#### Rutledge et al., Appellees, *v.*Hoffman, Admr., Appellant.

(No. 926

Decided July 24, 1947.)

*Messrs. Williams, Fitton é Pierce,*for appellees.

*Messrs. Conclo & Walsh*and *Messrs. Andrews & Weiss,*for appellant.

Matthews, P. J.

This is an appeal on questions of law from a'judgment in favor of plaintiffs for breach of contract.

*86The plaintiffs alleged that the defendant’s decedent, on November 1, 1911, orally promised to pay the snm of $4,000 do the plaintiffs’ decedent, who was her' sister, in consideration of her agreement not to institute an action to contest the will of Mary Barbara Hoffman, their mother, and not to make any effort to vacate or set aside a deed, conveying a certain farm from their mother to the defendant’s decedent. The plaintiffs alleged that certain partial payments had been made commencing in 1930 and ending on October 6,1939. The judgment appealed from is for the unpaid balance with interest at 5 per cent per annum.

The defendant denied the making of the promise, and in addition alleged the bar of the statute of limitations. By objection to testimony, the defense of the statute of frauds was interposed.

Only one' witness (Robert Matson) testified to the making of the promise. He was a nephew of the decedents, and because of the pendency of an action by the administrator of his mother’s estate on a similar promise alleged to have been made to his mother it could be, and is, argued that he is an interested witness. However, the trial judge, sitting without a jury, has placed 'his stamp of approval upon his credibility, and there was no countervailing testimony offered. There was corroborating testimony.

But it is said that the testimony fails to show the terms of a contract and, perhaps, fails to show the *animus contrahendi.*We think both clearly appear. We observe here that seldom, if ever, does the evidence in proof of an oral contract present its terms in the exact words of offer and acceptance found in formal written contracts. And no such precision is required. It is sufficient if the intent is disclosed by word, deed, act, or even silence. Circumstantial evidence' is as available "to prove a contract as it is to prove a crime. *87In 12 American Jurisprudence, 518 *et seq.,*this fundamental rule is stated:

“In the absence of a statute requiring a contract to be evidenced in a certain way, it is ordinarily unnecessary to reduce the agreement to formal language, either written or oral. The expression of assent necessary to form a contract may be by word, act, or conduct which evinces the intention of the parties to contract. Assent may be manifested by letters, telegrams, or telephonic conversation. Assent is sometimes indicated by silence or inaction. Even though the promise of one of the parties to a bilateral contract is not stated expressly therein, such promise is sometimes implied from the nature or terms of the contract. Frequently, it happens that contracts on their face and by their express terms appear to be obligatory on one party only; but in such cases, if- it is manifest that it was the intention of the parties, and the consideration upon which one party assumed an express obligation, that there should be a corresponding and correlative obligation on the other party, such corresponding and correlative obligation will be implied.”

The evidence discloses that shortly after the death of the husband of Mary Barbara Hoffman in 1889, she executed the will and at the same time certain deeds conveying different parcels of real estate to different ones of her children, including the plaintiffs’ and defendant’s decedents. However, these deeds were left with the scrivener and never .delivered or recorded' during the lifetime of Mary Barbara Hoffman, and the fact of the existence of the will and deeds was not disclosed until after her death in 1911, when the deeds were recorded and the will probated. It. was then that the dispute arose which was settled by the contract which is the basis of this action.

Robert Matson testified that in 1911 he was 24 years *88old, unmarried, and living at his mother’s home, that after the death of his grandmother, Mary Barbara Hoffman, he took his mother (Mary B. Matson) and his aunt, Mary Rutledge, to the home of his aunts Annie and Louisa Hoffman, and that he was present during a conversation among them on that and several other occasions. Among,other things, he said:

£<Q. Can you remember the substance of what was said by the people attending that meeting? A. They weren’t satisfied the way the will was.

££Q. Did they say they weren’t satisfied? A. My mother and Aunt Mary.

££Q. Did they say that? A. Yes.

££Q. And they expressed dissatisfaction? A. Sure.

*“Court:*Why don’t you say your mother said she wasn’t satisfied? A. That is what she said.

