Schumacher v. Breweries Co. In discussing this principle of law, this court in the case of Barney v. Railroad, 126 Mo. 372, 1. c. 392, in speaking through SHERWOOD, J., said: "But plaintiff's counsel says that defendant assumed the duty of keeping its yards clear of boys, by giving instructions to its yard hands, etc.; but that this duty was neglected and therefore a cause of action arises alone from this neglect. But if the prior duty did not exist to keep the boys out of the yards, then the mere assumption of a nonexistent duty would be but a gratuity, with no precedent or concurrent consideration on which to base it, and therefore no liability would follow such assumed and pretermitted duty. Mere pretermission of a self-imposed precaution does not constitute actionable negligence." If this charge of duty to furnish the watchman was properly omitted from the instruction, then it could have been properly omitted from the petition. Now, if omitted from the petition, the only remaining act of negligence charged would be the general statement, that the lumber was negligently thrown from the window, with stating the facts constituting the negligence. While this general charge of negligence might ordinarily have been sufficient after verdict, but not so in this case, for the reason that there was no evidence introduced to support it. The evidence failed to show that the mode or manner of throwing the lumber from the window was negligence, but it did tend to show that the omission to furnish a watchman to warn employees of the danger incident to the careful mode or manner of throwing it was negligence and that said negligence was the cause of the injury. That being true, it necessarily follows that the instruction. given was erroneous, because of the variance between the petition and the instruction, without it can be held good, upon the theory contended for, that the custom before mentioned to furnish a watchman, was known 247 Mo.-11 Schumacher v. Breweries Co. to appellant and that relying upon the custom, he was lulled into a sense of security, and that in consequence of said negligence of the respondent in failing to furnish the watchman, he was injured. This contention will not cure the error pointed out in the instruction, and consequently will not bridge the chasm existing between the instruction and the petition, because it broadens the issues made by the pleadings and authorizes a recovery upon a ground not stated in the petition. GRAVES, J., in a separate concurring opinion in the case of Black v. Railway Co., 217 Mo. 672, 1. c. 685, clearly stated the rule applicable to this state of facts, in the following language: "In other words, a correct and proper instruction must be (1) an instruction based upon and authorized by the evidence, and (2) an instruction in no wise going beyond the purview of the pleadings. If in the trial of a cause the court permits the evidence to assume a broader scope than indicated by the petition, such does not authorize an instruction broader in terms than is the petition. 'A court does not possess the power to change by instruction the issues which the pleadings permit.' [Bank v. Murdock, 62 Mo. 1. c. 73.]" There are no rules of pleading or evidence which will support this instruction. We are, therefore, of the opinion that the order of the court granting a new trial was proper, because it gave the erroneous instruction mentioned. The judgment is affirmed. All concur. McQuitty v. Wilhite. HARRIETT MCQUITTY v. R. L. WILHITE et al., Appellants. Division One, December 24, 1912. 1. SPECIFIC PERFORMANCE: Testimony of Black Witnesses. The fact that the witnesses of the aged black woman who sues for the specific performance of an oral promise of a white man to give her forty acres of land, were black, and that the testimony of some of them was indistinct on dates and lacking in precision, is to be taken in just relation with the other fact that two experienced and learned trial chancellors have rendered judgment in her favor based upon their testimony. 2. 3. 