[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
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. 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 plaintiff recover the sum of $3,000 from defendant Barend Zevalkink and a personal decree and judgment is hereby rendered in favor of plaintiff and against defendant Barend Zevalkink for such sum representing the damages which plaintiff has sustained by virtue of the loss of the equity in her former home located in St. Louis, Missouri.
"It is ordered, adjudged and decreed that the plaintiff recover the further sum of $1,200 from defendant Barend Zevalkink and a personal decree and
judgment is hereby rendered in favor of plaintiff and against Defendant Barend Zevalkink for such further sum representing the damage which plaintiff has sustained in disposing of certain articles of her household furniture, effects and personal property at defendant's direction when plaintiff moved to the home of defendant. * * *
"It is further ordered, adjudged and decreed that the plaintiff recover the further sum of $7,484.16 from defendant Barend Zevalkink and a personal decree and judgment is hereby rendered in favor of plaintiff and against defendant Barend Zevalkink for such further sum, representing the present worth of $13,000 in face amount of life insurance upon the life of the defendant Barend Zevalkink due 14.74 years hence, which period constitutes the life expectancy of defendant Barend Zevalkink.
"It is further ordered, adjudged and decreed that the plaintiff recover the further sum of $7,749.17 from defendant Barend Zevalkink and a personal decree and judgment is hereby rendered in favor of the plaintiff and against defendant Barend Zevalkink for such further sum, representing the present worth of the sums which plaintiff would have received from such defendant under the terms of the written contract between them dated April 13, 1939, Exhibit 9, had such defendant fulfilled his obligations under such written contract during the period of his life expectancy, less the sum of $50 actually paid to plaintiff by him on or about May 1, 1939, in connection with such written contract.
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
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. 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 plaintiff recover the sum of $3,000 from defendant Barend Zevalkink and a personal decree and judgment is hereby rendered in favor of plaintiff and against defendant Barend Zevalkink for such sum representing the damages which plaintiff has sustained by virtue of the loss of the equity in her former home located in St. Louis, Missouri.
"It is ordered, adjudged and decreed that the plaintiff recover the further sum of $1,200 from defendant Barend Zevalkink and a personal decree and
judgment is hereby rendered in favor of plaintiff and against Defendant Barend Zevalkink for such further sum representing the damage which plaintiff has sustained in disposing of certain articles of her household furniture, effects and personal property at defendant's direction when plaintiff moved to the home of defendant. * * *
"It is further ordered, adjudged and decreed that the plaintiff recover the further sum of $7,484.16 from defendant Barend Zevalkink and a personal decree and judgment is hereby rendered in favor of plaintiff and against defendant Barend Zevalkink for such further sum, representing the present worth of $13,000 in face amount of life insurance upon the life of the defendant Barend Zevalkink due 14.74 years hence, which period constitutes the life expectancy of defendant Barend Zevalkink.
"It is further ordered, adjudged and decreed that the plaintiff recover the further sum of $7,749.17 from defendant Barend Zevalkink and a personal decree and judgment is hereby rendered in favor of the plaintiff and against defendant Barend Zevalkink for such further sum, representing the present worth of the sums which plaintiff would have received from such defendant under the terms of the written contract between them dated April 13, 1939, Exhibit 9, had such defendant fulfilled his obligations under such written contract during the period of his life expectancy, less the sum of $50 actually paid to plaintiff by him on or about May 1, 1939, in connection with such written contract.
"It is further ordered, adjudged and decreed that the plaintiff recover the further sum of $885 from defendant Barend Zevalkink and a personal decree and judgment is hereby rendered in favor of plaintiff and against defendant Barend Zevalkink for such further sum which is hereby determined to be the present cash value of the 10 shares of stock of The Columbian Storage Transfer Company which were transferred and assigned to defendant Barend Zevalkink by plaintiff on or about April 13, 1939, as
a part of the consideration for the execution of Exhibit 9 by such defendant.
"It is further ordered, adjudged and decreed that the plaintiff recover the further sum of $8,635.57 from defendant Barend Zevalkink and a personal decree and judgment is hereby rendered in favor of plaintiff and against defendant Barend Zevalkink for such further sum, representing the present worth of the sum of $15,000 due 14.74 years hence, which period constitutes the life expectancy of defendant Barend Zevalkink and which sum of $15,000 is hereby determined to be the present cash value of the house and lot of defendant Barend Zevalkink located at 1555 Pontiac Road, S.E., in the city of Grand Rapids, Michigan.
