Ward v. Griswold

149 N.W.2d 474, 6 Mich. App. 458, 1967 Mich. App. LEXIS 701

• Court: Michigan Court of Appeals
• Decided: April 13, 1967
• Docket: Docket No. 202
• Status: Published

Opinion

T. G. Kavanagh, P. J.

Juanita Ward, plaintiff herein, claimed a contract with the decedent, Riley Ruby, to compensate her for her services, irrespective of the value thereof,. by conveying to her his entire estate.

Prom a disallowance of her claim in probate court on June 22, 1962, plaintiff took the cause into the circuit court for Tuscola county where it was tried to a jury.

After plaintiff rested, defendant moved for a directed verdict. The trial court reserved its decision on the motion, informing both counsel that the matter would be submitted to the jury so that if an appeal were to result in a reversal, counsel would not have to retry the matter. This motion was renewed at the close of proofs.

The jury retired to consider a single written question, which was, “Has Juanita Ward proved by a fair preponderance of the evidence and the inferences to he. drawn therefrom that there was a mutual understanding that Mrs. Ward was to have Mr. Ruby’s estate for taking care of him?”

After the jury returned with an affirmative answer to this question, defendant moved for a judgment' non obstante veredicto. The trial court granted this motion and plaintiff appeals.

In reviewing a judgment for defendant notwithstanding verdict for plaintiff we must view all the testimony in the light most favorable to the plaintiff. Jones v. Michigan Racing Assoc. (1956), 346 Mich 648; Grauberger v. O’Donnell (1956), 347 Mich 201; Higdon v. Carlebach (1957), 348 Mich 363; Kroll v. Katz (1965), 374 Mich 364. Such a review here still leads us to a result which is not favorable to the plaintiff.

The unfortunate wording of the question submitted to the jury lends confusion to the case. “A mutual understanding that Mrs. Ward was to have Mr. Ruby’s estate for taking care of him,” can have meaning only as “was there a contract whereby Mr.- Ruby agreed to leave his entire estate to Mrs. Ward' if she took care of him.” See Moyer v. Hafner (1935), 272 Mich 52.

The “understanding” of a future contingency whether mutual or not is not enforceable absent agreement on a quid pro quo. In the case of Applebaum v. Wechsler (1957), 350 Mich 636, the court said at p 642:

• ’“We agree with the appellant that the law must scrutinize closely and with great caution oral contracts to leave to another, upon the promisor’s death, the estate of the latter. There have been, however, many cases involving such agreements and- the decisions are clear that the contract will not be defeated, if genuine, by the informal circumstances of its making. What we require is an actual agreement, a contract, a meeting of the mind's, not a mere intention.”

Thus, if Mr. Buby intended to leave his estate to Mrs. Ward as a reward for her service, even if she performed the service with knowledge of his intention, unless it can be established that he agreed or promised to do so and she did the work relying on the promise there can be no' recovery. See In re Estate of Donley (1966), 3 Mich App 458.

We then must sift the evidence to find this promise.

We find evidence that she performed service. We find evidence that Mr. Buby appreciated it and expected to leave his estate to her. We find no evidence that he agreed to do so.

This evidence was insufficient to take plaintiff’s claim to the jury on the only grounds on which she relied and the trial court did not err therefore in entering a judgment for defendant non obstante veredicto. See In re Spillette Estate (1958), 352 Mich 12.

Accordingly, the judgment below is affirmed. Appellee may tax costs.

J. H. Gillis and McGregor, JJ., concurred.