Kimball v. Batley

Moore, J.

(dissenting). Complainant, on February 2, 1909, filed a. bill for the specific performance of a contract which he claimed was made between himself and Stewart Scoville, deceased. The cause was heard and proofs taken in open court on the 2d day of August, 1910.

It is complainant’s claim that while he was living in the city of Jackson, working at his trade as carpenter, Stewart Scoville, his grandfather, a man past 80 years of *552age, came to his home and proposed that if he, Homer Kimball, would move with his family upon a certain 40 acres of land in the township of White Oak, Ingham county, more fully described in the bill of complaint, and would there maintain a home and care for said Stewart Scoville for the balance of his life, he (Scoville) would convey to him (Kimball) the property in question. He claims he accepted this offer and fully performed it upon his part. Defendants deny, as a matter of fact, that any such arrangement was made. They aver that, as a matter of law, if any parol agreement was made to convey real estate, it was void. It is also defendants’ contention that, if any such arrangement was made, there was not a sufficient consideration, and a strict enforcement would be inequitable. The trial judge made a decree granting the prayer of the bill of complaint. The case is brought here by appeal.

Counsel for defendants contend as follows:

“ (1) That the alleged oral agreement to convey to complainant the 40 acres of land in question has not been established by clear and convincing evidence as is required by law.
‘‘(2) That by reason of the unexpected death of the deceased, but shortly after complainant moved onto the farm, and because of the fact that complainant did substantially nothing in pursuance to said alleged agreement, it is unconscionable and inequitable to decree specific performance of the same.
“(3) That complainant is himself in default with respect to the alleged contract, and that specific performance of the same cannot therefore be decreed.”

1. A careful reading of the record shows that Mr. Stewart Scoville, the grandfather, was a widower and was not satisfied with the home he then had. He possessed property appraised at upwards of $9,000. The 40 acres of land he purchased cost $1,950. We have read with care the argument of counsel as to the degree of proof required to establish the contract which is sought to be enforced here. We have also noticed what is said about the will of the *553deceased negativing the existence of the contract, and also what is said about the conduct of complainant and the conversation of the parties at the probate office at the time of reading the will, and the claim that complainant did not at that time claim the existence of any such contract. And the further argument that complainant permitted the real estate in question to be appraised as a part of the assets of the estate and negotiated for its purchase. There was hardly an important issue in the case in which there was not a sharp conflict in the testimony. It would profit no one to recite the testimony given in the case in detail. The complainant offered 26 witnesses in his behalf. Their testimony tended very strongly to make the case claimed by the complainant.

The defendant had five witnesses, all of whom, except one, had an interest in the litigation. 36 Cyc., at page 674, reads in part as follows:

“ Care of Aged Person. A contract to care for, give personal attention to, and make a home for an aged person, whether a relative or a stranger, in return for a promise of a testamentary gift or devise, is a common form of such contract. If the performance of the contract involved the abandonment by plaintiff of his previous business or home, his equity is so much the stronger ”— citing many cases.
In the first note occurs the following:
“ There are some services that are incapable of valuation in money; as to these the law permits individuals to make their own contracts. Old age is naturally repulsive. The hair grows gray, the eyes sunken, the skin wrinkled and brown, the flesh shrunken, the figure bent, the limbs weak and trembling, the will feeble, the tongue garrulous, the mouth toothless, the mind wandering, the habits careless and filthy, accompanied oftentimes with loathsome diseases needing all the care and attention of childhood without its purity, loveliness, and affection as a compensation. To meet this condition of life a kind providence has ordinarily provided the ties of blood and marriage and parental, fraternal, and filial affection with their reciprocal duties and obligations of mutual care and support, etc. *554Bryson v. McShane, 48 W. Va. 126, 130 (35 S. E. 848, 49 L. R. A. 527); Best v. Gralapp, 69 Neb. 811 (96 N. W. 641, 99 N. W. 837); Vreeland v. Vreeland, 53 N. J. Eq. 887 (32 Atl. 3). It is not essential, however, that the performance should involve a pecuniary sacrifice on plaintiff’s part; ‘the fact that he was previously in humble circumstances, so that the position was in itself advantageous, is not sufficient to warrant denial of relief. Berg v. Moreau, 199 Mo. 416, 438 (97 S. W. 901 [9 L. R. A. (N„ S.) 157]).”

At page 676 occurs the following:

“ Duration of Services. It is immaterial that the services, on account of the death of the promisor, lasted only a few months instead of many years. But an agreement, to make a testamentary gift in consideration of services, will not be enforced until the services have been fully performed.”

The questions involved are not new in this State. See Lamb v. Hinman, 46 Mich. 112 (6 N. W. 675, 8 N. W. 709); Welch v. Whelpley, 62 Mich. 15 (28 N. W. 744, 4 Am. St. Rep. 810); Pike v. Pike, 121 Mich. 170 (80 N. W. 5, 80 Am. St. Rep. 488), and the many cases there cited; Ruch v. Ruch, 159 Mich. 231 (124 N. W. 52); Boot v. Snyder, 161 Mich. 200 (126 N. W. 206), and the many cases there cited. If we apply the principles of law to the testimony in this case, we think the trial court was quite right in finding that complainant had established his case.

The decree should be affirmed, with costs.