"It is further ordered, adjudged and decreed that all conveyances, transfers, assignments or gifts of real or personal property made by defendant Barend Zevalkink to defendant Annie Buford Zevalkink or to any of the other defendants herein are hereby set aside and declared null and void and without force and effect, and that said defendant Annie Buford Zevalkink and each of the other said defendants who may have received any of the property of defendant Barend Zevalkink shall forthwith reconvey, retransfer, reassign and redeliver to defendant Barend Zevalkink all of such property, both real and personal, and that in default of their so doing and in lieu thereof, and with the same force and effect, the plaintiff may cause certified copies of this decree to be recorded in the office of the register of deeds for Kent county, Michigan, and for any other counties in which any of such property may be located.
"It is further ordered, adjudged and decreed that to secure payment to her of the several sums of money herein decreed and awarded to her together with interest thereon and the costs of the plaintiff herein to be taxed plaintiff shall have and she is hereby given a lien upon all property, both real and personal, owned by defendant Barend Zevalkink
and also upon all property, both real and personal, which has been heretofore transferred, assigned or conveyed by defendant Barend Zevalkink to defendant Annie Buford Zevalkink or to the joint names of defendants Barend Zevalkink and Annie Buford Zevalkink or to any other defendant herein since November 30, 1938, on or about which date plaintiff and defendant Barend Zevalkink made and entered into the verbal contract mentioned above and that such lien shall continue and remain in full force and effect until said defendant Barend Zevalkink shall have paid all of said several sums to the plaintiff.
"It is further ordered, adjudged and decreed that all sums of money herein awarded to plaintiff and all judgments and decrees herein rendered in favor of plaintiff shall bear interest at the rate of five per cent. per annum from the date hereof until the same shall have been fully paid, and that plaintiff may have execution forthwith for the enforcement and collection of all such moneys and interest thereon, and that until all such sums and interest thereon shall have been fully paid, the defendant Barend Zevalkink is hereby restrained and enjoined from conveying, selling, assigning, giving away, incumbering, devising, bequeathing, or otherwise disposing of or concealing his property, both real and personal, or any part thereof, and from withdrawing from any bank or other depository any moneys, credits or other assets which may be there deposited to his credit or in his name or in which he may have any legal or equitable interest or over which he may have control, and also from withdrawing from any safety deposit box or boxes or other depositories any moneys, stocks, bonds, securities or other assets which he may own or in which he may have any legal or equitable interest or over which he may have control.
"It is further ordered, adjudged and decreed that until all sums due and owing to plaintiff from defendant Barend Zevalkink under the terms and provisions
of this decree have been fully paid the defendants, Annie Buford Zevalkink, John Zevalkink, The Columbian Storage Transfer Company, Michigan Messengers, Inc., and all of the officers, agents, employees and representatives of said two corporations and all of the agents, employees and representatives of Annie Buford Zevalkink, John Zevalkink, and Barend Zevalkink are hereby restrained from conveying, selling, assigning, giving away, incumbering, or otherwise disposing of or concealing any property, money, effects, accounts, stocks, bonds, or other assets in which defendant Barend Zevalkink has any interest, and from withdrawing from any bank or banks any money or moneys which may be there deposited to the credit of defendant Barend Zevalkink or in which he may have any legal or equitable interest, and from withdrawing from any safety deposit boxes or other depositories any money, stocks, bonds, securities, or other assets which defendant Barend Zevalkink may own or in which he may have any legal or equitable interest, and from confederating and conspiring with defendant Barend Zevalkink, and from aiding and assisting him in conveying, selling, assigning, giving away, incumbering, or otherwise disposing of or concealing any property, money, effects, accounts, stocks, bonds, or other assets which defendant Barend Zevalkink may own or in which he may have any interest.
"It is further ordered, adjudged and decreed that until all sums due and owing to plaintiff from defendant Barend Zevalkink under the terms and provisions of this decree have been fully paid that defendant Annie Buford Zevalkink is hereby restrained from conveying, selling, assigning, giving away, incumbering, or otherwise disposing of or concealing any property, real or personal, which defendant Barend Zevalkink has heretofore conveyed, assigned or transferred to her.
"It is further ordered, adjudged and decreed that defendant Barend Zevalkink pay to the plaintiff all
costs which she has incurred and which may hereafter be taxed in this cause and that plaintiff shall have execution therefor."
As said at the start of this opinion, the allegations in the bill, the proofs at the hearing and the decree all relate to an alleged breach of contract, wholly without equity jurisdiction. The so-termed decree is a series of judgments, recoverable, if at all, only in an action at law. Mr. Zevalkink was married to his present wife April 11, 1939. Plaintiff with her two sons went to defendant's home to live on or about December 15, 1938, and left there under the written agreement of April 13, 1939, Exhibit 9, to make her home elsewhere. She was, therefore, at defendant's home about four months.
I cannot join in the precedent my Brother's opinion would establish.
Relief, if any, against the defendants other than Barend Zevalkink must await judgment in the action at law and under a judgment creditors' bill.
BOYLES, C.J., and CHANDLER and BUTZEL, JJ., concurred with WIEST, J.