Morten v. Zevalkink , 304 Mich. 572 ( 1943 )

On August 21, 1939, plaintiff filed a bill of complaint for specific performance of an oral contract.

The following facts are not in dispute. Plaintiff was legally adopted by defendant Barend Zevalkink as his daughter in October, 1928, when she was about 32 years of age. She first became acquainted with Mr. Zevalkink when she was about 9 years old. When plaintiff was about 17 years of age, her mother married Barend Zevalkink. Following the marriage, plaintiff went to live with her mother and stepfather at their home in Grand Rapids.

In December, 1921, plaintiff married Spencer W. Morten and made her home in or about St. Louis, Missouri, from the time of her marriage until the death of her mother in the fall of 1938. As a result of the marriage, two sons were born to plaintiff, Spencer W. Morten, born October 24, 1922, and Robert Morten, born September 16, 1924. On April 9, 1937, plaintiff was divorced from her husband. She was awarded custody of her two sons and $85 per month for their support.

Prior to November, 1938, plaintiff owned a home in Clayton, Missouri, a suburb of St. Louis, in which she lived for approximately 12 years. This house was encumbered by two real-estate mortgages aggregating the sum of $12,600. Following her divorce, plaintiff rented the house and lived in St. Louis.

On April 1, 1938, plaintiff entered into the employ of the Wage Earners Health Association, a cooperative medical group, as membership secretary at a salary of $100 per month and worked through the month of June. In the early fall of 1938, she returned to work for the same employer, but the method of paying her salary was changed. Under the new arrangements she received a salary of $35 per month and certain commissions.

Plaintiff's mother died November 21, 1938, and Barend Zevalkink called plaintiff soon after it happened. Plaintiff arrived in Grand Rapids on the following day and stayed at defendant's home until after the funeral. Within a few days after the death of Mrs. Zevalkink, plaintiff and defendant entered into an arrangement whereby plaintiff and her two sons were to live in defendant's home.

Plaintiff returned to St. Louis to get her clothing and to terminate her employment with the health association on November 27, 1938. Shortly thereafter, she returned to Grand Rapids; and about January 1, 1939, plaintiff and her two sons together with defendant left for St. Louis where they were to get plaintiff's furniture. Defendant sent a truck and two men to St. Louis for this purpose. Plaintiff sold some of her furniture in St. Louis and the balance of it was brought to Grand Rapids. About this time plaintiff and her former husband entered into an arrangement and the divorce decree was amended permitting the boys to live with plaintiff in Michigan and reducing the alimony from $85 to $40 per month. Following her return to Grand Rapids, plaintiff and her sons made their home at defendant's residence where plaintiff acted in the capacity of housekeeper for her two sons and defendant. She received no salary for these services.

On April 7, 1939, defendant Barend Zevalkink, who had been in Detroit for a few days, returned and informed plaintiff that he was going to marry one Annie Buford. On April 11, 1939, defendant was married to Annie Buford, but prior to the marriage plaintiff and defendant discussed what arrangements were to be made concerning plaintiff and her two sons. It was agreed that plaintiff and her sons were to live separate from defendant and his new wife. The following agreement was executed:

"This agreement, made this 13th day of April, A.D. 1939, between Barend Zevalkink, 1555 Pontiac road, in the city of Grand Rapids, Kent county, Michigan, party of the first part, and Josephine Audrain Morten, of the same place, party of the second part, witnesseth:

"Whereas, the said party of the second part has heretofore performed certain services of great value to said party of the first part,

"And whereas, the parties hereto are father and daughter,

"And whereas, said party of the second part now holds herself ready to perform such services for and on behalf of said party of the first part when and if requested so to do,

"Now, therefore, in consideration for said services heretofore performed by said second party and her readiness to perform such service in the future when requested so to do by said party of the first part, it is agreed, that said first party shall pay the sum of $60 to said second party on the first day of each and every month hereafter while this contract shall continue in force."

On May 1, 1939, plaintiff moved to a new location and on this date defendant paid her $50 in pursuance of the above agreement. This sum was the only money paid by defendant under the agreement. On or about May 25, 1939, plaintiff received the following letter:

"Dear Madam:

"Barend Zevalkink has taken up with me in detail the matter of a certain written document which he executed on the 13th day of April, 1939, wherein he agreed to pay you $15 each and every week thereafter.

"He complains that this document is unjust, unfair and in fact illegal, and that there is no reason, legal or otherwise, why he should abide by the terms of it.

"Otherwise stated, he believes that he should not pay any part of the amounts contemplated in this paper.

"As his attorney, therefore, I am writing you this letter for the purpose of definitely stating, that Mr. Zevalkink disclaims any and all liability by virtue of any facts that gave rise to it, and to further inform you that he will not pay any of the sums, or any part of them contemplated, or appearing to be contemplated, by this alleged written agreement.

"Kindly accept this as Mr. Zevalkink's final and definite determination in this matter.

"Yours very truly, "(Signed) IRVING H. SMITH."

On August 21, 1939, plaintiff began the present suit. She claims that she and defendant made a verbal agreement during the week following the death of her mother in November, 1938; and that the written agreement hereinbefore referred to merely modified the previous verbal agreement.

