Ferris v. Blumhardt , 48 Wash. 2d 395 ( 1956 )

Ott, J.

In their first cause of action, Thomas J. Ferris and Evelyn B. Ferris, husband and wife, sought (1) specific performance against the estate of Anna C. Witzig of a contract to make a will in their favor, and (2) restoration to the estate of a gift of five thousand dollars made by Mrs. Witzig in her lifetime to Dan and Bernice M. Blumhardt, husband and wife. In the alternative, by a second cause of action, the Ferrises sought a judgment against the estate of Anna C. Witzig of fifteen thousand dollars for services rendered.

The trial court dismissed the first cause of action, and granted judgment against the estate for two thousand dollars upon the theory of quantum meruit, that amount being the court’s determination of the value of the services rendered in excess of the value of the property plaintiffs had received from decedents during their lifetime. The Fer-rises appeal.

Dan Blumhardt, as executor of the estate of Anna C. Witzig, deceased, and the residuary legatees and devisees cross-appeal, contending that the previous conveyance to the Ferrises of the Witzig home and automobile adequately compensated them for services rendered, and that the trial court erred in granting judgment against the estate.

In 1946, the Ferrises resided in Milwaukee, Wisconsin. Walter J. and Anna C. Witzig resided in Seattle. Mrs. Ferris was a niece of Mr. Witzig. The families were comparative strangers,' having met previously on only two or three occasions. In September, 1946, the Ferrises received a letter from Mrs. Witzig in which she commented upon her physical condition, and upon her husband’s difficulties due to a growth in his throat, and then stated:

“It’s a good thing we have ho financial'worries and have a very comfortable home. I just said to -Walt, now if you folks were here everything would be complete. I’m sorry you folks didn’t come here when you left Minneapolis. I am sure there are all sorts of opportunities here for work, and if either you or Tom would care to come out here now and look things over I will send you the fare. . '. . I wish you would think this over about coming but here to live for whoever is with us when we pass on get's what we have.” (Italics ours.)

In response to that letter, both of the Ferrises came to Seattle to “look things over,” and then returned to Milwaukee.

October 30, 1946, Mrs. Witzig wrote:

“Walt is getting worse right along from the treatments and at times it is very difficult for him to breathe. The Dr. said he may have to put a tube in his throat so he will be able to breathe more freely. It worries me to be here alone with him' that is why I do hope you will come just as soon as you can.”

Mr. and Mrs. Ferris and her daughter had moved to Seattle and into the Witzig home by December 15, 1946. Walter Witzig died July 1, 1947. June 3, 1949, Mrs. Witzig deeded her home, worth fourteen thousand five hundred dollars, to the Ferrises. On August 7, 1950, she transferred to Mr. Ferris the title to her 1939 Chevrolet automobile.

In 1944, Mrs. Witzig met Dan Blumhardt, a distant relative. Beginning in 1947, he visited her with some regularity. They became good friends. Mrs. Witzig often visited the Blumhardts at their home in Longview. Since their home was small, she insisted that they buy a larger house. August 6, 1951, she gave them five thousand dollars, with which they made the down payment on a larger home. Mrs. Witzig assisted in selecting this home, and at all times thereafter a room was reserved therein for her which she occupied approximately one third of the time.

Anna C. Witzig died April 20, 1953. By her will, executed June 12, 1952, she made several cash bequests and bequeathed specific personal belongings to persons other than the Ferrises, and left the residue of her estate to the Blumhardts. - By a codicil executed March 11, 1953, she bequeathed all of her household furniture and furnishings to Evelyn B. Ferris, and confirmed therein the prior conveyance of the home property.

In order to prove a contract to devise, evidence is required which is conclusive, definite, and beyond all legitimate controversy. Thomas v. Hensel, 38 Wn. (2d) 457, 230 P. (2d) 290 (1951), and cases cited.

In the instant case, the Witzigs communicated to the Fer-rises a written offer to devise, asking in return that the Ferrises furnish continuous companionship and care. That the appellants placed this interpretation upon the offer is indicated by paragraph No. 4 of their amended complaint which states, in part:

“ . ■. . Plaintiffs [appellants] promised to render continuous and constant companionship to the said Witzigs throughout the remainder of the natural lives of the said Witzigs, . . ■ . and Plaintiffs further promised to accept said Witzigs into Plaintiffs’ immediate family circle and to take personal care of said Witzigs during said period as Plaintiffs would care for elderly members of their own immediate family without, however, additional financial expense to Plaintiffs; ...”

