I find myself unable to agree with the majority and therefore respectfully dissent.
The opinion consists of thirty-one pages; five pages stating the facts and parts of the pleadings and twenty-six pages in a learned but unnecessary discussion of the statute of frauds. Unnecessary because the question of the statute of frauds is not the decisive one.
I quote from appellants brief and argument.
"As already pointed out the plaintiff's claim is based on an alleged oral contract by decedent to convey the real estate in question to the plaintiff. The consideration is founded upon an alleged agreement by the plaintiff to cancel and refrain from filing an alleged claim that plaintiff held against the decedent and his wife for services in caring for the latter during her last illness. * * *
"There is no question but that proof of part payment of the consideration takes the contract out of the operation of the statute of frauds. It may be readily conceded that where a claim is based upon an oral contract to convey real estate in consideration for services to be performed in the future, the rendition of such services is sufficient performance or payment *Page 1006 to satisfy the requirements of the statute and no writing is required."
And a little later on in his brief appellant says:
"But such cases are of no help to the appellee in the present situation. In the instant case, the alleged oral agreement did not call for any act or services to be performed by the plaintiff in the future and no act was in fact performed. The agreement contemplated a mere failure to act. The difference of course is fundamental, both upon reason and authority."
"The reason underlying the exception to the statute of frauds based upon `payment of the purchase price' or `part performance' is that where one of the parties has done some act by way of performance, then the proof of the contract does not rest upon mere words alone. There is then something definite that can be tied to; words of the witness are corroborated by some act that is established; and consequently there is less likelihood of perjury and bringing of false and unfounded claims. The performance of services by one party for another certainly gives rise to the inference that they must have been performed pursuant to some contract, understanding or agreement, but in our case a mere failure to act is equally consistent with the non-existence of any claim at all or the existence or non-existence of any oral agreement."
I turn now to appellee's theory of his case.
"The appellee is not relying in any way upon services rendered prior to the date of the agreement sought to be enforced to constitute part of the performance or payment such as would take the case out of the Statute of Frauds. Appellee is relying upon the fact that he performed his part of the agreement by forebearing to file his claim for services after the agreement was entered into."
"The averments in plaintiff's petition concerning the performance of the services by him and the agreement of testate to pay for same are not more than a recital of the inducements which led the Plaintiff and Testator, James, to enter into the contract which is sought to be enforced herein and must be distinguished from the consideration for the performance of the oral agreement. Clayman v. Bibler, 210 Iowa 497 at 501,231 N.W. 334. And so we say that the cases cited by Appellants *Page 1007 in regard to future and past services have no applicability to this case."
"Appellants attempt to argue the proposition that where an agreement for the cancellation of an existing indebtedness owed by decedent to claimant for alleged past services is relied upon to constitute part performance or part payment, that in order to take the case out of the Statute of Frauds there must be some writing such as a receipt or written credit to evidence such fact. As above stated, Appellee does not rely upon the performance of services to constitute the performance of his part of the contract."
I quote now from appellee's reply to amendment of appellant's amended brief and argument.
"The argument in Appellants' Brief and Argument is directed to the Statute of Frauds. Permit us to say that the case of Groh v. Miller, 196 Iowa 367, 195 N.W. 259, and Bader v. Hiscox, 188 Iowa 986,174 N.W. 565, 10 A.L.R. 316, were cited in Appellee's original Brief and Argument for the sole purpose of supporting his contention that a contract such as the one sued upon, though in parol when it has been performed by one of the parties, will be enforced in equity. (Appellee's original Brief and Argument, p. 8 et seq.) They were not cited for any other purpose at that time. While they refer to The Statute of Frauds, it was not our intention and we did not enter into any discussion of the Statute of Frauds at that time. They were cited under the general proposition that `The procedure pursued by Appellee is authorized by statute.' (Appellee's original Brief and Argument, p. 8, also Argument of Proposition 1 on p. 9.)"
There is no dispute between the parties as to the statute of frauds, nor the many cases that this court has handed down covering this important subject.
