Darby v. Monroe Bank & Trust

Michigan Court of Appeals

Darby v. Monroe Bank & Trust

185 N.W.2d 925, 30 Mich. App. 289, 1971 Mich. App. LEXIS 2226

CourtMichigan Court of Appeals

DecidedJanuary 29, 1971

DocketDocket 9229

StatusPublished

Cited by1 cases

This text of 185 N.W.2d 925 (Darby v. Monroe Bank & Trust) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Darby v. Monroe Bank & Trust, 185 N.W.2d 925, 30 Mich. App. 289, 1971 Mich. App. LEXIS 2226 (Mich. Ct. App. 1971).

Pincite

Opinion

Per Curiam.

Plaintiff sued for specific performance of an oral agreement to make a will devising real estate to the plaintiff, alleging that snch an agreement was made in consideration of her living on the premises with appellant’s decedent and caring for him. The trial judge found that there was such an agreement and granted the relief prayed.

Appellant contends that there was insufficient evidence to warrant the trial judge’s finding. Findings of fact were made by the trial judge which reflect a meticulous examination of the conflicting-testimony, viewed with the requirement that the proponent of such claims bears a particularly heavy burden of proof. Teason v. Miles (1962), 368 Mich 414. The record discloses testimony, which the trial judge expressly found to be credible, tending to prove a mutual and certain agreement, performed by the plaintiff.

The findings of fact are dispositive under Q-CR 1963, 517.1, not being clearly erroneous, and supporting the conclusion drawn therefrom by the trial judge. McDaniels v. Schroeder (1968), 9 Mich App 444; Woods v. Johnson (1934), 266 Mich 172.

Appellant also contends that the trial court erred in allowing plaintiff to file an amended complaint. The trial court considered appellant’s objection, withheld immediate ruling and then allowed the amendment after proofs were closed, finding that it conformed to the proofs.

*291 At pretrial, the court had allowed 30 days for amendment and the amended complaint was prepared within that time. It was not filed or served on appellant until a week prior to trial, plaintiff’s attorney alleging that it was inadvertently mislaid in his office. No request for continuance was made by appellant under GCB 1963, 118.3, and it does not appear that appellant was prejudiced by the amendment.

We find that the trial judge properly acted within his discretion. Grant v. National Manufacturer & Plating Co. (1932), 258 Mich 453.

Affirmed. Costs to appellee.

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Per Curiam.

Plaintiff sued for specific performance of an oral agreement to make a will devising real estate to the plaintiff, alleging that snch an agreement was made in consideration of her living on the premises with appellant’s decedent and caring for him. The trial judge found that there was such an agreement and granted the relief prayed.

Appellant contends that there was insufficient evidence to warrant the trial judge’s finding. Findings of fact were made by the trial judge which reflect a meticulous examination of the conflicting-testimony, viewed with the requirement that the proponent of such claims bears a particularly heavy burden of proof. Teason v. Miles (1962), 368 Mich 414. The record discloses testimony, which the trial judge expressly found to be credible, tending to prove a mutual and certain agreement, performed by the plaintiff.

The findings of fact are dispositive under Q-CR 1963, 517.1, not being clearly erroneous, and supporting the conclusion drawn therefrom by the trial judge. McDaniels v. Schroeder (1968), 9 Mich App 444; Woods v. Johnson (1934), 266 Mich 172.

Appellant also contends that the trial court erred in allowing plaintiff to file an amended complaint. The trial court considered appellant’s objection, withheld immediate ruling and then allowed the amendment after proofs were closed, finding that it conformed to the proofs.

*291 At pretrial, the court had allowed 30 days for amendment and the amended complaint was prepared within that time. It was not filed or served on appellant until a week prior to trial, plaintiff’s attorney alleging that it was inadvertently mislaid in his office. No request for continuance was made by appellant under GCB 1963, 118.3, and it does not appear that appellant was prejudiced by the amendment.

We find that the trial judge properly acted within his discretion. Grant v. National Manufacturer & Plating Co. (1932), 258 Mich 453.

Affirmed. Costs to appellee.

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Bluebook (online)

185 N.W.2d 925, 30 Mich. App. 289, 1971 Mich. App. LEXIS 2226, Counsel Stack Legal Research, https://law.counselstack.com/opinion/darby-v-monroe-bank-trust-michctapp-1971.

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