Adams v. Congdon

48 N.W.2d 469, 259 Wis. 278

• Court: Wisconsin Supreme Court
• Decided: June 15, 1951
• Status: Published

Opinions

Brown, J.

The evidence establishes that in 1941 Miller and his wife came as guests to the religious camp owned and operated by Congdon. In 1948 Congdon incorporated the business and the terms Congdon, the camp, the park, and the association are used interchangeably. Mr. and Mrs. Miller liked the place and took employment there. They were then in their sixties. In the summer of 1942 Mr. Miller became seriously ill and it developed that he had a cancer. Thereafter he did little work. He and his wife had a home in joint tenancy worth $3,000 and some other property, which when Miller died consisted of $6,737.57 cash. The greater part of each year they lived with Dr. Congdon and were treated as though they were members of his family. For reasons which are in dispute Congdon gave Jay Miller the judgment note previously described.

Appellant’s first contention is that the trial court committed error in vacating the cognovit judgment and granting trial on the merits and he submits that Congdon’s petition did not sufficiently disclose a meritorious defense. The motion to vacate was accompanied by Congdon’s proposed, verified answer in which it was alleged that the $5,000 note was signed and delivered as part of an oral agreement made in September, 1942, whereby he promised to maintain and care for Mr. and Mrs. Miller during their lifetime, in return for which Mr. Miller would leave all his property to Congdon; and the note was given as security to the Millers that the agreement by Congdon and the association would be performed. The proposed answer further alleged that the support had been furnished, which operated as payment of the note, but Mr. Miller had willed the property to others and therefore there was a failure of consideration for the note. Congdon also filed an affidavit conforming to sec. 269.465, Stats., that he had stated his case fully to his counsel and had been advised that he had a meritorious defense. We think that a meritorious defense is alleged in sufficient detail to enable the trial court without abuse of discretion to vacate a judgment previously entered without process.

With this point out of the way the issue comes down to the sufficiency of the evidence to sustain the Congdon version of the note as set forth in his answer and the findings of fact by the trial court which conformed to it. Much incompetent evidence was received, subject to appellant’s objections. There was, however, the competent testimony of several disinterested persons that Mr. Miller had said to each of them that he had made an agreement to leave his property to the association and it would take care of him and his wife as long as they lived, and that Congdon had delivered a note to the Millers as security that the support would be furnished. The witnesses were less' explicit on details than could be wished but we consider that this was a matter going to the weight of the testimony in the good judgment of the trial court. We cannot hold that the evidence had so little probative force that the trial court’s findings that there was such an agreement, so secured, must be set aside for lack of sufficient evidence to sustain them. Accordingly, the promise to support having been performed, the obligation of the note, as the trial court found, has been satisfied and the judgment dismissing the action upon it should be affirmed.

Respecting the claim of Congdon and the association against-the Miller estate, the issue again concerns the sufficiency of the evidence. The testimony previously discussed establishes the agreement for the support of Mr. and Mrs. Miller. The agreement was void under the statute of frauds, secs. 240.06, 241.02 (1), and sec. 235.01 (2), Stats. See also Restatement, 1 Contracts, p. 232, sec. 178, p. 254, sec. 193. Specific performance cannot be required and no damages can be recovered for its breach, Rosenthal v. Pleck (1918), 166 Wis. 598, 166 N. W. 445, but the parties who gave value in performance of the void contract may have that value returned to them. Restatement, Restitution, p. 194, sec. 47. The support furnished the Millers was found on sufficient evidence to be worth $5,850 and the claim against the estate was properly allowed in that amount.

The balance of the claim, consisting of cash given Jay Miller' and the payment of his personal bills was disallowed. These went beyond the requirements of support and maintenance. They could not, then, be included in the amount for which restitution is allowed. There was evidence that Miller paid bills and made purchases in behalf of Congdon and the association at different times and the money given him may have been to reimburse him. We are unable to say that the competent evidence in its support of this part of the claim is of such weight that it was error for the learned trial court to conclude that the proof was insufficient. The judgment on the claim should be affirmed.

By the Court. — -Judgments affirmed.