Morten v. Zevalkink

• Decision Date: 06 April 1943
• Docket Number: No. 33.,33.
• Citation: 8 N.W.2d 642,304 Mich. 572
• Parties: MORTEN v. ZEVALKINK et al.
• Court: Michigan Supreme Court

304 Mich. 572

8 N.W.2d 642

MORTEN

v.ZEVALKINK et al.

No. 33.

Supreme Court of Michigan.

April 6, 1943.

Suit by Josephine A. Morten against Barend Zevalkink, Annie Buford Zevalkink, John Zevalkink, Columbian Storage & Transfer Company, and Michigan Messengers, Inc., for specific performance, injunction, and other relief. From a decree for plaintiff, the defendants appeal.

Reversed and decree entered dismissing plaintiff's bill without prejudice to any right to obtain relief by action at law.

SHARPE and BUSHNELL, JJ., dissenting.Appeal from Circuit Court, Kent County, in Chancery; William B. brown, judge.

Before the Entire Bench, except STARR, J.

Uhl, Bryant, Snow & Slawson and Irving H. Smith, all of Grand Rapids, for defendants and appellants.

Starr, McLaughlin & Starr, of Grand Rapids, for plaintiff and appellee.

NORTH, Justice.

The main relief sought by plaintiff's bill of complaint in the instant case is specific performance, although incidentally she seeks injunctive relief and relief by way of cancellation. On this appeal by defendants we hear the case de novo. Upon such consideration I am in accord with the conclusion of Mr. Justice WIEST that the bill of complaint should be dismissed without prejudice to plaintiff's right to institute an action at law.

In the opinions of Justices WIEST and SHARPE the factual background of the case appears; and the record as a whole sustains the following conclusions of fact and law. The original contract upon which plaintiff relies was an oral contract. There is no claim that this oral contract was fully performed by either party, nor do the facts justify a holding that it was partially performed by plaintiff to such an extent as to justify an equity court in decreeing performance by defendant Barend Zevalkink. It is true that in some cases specific performance of somewhat similar contracts has been decreed where, as in the instant case, full performance was prevented by one of the parties and there had been substantial performance by the other party. Guzorek v. Williams, 300 Mich. 633, 2 N.W.2d 796. But in the instant case there has not been anything like such a degree of performance by plaintiff as would justify a court in decreeing specific performance by defendant Barend Zevalkink.

‘In proceedings for the specific performance of an oral contract for the conveyance of land, the acts of part performance by plaintiffs, permitted by defendant as though accepting the void contract as valid, must be to an extent and of a kind to create such strong equities in plaintiffs' favor that courts of equity should not permit the statute of frauds to be used as an instrument of fraud.’ (Syllabus) Harrison v. Eassom, 208 Mich. 685, 176 N.W. 460. Under the facts in this case there can be no mutuality of remedy in the nature of specific performance (Harmon v. Muirhead, 247 Mich. 614, 226 N.W. 713); and admittedly conditions have come about which render specific performance quite impossible. See Buck v. Smith, 29 Mich. 166, 18 Am.Rep. 84.

Insofar as the oral contract upon which plaintiff relies involves an alleged interest in real estate, it is void under the circumstances of this case. 3 Comp.Laws 1929, § 13413 (Stat.Ann. § 26.908); Sutton v. Rowley, 44 Mich. 112, 6 N.W. 216;Jenkins v. Jenkins' Estate, 241 Mich. 39, 216 N.W. 384. While perhaps not of material importance, it may also be noted that Barend Zevalkink's alleged agreement with plaintiff not to remarry is contrary to public policy and generally such agreements are void. 35 Am.Jur. p. 354.

So far as the oral contract is concerned, it follows that plaintiff is not entitled to specific performance; nor, under the circumstances, would she be entitled to incidental relief in the way of injunction or cancellation. Under the alleged oral contract no issue was presented in consequence of which the equity court could take jurisdiction or grant any relief; and therefore as to the alleged oral contract the suit in equity should have been dismissed.

Insofar as the written contract is concerned, plaintiff's sole remedy accruing from the alleged breach of such contract is in an action at law, wherein defendant would have a right to trial by jury. It follows that under this record neither phase of plaintiff's cause of action gave the equity court jurisdiction; and a decree should have been entered dismissing the bill of complaint. A decree dismissing the bill will be entered in this court without prejudice to plaintiff's right to obtain such relief, if any, as she can establish she is entitled to be adjudged in a proceedings on the law side of the court. Appellants will have costs of both courts.

