McInerney v. Detroit Trust Co.

• Decision Date: 01 March 1937
• Docket Number: No. 59.,59.
• Citation: 279 Mich. 42,271 N.W. 545
• Parties: McINERNEY v. DETROIT TRUST CO.
• Court: Michigan Supreme Court

279 Mich. 42

271 N.W. 545

McINERNEY

v.DETROIT TRUST CO.

No. 59.

Supreme Court of Michigan.

March 1, 1937.

Proceedings for the allowance of the claim of Leo J. McInerney against the Detroit Trust Company, administrator with the will annexed of the estate of John J. Faltis, deceased. Judgment disallowing the claim, and claimant appealed in nature of a writ of error.

Affirmed. Appeal from Circuit Court, Wayne County; Herman Dehnke, Judge.

Argued before the Entire Bench.

Neal Fitzgerald, of Detroit, for appellant.

Harry Cohen, of Detroit (John Sklar, of Detroit, of counsel), for appellee.

POTTER, Justice.

Plaintiff presented a claim against the estate of John J. Faltis, deceased, for 276 days' services, claimed to have been rendered from May 1, 1912, to February 1, 1913, at $5 a day, a total of $1,380. This claim was heard before commissioners on claims who, November 268 1935, disallowed it. Plaintiff appealed to the circuit court, where the claim was again disallowed. The case comes here on appeal in the nature of writ of error.

No written objections to the claim were filed in the circuit court. Counsel for contestant claimed there was no thought of payment on the part of the parties at the time the services were rendered; plaintiff was not a proper party, the services were rendered when he was a child 14 years of age; the benefit of the statute of limitations, and other things. At the conclusion of plaintiff's testimony, the trial court found for the estate.

The record shows that John Faltis, when taken sick, went to the home of his mother, and plaintiff went over to his grandmother's house and assisted her in taking care of him. Whether plaintiff was paid by his grandmother or not for the services rendered does not appear. John Faltis and his mother comprised the household. A witness testified that, after decedent was up around, he was down at Notre Dame, where plaintiff was attending school, and there said he intended to remember plaintiff for his services in his will. There is no testimony he mentioned any contractual relations between him and plaintiff. Plaintiff's wife testified decedent said to her prior to her marriage, ‘You marry Leo and I am going to see you are taken care of.’ This falls far short of proving any contract between the parties whereby deceased was to pay for the services rendered by this child in assisting his grandmother in taking care of him. Another witness says Mr. Faltis said he would remember Leo for the services rendered. Another said Mr. Faltis said he would make provision in his will. Deceased at one time made a will which gave plaintiff $1,000. This will was revoked. So far as the record here is involved, decedent had a right to revoke it.

In order for plaintiff to recover, he must establish contractual relations with the deceased.

The essential elements of a contract are parties competent to contract, a proper subject matter, a legal consideration, mutuality of agreement, and mutuality of obligation.

Blackstone says a contract is an agreement, upon a sufficient consideration, to do or not to do a particular thing.

Contracts are divided into express contracts and implied contracts. Plaintiff claims there was an express contract entered into between him and the deceased.

An express contract may be defined as one in which the terms were openly uttered and avowed at the time of the making. 2 Blackstone's Commentaries, p. 442; 1 Parson on Contracts, p. 4; 2 Kent's Commentaries, p. 450.

‘An express contract is one where the intention of the parties and the terms of the agreement are declared or expressed by the parties, in writing or orally, at the time it is entered into.’ 13 C.J. 240.

There is no evidence before us that an express contract was made between the parties, no proof of any agreement made between them before or at the time the services were rendered.

Plaintiff was 14 years old. He says he entered Notre Dame Preparatory School in January, 1913, and, if so, he was probably not caring for his uncle in Detroit at the same time.

‘This class of claims should not be encouraged by the courts. Indeed, it is the duty of courts to protect decedent estates from them.’ Wright v. Estate of Senn, 85 Mich. 191, 48 N.W. 545, 547.

‘We have had frequent occasion to deal with cases of this kind, and it has often been said that it is the duty of courts to protect decedents' estates from claims of the character of this.’ Decker v. Kanous' Estate, 129 Mich. 146, 88 N.W. 398, 399;Hartle v. Keefer's Estate, 260 Mich. 188, 244 N.W. 443.

‘When the family relation exists, much which is done for and furnished to a member of the family by another or by other members is presumed to be gratuitously done or furnished. It is the relation and the presumption arising therefrom which is held to negative the existence of an implied contract to pay for what is accepted.’ Weessies v. Van Dyke's Estate, 159 Mich. 180, 123 N.W. 608, 610.

See, also, 18 Cyc. 412; 24 C.J. 281.

The most that may be said of the testimony is that it has a tendency to show admissions upon the part of decedent in his lifetime, made long after the services were rendered, that he had an intention to reward plaintiff by making provision for him in his will. But his intention was testamentary in character, subject to revocation, and there was no outstanding will at the time of decedent's death giving plaintiff anything.

‘The presumption is that services of the nature claimed, rendered in the * * * To establish this claim of an implied * * * To establish this claim of an inplied contract for extra care and attendance, the service must be proven, and there must be testimony tending to show an agreement, assented to by both parties, binding in law and requiring compensation. The import of the testimony relied on is gratuitous expressions of intention to compensate Peter and his family for this kindness during the years the father lived with them. This case is within the rules announced in Decker v. Kanous' Estate, 129 Mich. 146, 88 N.W. 398;Luizzi v. Brady's Estate, 140 Mich. 73, 103 N.W. 574;In re Colburn's Estate, 153 Mich. 206, 116 N.W. 986 [18 L.R.A.(N.S.) 149, 126 Am.St.Rep. 479] and cases there cited.’ In re De Haan's Estate, 169 Mich. 146, 134 N.W. 983, 985.

In Vandecar v. Nowland's Estate, 188 Mich. 429, 154 N.W. 137, 139, there was abundant testimony of statements made by the deceased in his lifetime that he intended the claimant and his wife, or both, should have the farm at his death. The court said:

‘A careful consideration of which [the testimony] constrains us to agree with the trial court that claimant has not, under the circumstances of this case, overcome the presumption that such services rendered by a member of deceased's family or a closely associated relative are gratuitous where no express contract is shown, nor against such presumption established an implied contract, and that what is shown to have been said by deceased as to the disposition of this property goes no further than a declaration of testamentary intent.

‘It is well-settled law that:

“Particularly strong and convincing proof is required where the claim is stale, or where the services extend over a considerable period and no demand for compensation was ever made during decedent's lifetime.' * * *

‘This is of that class of claims in which it is held the dury of the court to require clear and substantial proof before leaving it to a jury to speculate as to the existence of the contract necessary to support them.’ ‘The courts regard with suspicion and disfavor claims brought against a decedent's estate for personal services rendered by relatives, especially where the latter are members of his immediate family or household, as the presumption is that such services, between persons occupying such relations, are intended to be gratuitous.’ Fletcher v. Fletcher, 214 Mich. 12, 182 N.W. 1, 2.

‘The law will not associate with the discharge of a purely filial duty an implied obligation to pay for the same. To support a recovery therefor an express contract must be clearly shown.’ Wright v. Estate of Senn, 85 Mich. 191, 48 N.W. 545, 547.

‘Services rendered by a member of a household are presumed to...