lovejoy v. Lovett, 124 Mass. 270. Cochrane’s declaration in this case as to the land he intended to convey to the plaintiff in fulfillment of his promise was both a construction and an execution of his contract, and cleared' the agreement of all uncertainty theretofore existing. It is fundamental that the acts of practical construction placed upon a contract by the parties thereto are binding, and may be resorted to to relieve it from doubt and uncertainty. Kelley v. Andrews, 102 Iowa, 119. This is simply an extension of the maxim, “Id certum est quod certum,” etc. The case is not different from that of a- lease to one for so many years as he shall name. In such a case, although the term is at present uncertain, yet when the lessee names the term it is then reduced to a certainty. Broom, Legal Maxims, p., *599. So if A should give B money with which to purchase unidentified land, and B should make a purchase, and thereafter say, “This is the land I purchased for you,” equity would compel him to make conveyance thereof to A.

4 These illustrations simply confirm the principle which should be applied to the case now before us. But another aspect of the case is even more conclusive .than the one we are now considering. Plaintiff’s parents at the request of Cochrane named him (plaintiff) after Cochrane. Thereafter, and in consideration therefor, Cochrane agreed to give plaintiff a certain definite 40 acres of land. This is the effect- of the transaction between these parties if we treat the original contract as void for uncertainty. Defendant received the benefit of the name, and the parents parted with the right to give the child such name as they might choose. This as has been seen, is a valuable consideration. At the time Cochrane agreed to give the child 40 acres of land, but the contract was invalid because of uncertainty of subject-matter. Thereafter Cochrane agreed to give the child a certain and definite 40 acres, pursuant to his original promise, and because of the consideration passing at that time. Is such a contract valid? The authorities furnish no uncertain answer to this proposition.' It is quite generally held that a mere moral obligation is not sufficient consideration to support a subsequent promise, but it is as generally held that a past legal consideration, especially where the past consideration was based upon a previous request, or a new promise when the original is in violation of the statute of frauds, or otherwise illegal, when the illegality is not based upon public policy or positive statute, is sufficient. Indeed, there seems to be no dissent from this doctrine. Boothe v. Fitzpatrick, 36 Vt. 681; Jilson v. Gilbert, 26 Wis. 637 (7 Am. Rep. 100); Silverthorn v. Wylie, 96 Wis. 69 (71 N. W. Rep. 107); Pool v. Horner, —Md. — (20 Atl. Rep. 1036), and authorities collected in an excellent note found in 53 L. R. A. 353.