BOYLES, C. J., and CHANDLER and BUTZEL, JJ., concurred with NORTH, J.

WIEST, Justice (for reversal).

In this opinion the defendant referred to is Barend Zevalkink.

I am of opinion the bill should be dismissed without prejudice to the right of plaintiff to bring an action at law to recover damages, if any, for breach of contract.

The bill and the proofs presented issues triable only at law and not in equity and the trial court could not award damages for breach of contract as in an action at law. See Reith v. University Housing Corp., 247 Mich. 104, 225 N.W. 528. There may be instances where, under a proper bill for specific performance of a contract, equity may require a money award but this can never be the case when the bill states, and the proofs show, solely, if anything, an action at law wherein defendant would have right to a trial, by jury, of the issues of fact. At the time the bill was filed plaintiff was about 43 years of age, had been married and divorced and had two sons, 14 and 16 years of age. Defendant Barend Zevalkink was formerly her stepfather and by court proceedings in Missouri, October 10, 1928, under petition of her mother and stepfather, was decreed to be their child, but retained the name of Josephine Audrain Morten. By deed of adoption, executed in Missouri, November 30, 1928, defendant adopted plaintiff, then 32 years old, ‘as and for his child and heir as fully as he is by law empowered to do,’ and agreed ‘to support, maintain and bestow upon’ plaintiff ‘the care and treatment due from a parent to a child.’

At the age of 25 plaintiff was married and went to live with her husband in St. Louis, Missouri. Plaintiff's mother died in November, 1938. Plaintiff attended the funeral and remained at the home for about a week. During that period she claims defendant requested her to give up her home in St. Louis and come, with her two sons, and live with him. She claims he agreed and represented that if plaintiff would come to live with him, make a home for him and care for him during his remaining days he would never remarry but would support, maintain, take care of and provide a home for plaintiff and her two sons throughout plaintiff's full lifetime, in such a manner that plaintiff and her two sons would never want for anything; pay for the education of plaintiff's two sons, including a college education; never revoke or alter his will previously executed, which her father then informed plaintiff provided for the devise and bequest of all of his property, both real and personal, to plaintiff and her two sons; make payable to plaintiff certain existing policies of life insurance amounting to $50,000, in order to protect and provide for plaintiff and her two sons and that sufficient funds would be available for the inheritance tax on his estate at the time of his death; keep in force certain other policies of insurance on his life, amounting to $13,000, which policies her father informed plaintiff were then in force and payable to plaintiff, and that he would never make a change of beneficiaries in connection with said policies; that she then thought her father was the owner of property, real and personal, of the value of upward of $200,000, and still has that belief; that she informed her father she accepted his proposition.

Plaintiff had an equity in some real estate in Missouri, subject to two mortgages, one of which was under foreclosure, and defendant promised to finance the same for her; that in order to comply with his request to live in his home she had to dispose of some of her household furniture at a sacrifice. Defendant moved a truckload of plaintiff's furniture from Missouri to Grand Rapids, and plaintiff and her sons went there to live.

In April, 1939, defendant remarried and when, after a short honeymoon, he brought his wife to his home, the new wife was dissatisfied with the presence of plaintiff and her two sons in the home. Plaintiff and defendant talked matters over and went to an attorney, had a writing prepared, exhibit 9, which they signed, under which defendant agreed to pay plaintiff $60 on the first day of each and every month thereafter while the contract continued in force. Plaintiff established another home, together with her sons, and defendant paid $50 under the contract and then notified plaintiff he would not pay any more. Plaintiff then filed the bill herein to have specific performance of the contract she alleges and also damages for his breach of the contract. Plaintiff also claims that defendant agreed to pay the balance due on her automobile, and also an automobile belonging to one of her sons, and he did not do so.

The circuit judge entered in favor of plaintiff a ‘decree and judgment’, and gave her relief on the judgment against all defendants as though under a judgment creditors' bill. The court found a valid verbal contract was made and that the written agreement modified the oral agreement only to the extent that it stipulated and provided the exact sum which defendant was required to pay plaintiff each month thereafter in connection with support and maintenance.

We now quote from the decree:

‘Therefore, in lieu of a decree for specific performance and on motion of James A. Starr, one of the attorneys for plaintiff,

‘It is ordered, adjudged and decreed that the...