££Q. Whát did Mary Rutledge say about the will, of your grandmother and deeds your grandmother made? A. They weren’t satisfied and Uncle George Hoffman wasn’t satisfied.

*“A.*George Hoffman said that and Uncle George talked to Aunt Louise and Aunt Annie and they said he was up in the air and wasn’t satisfied.

££Q. After your mother and Mary Rutledge expressed dissatisfaction with the will and deeds, what did your Aunt Anna say? A. She said she wouldn’t want to upset the will, she promised the two girls '$4,000 a piece — that is my mother and Aunt Mary Rutledge.

£ £ A. The conversation was all three of them weren’t satisfied.

*■“A.*They .kept talking on there, they said George wanted $9,500 and mother and Aunt Mary — they promised them $4,000.

££Q. You aren’t to say that — what did they say? *89What did Anna and Lonisa say concerning the $4,-. 000.00, if anything?. A. They talked matters over, they knew they weren’t satisfied.

“Q. What else did they say? A. They come to agreement, they talked it over and come to agreement. They , had more than one meeting, they had several meetings.

“Q. You stated your mother and Mary Eutledge expressed at this meeting dissatisfaction at the way in which the will disposed of the estate and the deeds and I think you stated also Anna Hoffman said in that meeting George Hoffman was also dissatisfied? A. That is right.

“Q. What else did Anna and Louisa Hoffman say in that connection at that time — you are not expected to say the exact words — you are expected to remember to testify if you can the substance of what was said? A. They had several meetings and» talked this matter over and the only thing I can say—

“Q. What did they say at this one meeting? A. They said about dividing the place so they can divide in a way they wouldn’t go to court with it.

“Q. How did they propose to do that — what did they say? A. They would go ahead — you want me to bring that out — and give George Hoffman $9,500 and Mother and Aunt Mary $4,000 a piece.”

We think it is clear from this testimony that Mary Eutledge, Mary B. Matson and George Hoffman, all children of Mary Barbara Hoffman, were dissatisfied with the disposition of her estate, as made by the yvill which had just recently been probated and the deeds which had been recorded, of the existence of which they had not known until after the death of Mary Barbara Hoffman. They sought an interview with their sisters, Annie and Louisa Hoffman, whom they thought were unduly favored by the disposition. As a result of that *90and succeeding interviews, Annie and Louisa Hoffman agreed to pay George Hoffman $9,500 and $4,000 each to Mary Rutledge and Mary B. Matson, and they, George Hoffman, Mary Rutledge and Mary B. Matson, agreed they “wouldn’t go to court with it,” which, of course, meant and means that they would leave Annie Hoffman and Louisa Hoffman undisturbed in the possession and ownership of the property conveyed to them by the will and deed of Mary Barbara Hoffman.

That testimony was corroborated by testimony of witnesses as to the payments made on account of the obligation during the years and by conversations between the parties and statements made by Annie and Louisa Hoffman to others. If the testimony is believed — and the trial judge did believe it — the promise of 1911 and its obligation remained fresh in the minds of the parties during all the intervening years. There is further corroboration in the receipt given by George Hoffman upon the payment of $9,500 to him find receipt given by Mary Rutledge upon payment of $1,500 to her, and by notations upon tax receipts showing payment of Mary Rutledge’s taxes by Annie and Louisa Hoffman.

The contract thereby created was one of mutual promises, a bilateral contract. The promise of Annie and Louisa Hoffman required them to perform the affirmative act of paying money, whereas, the promise of George Hoffman, Mary Rutledge and Mary B. Matson was negative in its nature.- They agreed to do nothing to disturb the situation created by the probate of the will and the recording of the deeds. They have performed their promise. They filed no action to contest the will or to set aside the deeds. On the other hand, Annie and Louisa Hoffman did not fully perform their promise.

*91But it is said that the testimony tends more to show a promise based on love and affection without any intention to enter into a binding contract. That does not seem to be a normal construction, and the trial judge did not so construe it.