Plaintiff claims that she and defendant verbally agreed that if she would give up her home in St. Louis, Missouri, come and live with defendant and make a home for him during the remainder of his natural life, he would never remarry, that he would provide a home for plaintiff and her two sons, that he would pay for the education of the two sons, that he would never revoke his will which provided that upon his death plaintiff and her two sons would become the beneficiaries of all his property both real and personal, that he would make payable to plaintiff certain policies of life insurance amounting to the sum of $50,000 and keep in force other policies of insurance on his life amounting to $13,000 in which plaintiff was named as beneficiary.

Plaintiff further claims that as a result of this agreement, she terminated her employment in St. Louis where she had prospects of making $150 per month; that she sold some of her furniture at a loss of $1,265.25; that because of a mortgage foreclosure on her home in St. Louis, which defendant promised to redeem, she lost the sum of $4,400; that she assigned to defendant 10 shares of capital stock of the Columbian Storage Transfer Company of the par value of $100 per share which stock was a part of her mother's estate; and that she consented to a reduction in her alimony from $85 to $40 per month.

Defendant admits the execution of the written agreement hereinbefore referred to, but insists that it was to be effective only until plaintiff got a job or remarried. Defendant denies the existence of an oral contract as claimed by plaintiff, but admits that he agreed to pay plaintiff $40 per week to maintain his home and that plaintiff could have certain charge accounts.

The trial court filed an opinion in which he made the following statements:

"Also, the claims made by plaintiff are corroborated and borne out in many important points by the admissions of defendant, and by the indisputable fact that from December 15, 1938, to May 1, 1939, the parties mutually lived up to the details of the agreement as claimed here by plaintiff. * * *

"At defendant's home in November, 1938, when plaintiff was at her mother's funeral, defendant proposed to her that she should give up her job in St. Louis and come and take her mother's place in looking after and caring for and managing his home, thereby making a home for her and the boys and for him. Upon his urging and promises made by him to her it was agreed by and between them that she would accept his proposition to come and take charge of his home, give up her employment and her home in St. Louis, and dispose of some of her furniture as he directed. Thereupon on December 1st, she returned to St. Louis and resigned her employment and arranged in regard to her home there, returning to his home December 15, 1938, where she began her duties under her agreement with defendant and remained until May 1, 1939. * * *

"The matter of salary or pay for services as such, was never mentioned between plaintiff and defendant in their agreement or while she was at his home. She was performing service for him as he requested for the remainder of his life, when she would be the recipient of his estate and life insurance, thus showing the permanent extent and character of the agreement between them. * * *

"There is no doubt as to the purpose of Exhibit 9 (written agreement of April 13, 1939) which was made to supplement the original agreement between the parties so as to provide for the living and comfort of plaintiff in a house she would select instead of remaining at defendant's home. In fact, Exhibit 9 definitely acknowledges that plaintiff has been in his service and `has performed certain services of great value' for him, and that they are `father and daughter,' and that `She is ready now to continue such services,' and he agrees to pay to her the sum of $60 each month `hereafter' while this contract shall remain in force.

"It is obvious Exhibit 9 was then intended to provide for maintenance of plaintiff at defendant's expense outside of his home, and there is no testimony of any other change in the original agreement between plaintiff and defendant. * * *

"The fact that plaintiff assigned over to defendant a certificate of stock in the Columbian Storage Transfer Company for 10 shares of the par value of $1,000, without consideration other than defendant's promise to her, as made in her original agreement with him and her reliance thereon in making this assignment, is cogent evidence of the good faith of her claims as here made.

"The fact that there are no circumstances which tend to militate against the probability of plaintiff's claims or which tend to support the denial made by defendant of plaintiff's claims, supports plaintiff's claims here made. * * *

"The testimony in the case offered by plaintiff, supported by conditions and circumstances which establish its probability without any doubt, shows that plaintiff's claims are justly made, and that she is entitled to recover for such items of damage as have been established."

A decree was entered which stated that:

"Plaintiff satisfactorily performed all acts which she was obligated to perform in connection with the performance of both of the above-mentioned agreements insofar as she was permitted to do so by defendant Barend Zevalkink, and that plaintiff is still ready, willing and able to continue the performance of all such acts, and it further appearing that defendant Barend Zevalkink has breached and violated the terms and provisions of both of said contracts contrary to the rights of the plaintiff * * * and that the plaintiff has been materially damaged thereby, and that plaintiff is entitled to relief prayed for in her bill of complaint."

The decree provided that in lieu of a decree for specific performance, plaintiff recover the sum of $3,000 for the loss of the equity in her former home in St. Louis; the sum of $1,200 for losses sustained in the sale and disposal of her furniture; the sum of $7,484.16 representing the present worth of a $13,000 life insurance policy; the sum of $7,749.17 representing the present worth of the written contract to plaintiff; the sum of $885 representing the present cash value of the shares of Columbian Storage Transfer Company stock; the sum of $8,635.57 representing the present worth of a house and lot which has a present cash value of $15,000. The decree also provided that all transfers of property to Annie Buford Zevalkink or the other defendants are set aside and declared null and void.

