O'Conner v. Bamm, 36

• Decision Date: 05 January 1953
• Docket Number: No. 36,36
• Citation: 335 Mich. 438,56 N.W.2d 250
• Parties: O'CONNER v. BAMM et al.
• Court: Michigan Supreme Court

Page 250

56 N.W.2d 250

335 Mich. 438

O'CONNER v. BAMM et al.

No. 36.

Supreme Court of Michigan.

Jan. 5, 1953.

Harold E. Bledsoe, Detroit, for appellant.

John J. Beck, Monroe, for appellees Bamm.

Before the Entire Bench.

ADAMS, Justice.

Prior to March 6, 1946, the plaintiff, Grace O'Conner, and the defendants, Ernest and Marie Bamm, were neighbors living in Monroe county, Michigan. Mrs. O'Conner was a widow some 71 years of age and in poor health. She owned and lived in a home acquired by her and her husband in 1919. Her brother-in-law who lived with her was likewise in poor health and she decided it would be necessary to sell the home both because she was unable to care for it and because she needed money to live.

The Bamms offered to by the home and she asked $3,500. An agreement was finally reached and the sale completed, Mrs. O'Conner conveying the property to the Bamms and they in turn paying to her $1,500 in cash, together with an agreement in writing which read:

'Note

'Monroe, Michigan

'March 6, 1946

'For Value Received, We promise to pay to Mrs. Grace O' Conner, survivor of her deceased husband, Andrew O'Conner, the sum of Twentyfive Dollars ($25.00) per month, without interest, upon sums duly paid, but with interest at the rate of 5% per annum on any delinquent sums for a period of not to exceed sixty (60) months nor to exceed the life of Grace O'Conner;--meaning to promise hereby that if Mrs. O'Conner shall live for 60 months from date, the $25.00 will be paid each of those 60 months, but in event of her death prior to the expiration of said 60 months, all payments and all duty to pay shall expire at her demise, and that at her death no moneys shall be due her nor her estate hereunder, if she shall die within the said five-year period, except any delinquencies, if any, that might exist at her death in the regular schedule of payments.

'This note and undertaking is given and accepted as a part consideration purchase price of property this day bought from her and also upon the consideration that is a part of the purchase price in cash, and also by means of this note; there is also being given her an agreement of support within our home not to exceed the five-year period.

'This instrument is accepted by Grace O'Conner with full understanding of the same.

'Ernest W. Bamm, sgd.

'Marie R. Bamm, sgd.

'I certify that I have read, understand and acknowledged the within instrument with full knowledge of its meaning, and that I have dictated the terms therein myself.

'sgd. Grace O'Conner

'I Witness to All Signatures

'Edgar E. Gorden, sgd.

'Monroe, Michigan.'

Thereafter the Bamms moved into the home with Mrs. O'Conner and the agreement of March 6, 1946, seems to have been performed to the mutual satisfaction of both parties until a few months prior to the expiration of the 5-year period of support therein provided. Up until that time, according to the record, the most friendly relationship existed between the parties, courtesies and kindnesses were exchanged, Mrs. O'Conner was called 'Auntie Grace' by the Bamms, and no complaints were voiced by any of the parties with reference to nonperformance of the contract.

An incident then occurred in the home involving the disciplining of one of the Bamm childen and from then on the parties were at odds and dissatisfaction developed. Sometimes during the winter or spring of 1951 the Bamms turned off the water supply and the heat to the 2 rooms occupied by Mrs. O'Conner. Later, a friend of Mrs. O'Conner attempted to intervene and after some negotiations the Bamms offered to pay the $65 balance due under the terms of the agreement, together with interest and some other money owed her. The money was refused by Mrs. O'Conner who claimed that they still owed interest. Shortly thereafter, the 5-year period of support having expired, eviction proceedings were instituted by the Bamms against Mrs. O'Conner.

This action in chancery was then commenced by Mrs. O'Conner alleging that subsequent to the execution of the written agreement of March 6, 1946, the Bamms had verbally agreed to provide a home for Mrs. O'Conner for so long as she lived, and further alleging a breach of both the written and verbal contracts. The bill of complaint concluded with a prayer for an accounting, setting aside the sale of the home and a stay of the eviction proceedings. Defendants filed an answer alleging performance of the written agreement and denying the existence of the subsequent verbal agreement.

Upon trial, the defendants moved to dismiss the bill of complaint at the conclusion of the plaintiff's testimony and the trial judge granted that motion on condition that the sum of $185.81 be paid by the Bamms to the clerk of the court for the benefit of Mrs. O'Conner. This sum included the balance due under the agreement, payment of a loan made by Mrs. O'Conner to the Bamms, and the balance due on the purchase of certain furniture. Plaintiff appeals from that order.

The bill of complaint does not allege nor does the record show any fraud or intentional wrongdoing on the part of the Bamms.

Plaintiff claims that a second and verbal agreement was reached by the parties providing for her support during her lifetime, that this agreement was based upon additional undertakings performed by the plaintiff, and that such agreement was breached when the Bamms attempted to evict Mrs. O'Conner from the property in the spring of 1951. While these claims are made by the plaintiff in her bill of complaint,...