There is an inescapable inference that the Ferrises accepted the offer and that a contract existed between them and the Witzigs, from the fact that the Ferrises left their friends and relatives in Milwaukee, moved their family of three to Seattle, where they knew no one except the Witzigs, and, upon their arrival, moved into and remained in the Witzig home, thus commencing performance of the acts requested in the Witzigs’ offer. See Ellis v. Wadleigh, 27 Wn. (2d) 941, 182 P. (2d) 49 (1947).

Appellants assign error to the making and entering of certain findings of fact adverse to them. These findings were based upon conflicting testimony. We have repeatedly held that the findings of a trial court, entered upon conflicting evidence, will be approved on appeal unless the evidence clearly preponderates against them. Carroll Constr. Co. v. Smith, 37 Wn. (2d) 322, 331, 223 P. (2d) 606 (1950). Our reading of the record convinces us that the evidence does not preponderate against the trial court’s findings. Therefore, they must be accepted as the established facts in the case. McKown v. Davis, 47 Wn. (2d) 10, 15, 285 P. (2d) 1048 (1955), and cases cited.

From its findings of fact, the trial court concluded with reference to the first cause of action (1) that the Ferrises had “failed to sustain their burden of proof under the First Cause of Action,” and (2) that, if there was a contract to devise, the appellants had not shown that the services contemplated had been performed. The findings support these conclusions, but do not support the court’s conclusion that no contract to devise ever existed or that the contract was too indefinite for specific performance.

We have held that, where the conclusions of law are not supported by the findings or are inconsistent therewith, the findings will control. State v. Twenty Barrels of Whiskey, 104 Wash. 382, 176 Pac. 673 (1918); Fisher v. Coy Valve Co., 138 Wash. 35, 244 Pac. 125, 247 Pac. 966 (1926). See, also, Katterhagen v. Meister, 75 Wash. 112, 134 Pac. 673 (1913).

The court’s findings support the judgment. When the findings are in accord with the judgment, the inconsistent conclusions of law will be disregarded. See State v. Twenty Barrels of Whiskey, supra.

If the judgment of the trial court is based upon an erroneous ground, it will be sustained if correct upon any ground within the pleadings and established by the proof. In re Bodvin’s Estate, 37 Wn. (2d) 872, 878, 226 P. (2d) 878 (1951); Portland Ass’n of Credit Men v. Earley, 42 Wn. (2d) 273, 277, 254 P. (2d) 758 (1953).

The respondents’ general denial in answer to the complaint put in issue the implied as well as the express averments of the complaint, and any fact which tended to destroy the appellants’ cause of action was provable. Haveman v. Beulow, 36 Wn. (2d) 185, 188, 217 P. (2d) 313, 19 A. L. R. (2d) 763 (1950), and cases cited; Sinko v. Sinko, 39 Wn. (2d) 246, 250, 234 P. (2d) 1085 (1951), and cases cited. The continued existence of the alleged contract, which was necessary to the appellants’ first cause of action, was put in issue by the general denial.

We hold that the evidence established that, at the inception of the relationship between the Whitzigs and the appellants, there was a contract to devise, but, as the trial court indicated in its conclusions, there was a failure to perf orm its conditions, and, hence, there was a breach.

In their briefs on appeal and their argument before this court, appellants made no contention that there was any change in the performance required of them or that they tendered less than the offer required, or that the Witzigs, during their lifetime, had agreed, expressly or impliedly, to accept anything less than the full performance of the acts required in their original offer, upon which the promise to devise was predicated. Hence, we are not here concerned with a waiver of any of the conditions precedent to the decedents’ obligation to perform.

The offer required that continuous companionship and care be furnished by the Ferrises for the lifetime of the Witzigs. December 3, 1951, Mrs. Ferris enrolled in a business school, and for approximately ten months she was absent from the residence one half of every week day. September 15, 1952, she accepted full-time employment. During all of this time, Mr. Ferris was employed full time. The evidence definitely established that the services required by the offer were not rendered. Companionship and care cannot he effected hy absence.

The Witzigs’ offer requested an act in return for the promise to devise, and thus contemplated a unilateral contract.

1 Restatement, Contracts, 65, § 59, states:

“Except as this rule is qualified by §§ 45, 63, 72, an acceptance must comply exactly with the requirements of the offer, omitting nothing from the promise or performance requested.” (Italics ours.)

In § 45, p. 53, of the same text, it is said that,

“If an offer for a unilateral contract is made, and part of the consideration requested in the offer is given or tendered by the offeree in response thereto, the offeror is bound by a contract, the duty of immediate performance of which is conditional on the full consideration being given or tendered within the time stated in the offer, or, if no time is stated therein, within a reasonable time.” (Italics ours.)

In ceasing to provide companionship and care, the appellants failed to render the full consideration upon which the decedents’ promise to devise was conditioned.