Defendants appeal and contend that plaintiff failed to establish an oral contract as claimed in her bill of complaint for specific performance by clear, convincing or persuasive evidence; that the contract alleged by plaintiff shows no mutuality of obligation or remedy; that the contract if established is void under the statute of frauds; that the contract if established could be rescinded by either party; that said contract if established and held valid would entitle plaintiff to only the actual value of any service she had rendered over and above what she had already received; and that when plaintiff entered into the written contract of April 13, 1939, and later moved out of defendant's home, she terminated any and all prior arrangements claimed to have been made with defendant.

In our opinion the question of the establishment of the oral contract is a disputed question of fact. It would not serve any useful purpose to relate in detail the evidence for and against the existence of such a contract.

The trial court found as a fact:

"Upon his urging and promises made by him to her it was agreed by and between them that she would accept his proposition to come and take charge of his home, give up her employment and her home in St. Louis, and dispose of some of her furniture as he directed."

We hear chancery appeals de novo and are not unmindful of the advantage possessed by the trial judge before whom the witnesses appear in person. We have read the record carefully and concur in the finding of the trial court that an oral contract was entered into.

Defendant urges that the oral contract being contrary to the statute of frauds (3 Comp. Laws 1929, § 13413 [Stat. Ann. § 26.908]) was void. We are not in accord with this broad statement. It is the law in this State that the statute of frauds is not applicable to an executed verbal agreement. See Salsbury v. Sackrider, 284 Mich. 493; Mayes v. Central Trust Co.,284 Mich. 504; Van Camp v. Van Camp, 291 Mich. 688;Kendzierski v. Kendzierski, 293 Mich. 701; and Guzorek v.Williams, 300 Mich. 633.

Defendants also urge that there is no mutuality of obligation or remedy in the oral contract. The doctrine of mutuality applies only to executory contracts. It does not apply to executed contracts. Plaintiff urges that there was such a substantial performance of the contract as to take it out of the doctrine of mutuality; and that the contract must be considered as an executed contract as plaintiff fully performed the contract until she was precluded from further performance by the action of her father.

In Duncan v. Duncan, 288 Mich. 306, 309, we said:

"For many years our court has adhered to the rule that a court of equity has the power to compel the specific performance of a parol contract to convey land which contract has been fully performed on the part of the vendee."

It is also the rule that performance of an oral contract need not cover a period as long as that contemplated by the parties to the contract.

In Denevan v. Belter, 232 Mich. 664, we held (syllabus):

"Where plaintiffs fulfilled every obligation under their oral contract, such part performance was sufficient to take the case out of the statute of frauds, although because of the death of the other party, their services were required for only a few weeks."

It is further urged by defendants that the written agreement of April 13, 1939, terminated and supplanted the oral agreement and that if plaintiff is entitled to any damages it is by virtue of the written agreement which can only be recovered in a law action. The trial court held that such written agreement merely supplemented the verbal agreement so as to provide for the living and comfort of plaintiff in a house she would select instead of remaining at defendant's home. We have examined the record carefully and fail to find any competent evidence indicating that the written agreement supplanted the oral agreement.

Plaintiff urges that the chancery court has authority to award a money judgment in lieu of a decree for specific performance.

In the case of Van Camp v. Van Camp, cited above, the plaintiff asked for specific performance of a partly performed oral contract to convey a farm or for money relief. The court said (p. 695):

"Defendants also urge that a money judgment should not have been rendered. In the case at bar, plaintiff's bill of complaint prayed for specific performance of the oral agreement or the alternate remedy of a lien upon the property for such damages as might be found due. It is a well-established rule that a court of equity is the proper forum to enforce the kind of oral contract plaintiff alleged in his bill of complaint. Carmichael v.Carmichael, 72 Mich. 76 (1 L.R.A. 596, 16 Am. St. Rep. 528); and 66 A.L.R. 1439, and a court of equity, having rightfully assumed jurisdiction, may grant appropriate relief. In the case at bar, the trial judge concluded that a money judgment was the most satisfactory manner of settling the affairs of the litigants. We are in accord with the determination of the trial court.

"In Chantland v. Sherman, 148 Iowa, 352 (125 N.W. 871), the court said:

"`The situation is somewhat novel, but courts of equity are not bound to give any stereotyped form of relief. They readily adapt the relief to the peculiar facts of the case, and their sole concern is that the decree entered shall effectuate justice.'

"Defendants next urge that plaintiff was not entitled to a lien upon the premises. It appears that in 1937 defendant Frances Van Camp conveyed the premises to her three children, defendants herein, the only consideration for such conveyance being love and affection. Moreover, she attempted to evict plaintiff. Under such circumstances the chancery court did not exceed its powers in fastening a lien upon the premises to secure plaintiff's claim and to prevent defendant Frances Van Camp from committing a fraud upon plaintiff."

We have repeatedly held that the specific enforcement of an oral contract is not a matter of strict legal right, it rests in the sound discretion of the court. In our opinion the facts and circumstances in this case justify a decree for specific performance. The decree of the trial court should be affirmed, with costs to plaintiff.

BUSHNELL, J., concurred with SHARPE, J.