4. : Oral Contract to Convey Land: Colored by Fact That Illegitimate Children Were Born. The fact that the plaintiff, a black woman, bore two children to the unmarried white man who she alleges promised to give her forty acres of land if she would remain with him until his death and perform household duties, which she did, does not supply' a legal consideration for the contract, nor should it alone discredit the contract or avoid it. -: : Danger of Imposition and of Doing Injustice. While danger lurks in a case to specifically perform an oral contract to convey land after the promisor is dead, and rigid rules govern and must be observed, yet the court should also be alert to avoid the other danger of doing injustice to a faithful and confiding promisee, from whom, taking advantage of her ignorance and helplessness, the promisor reaped performance, and while doing so procrastinated and dallied with his promise and died without performance on his part. :: : Reasonable, Etc. Where the oral agreement to convey the land for services to be performed, is not improbable; the amount of land claimed is not excessive when compared with the amount of the promisor's estate and the many years of peculiar service; there are facts to induce a conclusion that the contract was likely to be made; the promisee relied upon it, and performed on her part; and the services contemplated by the contract were not to be readily recompensed by mere money, and are referable to the contract, it will be specifically performed. McQuitty v. Wilhite. Appeal from Boone Circuit Court.-Hon. N. D. Thurmond, Judge. AFFIRMED. W. M. Williams and E. W. Hinton for appellants. (1) The evidence was wholly insufficient to establish and contract whatever on the part of deceased to give or devise land to the plaintiff. Forrester v. Sullivan, 231 Mo. 345; Collins v. Harrell, 219 Mo. 279; Wales v. Holden, 209 Mo. 552; Rosenwald v. Middlebrook, 188 Mo. 58; Kinney v. Murray, 170 Mo. 700. (2) The proof fails to establish any definite contract or understanding, to say nothing of the one pleaded. Oliver v. Johnson, 238 Mo. 359; Collins v. Harrell, 219 Mo. 279; Rosenwald v. Middlebrook, 188 Mo. 58. (3) There is no equity in the claim because it does not appear that the services were rendered because of the alleged contract and in performance thereof, or that there was any unjust enrichment impossible to compensate in money. Collins v. Harrell, 219 Mo. 279; Berg v. Moreau, 199 Mo. 434; Rosenwald v. Middlebrook, 188 Mo. 93. J. L. Stephens for respondent. (1) To deny specific performance would work a fraud and a hardship upon plaintiff and in equity and all good conscience, plaintiff is entitled to a decree of specific performance. This contract and its fulfillment to the letter on the part of the respondent is irrefutable; sealed by the ties of flesh and blood. What stronger token or sign of a disposition on the part of the deceased to carry out an agreement could be made. Nothing but death could or did prevent. The statements made by the deceased in regard to having given the respondent the forty acres of land described in the petition are clear and convincing, and McQuitty v. Wilhite. the reasons given therefor all go to show that the contract was made and that deceased was firm in his purpose to execute it on his part before death. (2) Complete performance of a contract, though not in writing, by one of the contracting parties, takes the case out of the Statute of Frauds, and a parol promise to leave property in consideration of personal services is good under the same circumstances, and an action by bill in equity is proper to vest title in plaintiff. Blees v. Jenkins, 129 Mo. 647; Suggets v. Carson, 26 Mo. 221; Self v. Cardell, 45 Mo. 345; McDonald v. Brayner, 63 Mo. 461; Winters v. Cherry, 78 Mo. 344; Carney v. Carney, 95 Mo. 353; McDermott V. Sharkey, 91 Mo. 647; Sutton v. Hayden, 62 Mo. 101; Wright v. Tinsley, 30 Mo. 389; Gupton v. Gupton, 47 Mo. 37; Berg v. Moreau, 199 Mo. 416; Healy v. Simpson, 113. Mo. 340; Nowack v. Berger, 133 Mo. 24; Alexander v. Alexander, 150 Mo. 579; Lyenn v. Hockaday, 162 Mo. 111; Hall v. Getman, 121 Mo. App. 630; Goodwin v. Goodwin, 172 Mo. 48. LAMM, J.-Plaintiff, a black woman (well towards, if not over) eighty years of age, sues for performance in specie of a contract by one W. to convey to her forty acres of land, worth, say $2000. From a decree in her favor, defendants, the collateral heirs of W. (now deceased) appeal. The single question is whether the evidence supports the decree. About the close of the Civil War plaintiff came to W.'s plantation in Boone county as his housekeeper. He was then a widower and never remarried. He had an only child who died and left no offspring. We take it that at all times in hand he had a considerable plantation and subsequently added to it. He ran his plantation solely with negro help, and if there were any white folks about him on the plantation it is not disclosed. In 1877 he acquired a tract known |