The appellee claimed that he performed certain services, nursing and caring for his sister, Nan James, with the understanding that he would be paid therefor. That he demanded payment for these services after her death from her husband, W.H. James, the main beneficiary of her estate, and that if his services were not paid for, appellee would file a claim against her estate. He claims that W.H. James promised that if appellee *Page 1008 would not file a claim against the wife's estate, he (W.H. James) would convey to appellee certain described real estate. That appellee performed his part of the agreement by not filing a claim against the Nan James' estate. The records of that estate were introduced which showed he did not file a claim. The main contention of both parties, as I read the record, is whether there was sufficient evidence to support appellee's contention, and whether or not the failure to file a claim was part performance on appellee's part so as to escape the statute of frauds. Instead of deciding the case upon the theory upon which it was tried and passed upon by the lower court, the majority found it necessary to spend considerable time in an unfavorable discussion of the case of Northwestern Mutual Life Insurance Co. v. Steckel, 216 Iowa 1189, 250 N.W. 476.
It is interesting to note that the able and distinguished counsel who represented both sides of this case did not rely on the Steckel case.
This is an equity case and appellee filed the first brief. The Steckel case is not cited. It is not even mentioned. Appellants filed brief and argument consisting of 57 pages; again I find that the Steckel case was not cited, not even mentioned. Appellees filed a reply brief consisting of 43 pages; the Steckel case was not cited, it was not mentioned. And so we find that in the briefs and arguments that this court under its rules allows, neither side cited or mentioned the Steckel case. On the morning the case at bar was orally argued in this court, the appellants filed contrary to the rules of this court what they call an amendment to appellants' brief and argument consisting of five and one-half pages. For the first time the Steckel case is mentioned. Do they say that it should be overruled; that it is contrary to this court's former opinions? So that there can be no question as to the appellants' position in regard to the Steckel case, I quote from their amended brief:
"In Northwestern Mutual Life Insurance Co. v. Steckel the action was brought to recover upon a promissory note a deficiency remaining after the foreclosure of a real estate deed of trust in the state of Missouri. The defense was that before the commencement of foreclosure proceedings the mortgagor made an oral agreement with the agent of the plaintiff insurance company, by the terms of which the defendant agreed to execute a *Page 1009 deed of the farm to the mortgagee and to pay in addition the sum of $750.00, and that in consideration therefor the mortgagee agreed to cancel and release the indebtedness. The record showed that pursuant to this agreement the mortgagor executed a deed to the premises and delivered it to the agent of the mortgagee and also delivered to said agent a check for $750.00. The agent acknowledged receipt of the deed and check, but returned both and foreclosed the mortgage.
"It is submitted that the execution and delivery of the deed and check for $750.00 constituted complete performance of the oral agreement by the defendant and such performance was clearly sufficient to take the case out of the statute of frauds, and there was no occasion or necessity for the court to discuss the sufficiency of the cancellation of an existing debt as consideration or part performance.
"In other words, there was more in the Steckel case than simply an agreement to cancel the note and mortgage in return for other acts to be done by the mortgagors. The evidence went further and showed that the defendant had fully performed his part of the agreement by delivering the deed and actually paying the money."
Appellee then filed what he designates as "Appellee's Reply to Amendment of Appellant's Brief and Argument", and for the first time the appellee mentions the Steckel case. I quote:
"We think this case is in harmony with the well established rule in this state, that is, that when the purchase price has been paid or Plaintiff has shown performance of his part of the contract, the case is not within the Statute of Frauds."
Thus I find that neither side relied on the Steckel case, that it was not even cited in the briefs permitted by the rules of this court, so naturally I am surprised in view of such a record to discover that the majority find it necessary to overrule that decision.
But is the Steckel case out of line with the former decisions of this court?
In Hotchkiss v. Cox, 47 Iowa 655, this court said:
"If the plaintiff and her husband agreed to relinquish their interest in the property in consideration of the discharge of the plaintiff's husband's indebtedness to his father, and in *Page 1010 consideration of his expense to his father in his last sickness (and the evidence shows that the father took his son in his last sickness into his house and kept him until he died), it appears to us that the agreement, although resting in parol, was valid."
In the Hotchkiss case, there was no writing that the pre-existing debt was discharged; all of the evidence as to part performance of the consideration was oral.
In the Steckel case, the question was whether the oral agreement to deliver the deed and the draft of $750 was admissible. The lower court refused to admit it, this court reversed the case. In the Steckel case there was a delivery of a deed and a draft of 750 some dollars, in accordance with the agreement made. In other words there was part performance, as there was in the Hotchkiss case.
In Kerr v. Yager, 158 Iowa 69, 138 N.W. 905, the consideration was the agreement to discharge pre-existing indebtedness for services in clearing up the premises and paying taxes. It was all based on parol evidence.