5 6 7 This view of the case seems to settle the validity of the contract, unless it be for the statute of frauds, which requires contracts relating to an interest in lands to be in writing. That the contract is unenforceable under this statute is certain, unless it be found that the purchase money, or some part thereof, has been paid, or that possession of the property was taken by the vendee, with the consent of the vendor, under the exceptions to that statute found in • section 4626 of the Code. These exceptions did not prevail at common law; hence authorities from other states do not give us much light on the question at issue, and are likely to be misleading. At common law, payment of the consideration was not regarded 'as part performance, so as to take the case out of the statute. Brown, Statutes of Frauds, section 463; Puterbaugh v. Puterbaugh, 131 Ind. 288 (30 N. E. Rep. 519, 15 L. R. A. 341); Townsend v. Huston, 1 Har. 532 (Del.) 27 Am. Dec. 745), and cases cited. The reason for this was that nothing was regarded which did not put the party performing in such a position that a fraud would be allowed to be practiced upon him if the contract was not enforced. The money or the purchase price could be recovered back, and the parties thus restored to their original position. This rule has not received universal assent in this country. Rhodes v. Rhodes, 3 Sandf. Ch. 279. It fully explains the holding, however, in Maddison v. Alderson, 8 App. Cas. 467; Ellis v. Carey, 74 Wis. 176, (42 N. W. Rep. 252, 4 L. R. A. 55, 17 Am. St. Rep. 125); and other like cases. In this state and in Delaware, however, the statute, in express terms, makes an exception where the purchase money, or any part thereof, has been paid. It then becomes important to determine what is meant by “purchase money.” That has been settled by numerous previous decisions of this court. Thus, in Devin v. Himer, 29 Iowa, 297, it is held that such term means the consideration received, in whatever form it may exist. See, also, Mitchell v. Colby, 95 Iowa, 202. In many cases the performance of services has been held to be the payment of the purchase price. Bonnon v. Urton, 3 G. Greene, 228; Stem v. Nysonger, 69 Iowa, 512; Franklin v. Tuckerman, 68 Iowa, 572, and cases cited. The cancellation of a pre-existing indebtedness has also been held to be part payment. Peake v. Conlan, 43 Iowa, 297. At common law neither marriage nor the performance of services was sufficient to take the case out of the statute. Wallace v. Long, 105 Ind. Sup. 5 2 (5 N. E. Rep. 666, 55 Am. Rep. 222); Peek v. Peek, 77 Cal. 106 (19 Pac. Rep. 227, 1 L. R. A. 185, 11 Am. St. Rep. 244); Ducie v. Ford, 8 Mont. 233 (19 Pac. Rep. 414); Maddison v. Alderson, supra. When it is conceded that the contract between plaintiff’s father and Cochrane is supported by a sufficient consideration, whether past or present, it follows that Cochrane has received that consideration, and the agreement, by the express language of the statute, is enforceable. The consideration has been paid. But it is said that the consideration had no reference to this particular tract of land, because Cochrane did not own it when he made the promise. We have seen that whatever of ambiguity or uncertainty there may have been in the contract when first made was rectified by the parties, who thereafter fixed and identified the tract intended to be conveyed. That this was more than two years after the child was named is unimportant, for, under our own cases, uncertainty in the original contract may be cured at any time before attempt is made to enforce it. See cases heretofore cited, and particularly Collins v. Vandever. This latter case also answers the suggestion that there was no mutuality in the contract. It is therefore entirely immaterial whether we say that what the parties did after the naming of the child made that certain which was theretofore uncertain, or that it amounted to a new contract, based upon a past legal consideration. If the former, the designation of the land related back to the making of the original agreement, and the land is thus identified; and, if the latter, the consideration, being past, was treated by Oochrane as a present and continuing one, and it is so connected with the land in question that the objects and purposes of the statute are as fully conserved' as if the consideration had been so much money received by Oochrane, or was past services rendered at his request, and for which he agreed to convey the land. When part payment of the consideration alone is relied upon as taking a case out of the statute, the identification of the land must always rest in parol, and it is no objection to the enforcement of the contract that there is nothing in the act performed which serves to identify the land. Under common-law rules, as modified by equitable exceptions, which-were introduced for the purpose of preventing the statute from becoming an instrument of fraud, appellants’ contention would undoubtedly be sound, and the authorities relied upon by them in point. But under our statutory exceptions the rule is so much broader that the cases on which they rely are not controlling. Counsel practically concede in argument that the contract, if valid, is not within the statute, and we may well accept their concession, in view of the provisions of our statute. The parties, by agreement, brought consideration and subject-matter together, and, if the consideration was paid, there was no necessity for any writing. The uncertainty of the subject-matter does not in any manner affect the consideration, nor cancel the legal obligation Oochrane was under in virtue of the child’s having been named for him, at his request. Should we treat the contract as void for uncertainty, there was nevertheless a legal obligation on the part of Cochrane, which was a sufficient consideration for his subsequent promise; and, when he agreed to give a certain tract of land in satisfaction of that obligation, he as surely received the consideration as if plaintiff’s father had canceled a debt which he held against him. This latter, as has been seen, is sufficient to take a case out of the statute. In Palmer v. Albee, 50 Iowa, 429, there was no attempt to show that the parties had subsequently agreed upon the land, which was described with such uncertainty that it could not be identified. The case was decided upon a demurrer to the petition, and it is clear that the description was so uncertain that a court of equity could not enforce it. Moreover, there was no subsequent promise, as in this case. If it be said that the contract, as originally made, was void for uncertainty, this did not relieve Cochrane of an obligation on his part. Keener, Quasi Contract, p. 326 et seq. He had received the benefits of the contract, and, when he thereafter agreed to give the land in satisfaction of this obligation, he made a valid and binding contract, based upon an adequate consideration received by him. The law will not attempt to measure the benefits received by him in the perpetuation of his name. He said it was worth the 40 acres of land, and courts should accept him at his word. In many states, equity has specifically enforced parol contracts made in consideration of services performed, which were not in writing, in the absence of a statute such as our own. Carney v. Carney, 95 Mo. 353 (8 S. W. Rep. 729); Warren v. Warren, 105 Ill. 568; Lester v. Lester, 28 Grat. 737; Hinkle v. Hinkle, 55 Ark. 583 (18 S. W. Rep. 1049). But other courts have refused to enforce them. Our statute was undoubtedly passed to settle this proposition; and there is no doubt, under our décisions, that performance of services, like the payment of money, is alone sufficient, in itself, to take a case out of the statute of frauds.

These views seem to dispose of the case, but the writer and perhaps some other members of the court are satisfied not only that the case is taken out of the statute by reason of the payment of the purchase price, but for the further reason that plaintiff’s father took possession of the land ■under the contract with the express consent of Oochrane, held it, made improvements thereon, and otherwise treated it as belonging to his son, for nearly the whole time after it was purchased, down to the time of the commencement of this action. This with payment of the purchase price, would, under all the authorities, take the case out of the statute. There is no other ground on which to account for the conduct of the parties, unless we indulge in surmises which to my mind are not justified by the evidence. It is cold comfort to say to the plaintiff in this case that, while 'Cochrane’s obligation to him has not been extinguished, he cannot have the land which was purchased for him, but must sue some one for damages, or, rather, for benefits conferred, in taking Cochrane’s name. The measure of damages in such a case would be rather difficult to estimate. This is another reason for enforcing the contract. Of course, if it is clearly within the statute, or is so uncertain that it should not be enforced,, these' equitable considerations must stand aside. There is, however, no tenable objection to the enforcement of the contract.

The trial court saw and heard the witnesses, and was in a better position than we to weigh their evidence, and it is some consolation to know that its conclusion as to the facts coincides with the finding herein made.

The decree is right, and it is affirmed.