White v. Poole , 74 N.H. 71 ( 1906 )

The plaintiffs claim that the fact Mrs. Poole lived in the house for three years without enforcing her agreement with White estops her to set it up now that he is dead. This claim has no merit, for the court has found that the reason a conveyance was not made in his lifetime was because both White and Mrs. Poole thought a farm would be better for her; and that as soon they found they could not trade the house for one, he arranged to convey the house to her, but died before he could do it.

The test to determine whether a parol contract is definite enough to sustain a decree for specific performance is the same as it would be if the contract were in writing. 4 Pom. Eq. Jur. (3d ed.), s. 1409. A written contract is sufficiently definite whenever it is reasonably certain from the contract itself and the acts of the parties in performance of it what land was intended. Troup v. Troup, 87 Pa. St. 149; Work v. Welsh,160 Ill. 468; Ottumwa etc. Ry. v. McWilliams, 71 Ia. 164; Overstreet v. Rice, 4 Bush 1; Bigelow v. Armes, 108 U.S. 10. When the agreement in this case is considered in connection with what the parties did to carry it into effect, there is no doubt as to the land to which it relates; consequently the description is sufficiently definite to sustain the bill in equity.

If the plaintiffs' refusal to convey the property to Mrs. Poole will operate as a fraud on her, her action is not barred by section chapter 225, Public Statutes. White v. Poole, 73 N.H. 403; Weeks v. Lund, 69 N.H. 78,81; Stillings v. Stillings, 67 N.H. 584; Brown v. Drew, 67 N.H. 569; Peters v. Dickinson, 67 N.H. 389; Brown v. Prescott, 63 N.H. 61; Seavey v. Drake,62 N.H. 393; Abbott v. Baldwin, 61 N.H. 583, 585; Johnson v. Bell,58 N.H. 395; Kidder v. Burr, 35 N.H. 235, 255; Burnham v. Porter,24 N.H. 570, 580; Ayer v. Hawkes, 11 N.H. 148; Tilton v. Tilton,9 N.H. 385; Newton v. Swazey, 8 N.H. 9; Br. St. Fr., s. 463; 2 Sto. Eq. Jur. s. 761. She cannot maintain an action at law on White's agreement (Smith v. Phillips, 69 N.H. 470), nor can she maintain one on an implied promise, unless she can show that he received a benefit from what she did in performing the contract, which can be measured in money. Cocheco Aqueduct Ass'n v. Railroad, 59 N.H. 312. She changed her plans foe life at White's request; and although the benefit he received because of it may have been worth more to him than the house and lot, still it has no money valve. Consequently, unless she can maintain her bill the plaintiffs can retain both the property and what White received in exchange for it; and that is such a fraud on her as will take the case out of the operation of the statute. Weeks v. Lund, 69 N.H. 78, 83; Svanburg v. Fossen,75 Minn. 350, ___ 74 Am. St. Rep. 490.

A husband's interest in his wife's property does not disqualify him from being a witness in her favor, even when the other party is an administrator who does not elect to testify. Smith v. Wells, 70 N.H. 49; Noyes v. Marston, 70 N.H. 7; Chase v. Pitman, 69 N.H. 423. The effect of Poole's disclaimer is immaterial. Although he cannot be a witness for himself, he may be one for his wife, even if he is a party to the action. Weston v. Elliott, 72 N.H. 433.

It cannot be said as a matter of law from the reported facts that there was any legal error in the admission of Storrs' testimony. If White sent Poole to Storrs to arrange for a transfer of the property through him, what Storrs testified to was not hearsay.

The plaintiffs offered to show by Mrs. White what White said concerning the house when Mrs. Poole was not present. Such evidence was inadmissible, for it consists of declarations in White's favor; and notwithstanding they were made while the house was in process of construction, they were not made on the land, nor were they in any way connected with the erection of the house or the purchase of the lot.

Exceptions overruled.

All concurred.