In the case of Dorr Cattle Co. v. Bank, 127 Iowa 153,98 N.W. 918, 4 Ann. Cas. 519, the question was over the delivery of a deed, the same proposition as involved in the Steckel case. The claimed agreement was based on oral evidence, there was no written evidence. In the Dorr case the parol evidence was admitted and in the Steckel case this court said it should have been admitted. In my judgment one would have to use a pretty fine microscope to find any distinction between the cases.
The late Justice Evans, who for twenty-five years served with distinction as a member of this court, wrote the opinion in the case of Richardson v. Estle, 214 Iowa 1007, 243 N.W. 611. Again it is the question of delivery of a deed, based purely upon parol evidence; no written evidence of any kind, and the delivery was to the post office not to the party claiming the agreement, and this court held it did not come within the statute of frauds.
I quote from the opinion in the Richardson case.
"The oral contract was valid and was therefor enforceable. It was not within the statute of frauds [Code 1931, § 11285]. So we held in Kerr v. Yager, 158 Iowa 69, 138 N.W. 905. It was there held that a parol contract for the transfer of real estate in consideration of the extinguishment of existing indebtedness *Page 1011 was an enforceable contract and was not within the statute of frauds. It had been so held in Hotchkiss v. Cox, 47 Iowa 655; and again in Dorr Cattle Co. v. Des Moines Bank, 127 Iowa 153,98 N.W. 918, 102 N.W. 836 [4 Ann. Cas. 519]."
The majority cite the case of Scott v. Mundy Scott, 193 Iowa 1360,188 N.W. 972, 23 A.L.R. 460, and state that the Steckel case is contrary to that decision. With this I cannot agree. I quote from Judge Faville's opinion, 193 Iowa at page 1374,188 N.W. at page 978, 23 A.L.R. 460:
"Applying this rule to the instant case, it follows that the oral agreement claimed to have been entered into between Ray Scott and Ralph Scott at the fair grounds, whereby an undivided interest in the oil lease referred to is claimed to have been sold for a consideration resting solely on a parol agreement to discharge a pre-existing debt, was within the provisions of our statute of frauds, and the objections of the appellant to the oral testimony to establish such agreement should have been sustained. It is conceded on all hands that this agreement rested wholly in parol; that no receipt, book entry, or written memorandum was ever made in regard to the same by either party; that no part of the property was ever delivered; that none of the dividends or other proceeds derived from the property were ever turned over to the appellee; nor was any other act or thing donebetween the parties, further than the mere oral agreement todischarge a pre-existing debt." (Italics ours.)
Thus we find that in the Scott v. Mundy Scott case, there was a mere oral agreement to discharge a pre-existing debt and "Noother act or thing was done between the parties", while in the Steckel case the deed was executed and sent to the insurance company together with the draft. Keep in mind that in the Steckel case, the lower court refused to admit the oral evidence of the agreement while in the Dorr Cattle case and Richardson v. Estle it was admitted.
It is interesting to note that Justice Stevens joined in the Scott v. Mundy Scott opinion and that he also concurred in the Steckel opinion. For seventeen years he was a distinguished member of this court, he did not believe that the Steckel case was contrary to the Scott v. Mundy Scott, in which he concurred and he was familiar with both opinions. *Page 1012
The majority say "Under the authority of the Steckel case, in every action to foreclose a real estate mortgage, or to recover a deficiency on the note after foreclosure sale, the mortgagor or maker could allege that the mortgagee orally agreed to satisfy the mortgage indebtedness by accepting a deed to the mortgaged premises and establish it by oral testimony."
The Steckel opinion was written in 1933. There have been more foreclosures in the past six years than at any time in the history of Iowa, but no case has come to this court relying on the Steckel case. The same argument could have been made against the opinion in all of the cited cases. I can see no reason why an insurance company has a right to go back on an agreement to take back a piece of land, where the agreement is carried out by the delivery of the deed and draft as in the Steckel case. The statute of frauds was not passed for that purpose and this court has so held from the Hotchkiss case down to the Steckel case.
I readily admit the writer of the opinion in the case of Northwestern Mutual Life Insurance Co. v. Steckel, 216 Iowa 1189,250 N.W. 476, might have been mistaken in his interpretation of what our former decisions meant, but it is interesting to note that that opinion was concurred in by the then Chief Justice Albert and Justices Stevens, Anderson and Kintzinger and there was no dissent.
This court as it is now composed has a right to change the rule and overrule its former decisions but it should say so frankly, rather than claim that these eminent jurists, who through the years have cited these cases as laying down certain rules of law, were not warranted in doing so, and that what they relied upon was mere dictum.