A contractual duty is discharged by the unexcused failure of a condition to occur within the time necessary to create a right to immediate performance of the duty. 2 Restatement, Contracts, 746, § 395.

The essential element of the agreement to devise being the furnishing of continuous companionship and care during the decedents’ remaining years, the enrollment in the business school and the admitted acceptance by Evelyn Ferris of full-time employment during those years was a material breach, and an unexcused failure of the condition, which discharged the decedent Anna Witzig from any duty to devise.

The appellants’ breach commenced December 3, 1951, and continued until the time of Mrs. Witzig’s death. They were in continuous default. One in default cannot enforce specific performance of a contract. Bayley v. Lewis, 39 Wn. (2d) 464, 472, 236 P. (2d) 350 (1951). Since there was an admitted breach, and no contention of waiver raised, the contractual duty to devise was terminated by the unexcused failure of the condition of full performance. 2 Restatement, Contracts, 746, § 395.

Although the trial court’s judgment was not granted upon the ground of abandonment, the court’s findings amply support a conclusion that the contract to devise was abandoned by the parties during the lifetime of the decedent. Abandonment of a right is the voluntary relinquishment thereof by its owner or holder, with the intention of terminating his ownership. See 1 C. J. S. 4, § 1. A contract will be treated as abandoned where the acts of one party inconsistent with its existence are acquiesced in by the other. Wiegardt v. Becken, 21 Wn. (2d) 59, 73, 149 P. (2d) 929 (1944).

That the appellants and the decedent, during her lifetime, abandoned the contract to devise is established by the following:

(1) Anna Witzig gave the appellants a deed to her house and title to her automobile on June 3, 1949, and August 7, 1950, respectively. The value of these items represented approximately fifty per cent of her entire estate. This premature grant indicates that the original agreement had been greatly modified, if not entirely abandoned, and, with the remaining acts of the parties, establishes an abandonment as of June 3, 1949.

(2) Although legal documents were prepared at the time of making the deed and transferring title to the automobile, there was no evidence that either of the appellants ever requested the decedent to make a will in accordance with the alleged agreement.

(3) Subsequent to delivery of the deed, Mrs. Witzig paid the Ferrises for their services in redecorating her room, and paid Mrs. Ferris for certain personal services rendered.

(4) During the lifetime of the decedent, the appellants made no inquiry concerning, and exercised no dominion over, any of decedent’s property except such as had been conveyed to them.

(5) August 6, 1951, decedent gave five thousand dollars to the Blumhardts. Thereafter, she lived with them approximately one third of the time.

(6) Anna C. Witzig made a will which, by its written terms, indicated that the contract had been terminated at the time the will was executed.

(7) When, after the death of Mrs. Witzig, her will was read to the Ferrises, they did not indicate that there then existed a contract to devise. Instead, by oral statements, they gave credence to the will as read.

The conduct described above, plus the fact that Mrs. Ferris absented herself from the home and ceased to furnish companionship and care, establishes that the parties recognized'the abandonment of the contract to devise. Because of the abandonment, the decedent was free to devise the remainder of her property as she saw fit, and as she subsequently did, June 12, 1952.

We hold that the established facts in this case support the conclusion that, in addition to the breach, the contract was abandoned. Having so concluded, the appellants cannot prevail upon their first cause of action, which cause included the request for restoration to the estate of the five-thousand-dollar gift to the Blumhardts:

With reference to the second cause of action, the appellants are entitled to recover, under the doctrine of quantum meruit, for the value of such services as they did render to decedent subsequent to the breach and abandonment of the contract.

From the record before us, we hold that the judgment allowed by the trial court amply compensates the appellants for the services thus performed. Losli v. Foster, 37 Wn. (2d) 220, 233, 222 P. (2d) 824 (1950).

Assignment No. 4 concerns the exclusion of certain testimony of two witnesses, and the offers of proof with reference thereto. Based upon the offer of proof, the testimony of Lorraine Lambrecht was properly excluded as hearsay. The excluded testimony of Thomas J. Ferris, as shown by the offer of proof, would not have rebutted the testimony of Dan Blumhardt, and its exclusion was therefore not prejudicial. See Sutton v. Mathews, 41 Wn. (2d) 64, 247 P. (2d) 556 (1952). We find no merit in this assignment of error.

Appellants’ remaining assignments of error are without merit for the reasons above stated.

We find no merit in respondents’ cross-appeal.

The judgment of the trial court is affirmed. Since respondents did not prevail upon their cross-appeal, neither party will recover costs.

Hamley, C. J., Mallery, Schwellenbach, and Rosellini, JJ.. concur.