
    DOROTHY MORROW v. FRED K. PORTER AND OTHERS.
    
    January 9, 1925.
    No. 24,282.
    Specific performance of father’s promise granted.
    1. The evidence sustains a finding that plaintiff’s deceased father bought and orally promised to give or devise her a residence property if .she would care for and support him until his death; and that she cared for and supported him and rendered services of a personal and domestic character, not practically compensated in damages, and was entitled to specific performance upon his failure to effectuate his promise.
    
      Admission of evidence of hearing conversations with decedent erroneous.
    2. Under the statute the plaintiff could not testify as to conversations with or admissions of her deceased father. The statute cannot be evaded by indirection. It was error to permit her to testify that she heard the conversations between her husband and the deceased to which he had testified. In doing so she in effect testified that such conversations were had.
    Action in the district court for Martin county to enforce specific performance of an agreement. The case was tried before Dean, J., and a jury which found that the alleged agreement was made by plaintiff’s father and that she cared for him in fulfilment of it. The court adopted the findings and ordered judgment for plaintiff. From an order denying their motion for judgment notwithstanding the special verdict or for a new trial, defendants appealed.
    Affirmed.
    
      Allen & Allen, for appellants.
    
      Haycraft & McGune, for respondent.
    
      
       Reported in 202 N. W. 53.
    
   Dibell, J.

Action by plaintiff, a daughter of Henry V. Klock, deceased, against Fred K. Porter, his administrator, and his heirs for the specific enforcement of an agreement to devise a residence property in Fairmont, in consideration of her furnishing him a home and care and support during his life. Whether such agreement was made, and performed by the plaintiff, was submitted to a jury. There were findings for the plaintiff and the defendants appeal from the order denying their motion for a new trial.

The deceased, Klock, was a widower 81 years of age at his death on December 9, 1922. The plaintiff and the defendants, other than the administrator, are his children. In the spring of 1920 Klock bought the residence property in controversy. The plaintiff and her husband occupied it, and cared for and supported him, with the interruptions now to be noted, until his death. For a period from May, 1921, to October, 1921, another daughter occupied the home and cared for her father. There was some disagreement or misunderstanding at the time. In October, 1921, the plaintiff moved back, and resumed the care of her father. From May to October, 1922, she cooked for ber husband in bis camp on a ditch contract some miles from tbe city, and lived there. During this period sbe and ber husband frequently drove to tbe city in their auto and attended to tbe decedent’s needs. He was very deaf, bad other infirmities, and was difficult to get along with. His care involved tbe performance of disagreeable services. Tbe evidence justifies a finding that an agreement such as is claimed was made; that when tbe plaintiff returned in tbe fall of 1921 it was reaffirmed; and that tbe plaintiff assumed a personal and domestic relation towards tbe decedent and rendered services so difficult of compensation in money as to warrant a specific performance. Colby v. Street, 146 Minn. 290, 178 N. W. 599, and cases cited; Odenbreit v. Utheim, 131 Minn. 56, 154 N. W. 741, L. R. A. 1916D, 421; Robertson v. Corcoran, 125 Minn. 118, 145 N. W. 812; Brasch v. Reeves, 124 Minn. 114, 144 N. W. 744; Haubrich v. Haubrich, 118 Minn. 394, 136 N. W. 1025. We do not fail to note that tbe period during which tbe plaintiff cared for ber father was not long, measured in years, and that there were tbe interruptions mentioned. Nevertheless, tbe evidence sustains tbe finding.

Tbe plaintiff’s husband testified to two conversations with Klock in proof of tbe agreement and its reaffirmance. His testimony was important. Both were in tbe presence of tbe plaintiff. Sbe could not give evidence “of or concerning any conversation with, or admission of,” ber deceased father. G. S. 1923, § 9817; G. S. 1913, § 8378. Tbe first conversation was in tbe fall of 1919 before tbe residence was bought. Tbe plaintiff testified as follows:

Q. “You beard your husband’s testimony about tbe conversation with your father when you lived in the Garlicb bouse in tbe fall of 1919?
A. “Yes, sir.
Q. “About buying a place for you?
A. “Yes, sir.
Mr. Allen: “We object to tbe question as calling for tbe testimony of this witness with a deceased person. Sbe is a party to this action and no right to testify to that conversation indirectly any more than sbe has directly.
The Court: “The record may stand.
Q. “Did you hear that conversation?
A. “I did.”
Same objection. Same ruling.

The second was in the fall of 1921, when plaintiff and her husband were living in the Swanson house, shortly before the plaintiff’s sister, who lived with her father from May to October, moved away and the plaintiff moved back. It is claimed that the original agreement was reaffirmed at this time. The plaintiff testified:

Q. “Did your father visit you while you lived at the Swanson house?
A. “Yes, sir, many times.
Q. “You heard your husband’s testimony here this morning as to the conversations he had with your father?
A. “Yes, sir.
Q. “When he made these visits?
A. “Yes, sir.
Q. “You heard those conversations, did you?
A. “Yes, sir.”
Mr. Allen: Object to these questions as an attempt to prove a conversation with a deceased person indirectly by a party in interest, and we move that the answer of- the defendant be stricken out on that ground.
The Court: “The motion is denied. He 'has not called for any conversation.”

The effect of the statute, whatever is thought of its policy, cannot be avoided by indirection. It was competent to show that the plaintiff was present when her father made the promises or agreements claimed. If the jury found the promise it might conclude that her subsequent acts were referable to it in that she accepted and performed. With the statute as it is she could not help prove the agreement. -But that is what she did. She testified that she heard the conversations to which her husband testified. A trier of fact would consider her husband’s testimony, and her own as well, in proof of the promise, and indeed both were. Her husband detailed what was said. She said that she heard said what he testified was said. The ease on this point is nearly ruled by Redding v. Godwin, 44 Minn. 355, 46 N. W. 563. It is not controlled by State Bank v. Strandberg, 148 Minn. 108, 180 N. W. 1006. There was error in admitting the plaintiffs testimony.

Order reversed.  