' It is true that the disputed will and deeds had been in existence for more than 20 years when their validity was questioned, but those questioning their validity had just learned of their. existence by the probate of the will and the recording of the deeds. There is a suggested strangeness in the secrecy surrounding the existence of the deeds and will, but the record is devoid of any evidence indicating the basis upon which it was intended to contest their validity. .On the other hand, the record carries no suggestion of fraud or lack of good faith in the assertion of George Hoffman, Mary Rutledge and Mary B. Matson, or any one of them, that the validity of-the will and deeds could be successfully contested by them. It is not essential to the validity of a promise made to settle a disputed claim that it be made to appear that the claim is valid and incontestable. It is sufficient if it is asserted in good faith, and, of course, good faith will be presumed in the absence of countervailing circumstances. In 17 ■ Ohio Jurisprudence, 112, it is said: ‘ ‘ The presumption of law is, until rebutted, that one acts honestly. ’ ’

In *Blount*v. *Wheeler,*199 Mass., 330, 85 N. E., 477, the court held, as stated in the first paragraph of the headnotes as reported in 17 L. R. A. (N. S.), 1036, that:

“The promise by one who in good faith intends to contest a will for a cause which does not appear to him to be vexatious or frivolous, not to do so, is a sufficient consideration for a promise to let him share in the estate, without- the necessity of showing that the promisor had reasonable cause to believe that he had a fair chance of succeeding in the contest.”

*92See, also, annotation to case of *Matter of Cook,*244 N. Y., 63, 154 N. E., 823, as reported in 55 A. L. R., 806, at page 815 *et seq.;*also, 41 Ohio Jurisprudence, 448.

So we are of the opinion that there is abundant evidence to sustain the conclusion of the trial court that there was a promise by Annie Hoffman to pay $4,000, and that that promise was supported by a valuable consideration substantially as alleged in the amended petition.

The defendant asserts that as the promise was oral and no note or memorandum signed by Annie Hoffman was produced, recovery is prevented by the statute of frauds. It is claimed a recovery violates the provisions of Section 8621, General Code, in two' respects —first, it permits a recovery upon an oral contract for the transfer of -an interest in real estate, and second, upon a contract not to be performed within one year from the making thereof.

In our view, the statute has no application. If it applied originally to the promise of Mary Rutledge, it could have no application, after she had fully performed, to the promise of Annie Hoffman to pay money. On this subject, it is said in Restatement of Law of Contracts, Section 219:

“If all promises in a contract which are within the Statute are fully performed the performance has the same legal operation as if the Statute'had been satisfied.”

And, also, in Section 221, it is stated:

“Where a contract consists of one or more promises unenforceable because of the Statute, and one or more promises which are not within it, the latter are unenforceable so long as the former remain unperformed or unenforceable but no longer * * *.”

The defense of the statute of limitations was also *93interposed, but there was proof of part payment, which tolled the running of the statute and prevented the bar of lapse of time.

Although not specifically assigned as error, it is claimed that the court erred in sustaining an objection to a question on cross-examination of one of plaintiffs’ attorneys as to whether he did not have a “contingent fee contract in this case.” This witness was one of the counsel of record and was participating in the trial. It had already been developed on cross-examination that he had been attorney for many -members of the Hoffman family, including Annie and Louisa Hoffman and their estates before the controversy arose among them, but had disassociated himself before the institution of this action. He had testified to various conversations that had taken place between • Annie and Louisa Hoffman, and others, in which they recognized the existence of the obligation. His testimony was, therefore, corroborative of that of the witness who had testified to the making of the contract. There was a similar admission testified to by another witness.

We assume that the terms of the employment of the witness was a proper field of cross-examination, but in this case it had already been made clear that he was employed and interested in the success of the plaintiffs. In weighing his testimony the court could properly take that into consideration. If that would not detract from its weight, it does not seem to us that the fact that his fee was to be contingent would destroy his credibility. There was no countervailing evidence. We are especially of this opinion, in view of the fact that this was not a trial td a jury, but to .the court, of which the attorney was an officer.

In 3 American Jurisprudence, 536, it is said:

“Matters relating to the impeachment of a witness *94are also discretionary and hence not reviewable in the absence of an abuse of such discretion.”

In 2 Ohio Jurisprudence, 717, it is said:

“The extent to which cross-examination may be carried and the limitations which may be imposed thereon, also rest largely in the sound discretion of the trial court; Accordingly the question to be determined upon review of its action in this respect is merely whether such discretion has been abused to the substantial prejudice of the reviewing party.” '

We hold that it' does not appear that the refusal of the court to allow the witness to answer the question operated to the prejudice of the defendant, and it is, therefore, no ground for the reversal of this judgment.

