I have concluded upon reconsideration of this cause, that the judgment under review should be affirmed; the trial court simply holding that all jury findings of reasonable value concerning appellant's services prior to the years 1938 and 1939 were of no effect, because barred by the two-year statute of limitations.
The high frequency of litigation involving oral agreements to devise real property in consideration of personal services is illustrated by more than 200 pages of annotations following Andrews v. Aikens, Idaho, 69 A.L.R. 8; the usual remedy pursued in such cases being (1), for specific performance, where permissible under existing law; (2) suits for reasonable value of the services rendered; or (3) damages for breach of the particular contract. In Texas, the statute of frauds intervening to deny specific performance of the oral contract to devise, the relief uniformly afforded is by an action in quantum meruit; the law substituting a valid promise to pay reasonable compensation for the void remedy of specific performance; Raycraft v. Johnston,41 Tex. Civ. App. 466, 93 S.W. 237, writ refused. The testamentary agreement is material and must be established, however, to rebut the presumption that the services were rendered gratuitously, and that there was no contract breach until the promisor's death; hence, not affected by the bar of limitations.
The customary method of submission in such cases is shown in Moore v. Rice, Tex. Civ. App. 110 S.W.2d 973, 975, where the first issue determined was the oral agreement of deceased, T. M. Jones, to devise realty, in which connection the court stated: "We understand the true rule to be, as applied to the facts disclosed by the record, that plaintiff may recover, if at all, only upon a suit for the reasonable value of services rendered to deceased, and that he cannot recover upon the contract alleged whereby Jones agreed, in consideration of Rice's services, to devise and bequeath to Rice whatever property he might possess at the time of his death, the statute of frauds being interposed as a defense. The cause of action asserted by the third count is not a suit based upon such contract, but said contract we think, may be proved to show (1) that the services of Rice were not intended to be gratuitously rendered, and (2) to show that the cause of action asserted under the third count, which is a suit for the reasonable value of the services rendered by Rice to Jones, is not barred by limitation."
In all the various decisions on the subject, the express agreement of testamentary intention was established as a prerequisite to an implied obligation to pay compensation for the entire period of the services; and, in this record, said primary finding was not made either by court or jury. Absent any specific contract to pay through a will, plaintiff's pleading (paragraph 6), and issues 1 and 2, that services were rendered and the value thereof, are referable only to an implied agreement to pay therefor, against which limitation would run from the time of their performance. Ivey v. Lane, Tex. Civ. App. 225 S.W. 61, writ refused; McFaddin v. Trahan, Tex. Civ. App. 80 S.W.2d 492.
It is, of course, the position of counsel that Mr. Bower's agreement to bestow the property by will was an undisputed fact of record; notwithstanding the uniform holdings of Texas courts that "Such contracts are looked upon with suspicion, and are only sustained when established by the clearest and strongest evidence." Mulkey v. Allen, Tex.Com.App., 36 S.W.2d 198, 203. "The courts have been disposed to require more satisfactory evidence to establish agreements of this character than is *Page 592 usually accepted as proof sufficient of contracts generally"; Henderson v. Davis, Tex. Civ. App. 191 S.W. 358, 361. "Such contracts are viewed with great caution and can only be established by full and satisfactory proof, and no presumptions or inferences will be indulged in favor ofthem." Ivey v. Lane, supra [225 S.W. 62]. (Italics mine.) See, also, Dyess v. Rowe, Tex. Civ. App. 177 S.W. 1001, writ refused. In this case, the agreement to devise was specifically denied, followed by pleading and evidence on part of defendants that the oral understanding in fact was as reflected in issue 3 of the charge, same being that plaintiffs were to occupy the house jointly with decedent, the latter to pay all utility bills, no rent to be required in consideration of furnishing Mr. Bower with meals, laundry and household services. Though the jury answered "no" to aforesaid defensive issue 3, yet the arrangement plead by defendant was not one to run for the entire lifetime of one party, but, on the other hand, was an agreement terminable at will. The agreement to devise, relied upon by plaintiff, cannot be regarded as an undisputed fact, and not being submitted as an issue, nor requested, it effectually passed out of the case as an element of her cause of action. Any issue on paragraph 3 of the petition (agreement to devise) having been eliminated by the court's manner of submission (not objected to), plaintiff has obviously elected to stand on issues raised by her paragraph 6 (an alternative count alleging rendition of services at defendant's instance and request). And to escape the bar of limitation under this independent count, seeking to establish an express agreement for remuneration, it was plaintiff's further burden to prove a mutual understanding for compensation, payable at promisor's death. No issue was requested by plaintiff, inquiring as to whether the oral contract of paragraph 6 was entire, continuous and thereby not terminable until death of Mr. Bower.
In short, it is my conclusion that the issue of an agreement to devise, not submitted, has been waived; and, in light of defensive pleading and proof, cannot be considered as an undisputed fact on which to base an entirely different contract for money compensation, to continue during obligor's lifetime. It was plaintiff's duty to affirmatively establish that the independent oral contract alleged in paragraph 6 was sopayable, in order to void the bar of limitation, and this she has not done. It is elementary that a party must prove every material element on which he relies for recovery; and, having asserted the affirmative of an issue, which is denied, he must establish it. To summarize: Plaintiff not having based her claim on an oral agreement to devise; and the defensive admissions being wholly insufficient to support her contention of an entire and continuing oral agreement, she is compelled in law to establish that the rendition of services for money compensation was to continue during the lifetime of Mr. Bower. In lieu of the finding just referred to, the gist of plaintiff's case is an implied obligation to pay for services rendered — obviously, a situation to which the two-year statute of limitations is applicable. Dyess v. Rowe, supra. *Page 712