Citations
- 81 Ohio App. 85
Full opinion text
Matthews, P. J.
This is an appeal on questions of law from a'judgment in favor of plaintiffs for breach of contract.
The 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. In 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 old, 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:
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