We find no prejudicial error in the record and the judgment is, therefore, affirmed.

*Judgment affirmed.*

Matthews, P. J., and Hildebeant, J., concur in the syllabus, opinion and judgment.

Ross, J.,

dissenting. I dissent from the majority opinion, for the reason that the factual conclusions stated therein are not supported by the record. In the amended petition it is stated that the decedent of defendant (Anna Eliza Hoffman) agreed "to pay the decedent of plaintiff Mary Rutledge, $4,000, “in consideration of the promise and agreement by said Mary Rutledge, deceased, who was the sister of Anna Eliza Hoffman, deceased, not to institute any action to contest the will of Mary Barbara Hoffman, the mother of said Anna Eliza Hoffman and said Mary Rutledge, and not to make any effort to vacate or set aside a deed from said Mary Barbara Hoffman to said Anna *95Eliza-Hoffman conveying to her the farm in Fairfield township, Butler county, Ohio, of which Anna Eliza Hoffman died seized. By the terms of said agreement, any and all deferred payments of said amount of $4,000 were to bear interest at the rate of five per cent per annum. ’ ’ It is' alleged further that plaintiffs ’ decedent fully performed her promise, that certain payments were made by defendant’s decedent, and that a balance remains due for which judgment is prayed.

Now this constitutes the allegation of a specific, definite contract, embodying certain terms and legal obligations. In the majority opinion is set out or noted the evidence which it is asserted substantiates this contract. .

It is doubtful whether such evidence even sustains a justifiable conclusion that *any*contract was entered into by the parties, certainly, it is only by recourse to speculation and conjecture that the *terms*of the contract found to exist can be identified and the legal obligations alleged shown to exist.

The majority opinion states- that the record contains *circumstantial evidence*sustaining such result.

In *L. S. & M. S. Ry. Co.*v. *Andrews, Admr.,*58 Ohio St., 426, 51 N. E., 26, it is stated in the syllabus:

“In the absence of direct evidence in its support, an allegation that one sustained injuries by reason of the negligence of the defendant is not sustained by proof of circumstances from which the fact that his injuries were so sustained is' not a more natural inference than any other.”

What are the circumstances proved?

(1) The plaintiffs’ decedent was not satisfied with the disposition of her mother’s estate, as disclosed by the will and deeds of her mother.

(2) A number of family conferences were held.

(3) Court action was discussed.

*96(4) Some agreement between the heirs of the deceased mother was reached.

(5) No action to contest the will or set aside the deeds was ever filed.

(6) The defendant’s decedent from time to time paid certain obligations of plaintiffs’’ decedent.

(7) Some 32 years elapsed from the time the “contract” is alleged to have been made' until suit was filed thereon.

(8) No specific demand was ever made by plaintiffs’ decedent upon defendant’s decedent in which a legal obligation was asserted as the basis for a request for money.

If there is to be recovery in this case, it must be because a legal obligation was assumed by defendant’s decedent, which has not been performed.

It is apparent from the meager evidence in the record that the only justifiable inference is that .the defendant’s decedent did consider herself under *an*obligation to pay something to plaintiffs’ decedent, but it is just as fair and reasonable an inference from such evidence that such obligation was merely a moral obligation to equalize the distribution of the mother’s estate as it is that such obligation constituted a legal basis for this action.

Speculation and conjecture can never reach the status of *circumstantial evidence,*nor can difficulty in securing pi’oof take the place of-proof.

While the statute' of frauds may not have a controlling influence upon the issues here presented, certainly, the lapse of time, the absence of any writing, the indefinite character of the evidence presented, the family. relationship of the parties, all should cause a court to scan with close scrutiny the evidence advanced as supporting the contention that the specific contract alleged in the petition has been proved. __ '

*97My conclusion is that as a matter of law, there was no substantial evidence offered at the trial justifying the conclusion that either the decedent of plaintiffs or defendant ever assumed any legal obligation to do or refrain fr'om doing any specific thing, and that judgment should be here rendered for the defendant.