Calhoun v. Calhoun

49 A.D. 520 | N.Y. App. Div. | 1900

McLennan, J.:

The defendant seeks to prevent a recovery in this case upon three grounds:

1. Because the mortgage in suit was executed and delivered without consideration;

2. Because, even if the covenant to support the plaintiff constituted a valid and binding obligation upon the defendant, there was no such breach of the covenant as would entitle the plaintiff to maintain this action, and

3. It is insisted that, in any event, there not having been a total breach of the covenant, the plaintiff is not entitled to recover in this action for future support.

The dealings between the plaintiff and defendant, prior to the time the mortgage in suit was executed, cover a period of a dozen years or more. No books of account of the transaction between them were kept. The plaintiff, at least, was ignorant and unable to> make memoranda or keep accounts, and both seem to be wholly unacquainted with business methods.

In 1875 the defendant became the owner of a farm of fifty-one acres. What it was worth, or its rental value, does not appear. The plaintiff and her family occupied it for years, and practically had the products. Their amount or value is not disclosed by the-evidence. Certain improvements were made, but the cost or extent is not shown. In 1879 the plaintiff’s farm, which she then deeded to the defendant, according to the consideration expressed in the deed, was worth $1,200. That amount, if paid at all, and some part of it concededly was, was paid by the cancellation of an indebtedness which the plaintiff owed to the defendant, and by the payment by him of debts which' she owed to others. The amount of such indebtedness or debts is not ascertainable from the evidence. There is no data from which the inference can be drawn that prior to 1885, the date of the mortgage in suit, the $1,200, the purchase price of the plaintiff’s farm, had been fully paid. The inference that there remained unpaid of the purchase price the value of the mortgage is quite as justifiable.

At the time the mortgage in suit was given everything was apparently harmonious between the parties. No account of their dealings was kept; the earnings of all seem to have gone into the common fund for their mutual benefit. It is apparent that the defendant was the only money-earner and mbneyr-saver of the family, and that he was willing to provide a home for his parents, and to aid in the support of the other children until they could care for themselves, and that the amount thus expended by him he did not expect to be reimbursed for, except by becoming the owner of the farm, free from all claims of the other children, upon the death of the plaintiff.

When the mortgage in suit was executed the defendant obligated himself, and intended so to do, to support the plaintiff during her natural life, and it is immaterial whether he assumed such obligation wholly in payment for the farm which she had conveyed to' him, or 'partly in payment for such conveyance, and partly on account of love and affection and in discharge of the moral obligation which devolved upon him by reason of his relationship to her. Either or both would furnish an adequate consideration to support the mortgage. (Morris v. Ward, 36 N. Y. 587; Loeschigk v. Hatfield, 51 id. 660 ; Spalding v. Hallenbeck, 30 Barb. 292.)

The conclusion is reached that the evidence justified the finding made by the learned referee, that the covenant contained in the mortgage in suit was made upon a good and valuable consideration.

Was there any substantial breach of the covenant contained in the mortgage before this action was begun ?

So far as the evidence discloses, everything continued harmonious between the parties until the winter of 1895. They were then living substantially as they had for ten or fifteen years before, except that Emmett and the defendant were the only ones of the plaintiff’s children who were living with her. The defendant was determined that Emmett should not remain on the farm, and the plaintiff was quite as determined that he should if she did, and apparently this was the issue which occasioned all the trouble which followed. Both parties consulted Mr. Morse, an attorney, and a proposition was made by the defendant that he would purchase a house and lot for the plaintiff in Thurso, and give her certain personal property, substantially the same as she afterwards took with her when she Moved. The plaintiff rejected the proposition, and submitted another through Mr. Morse, in effect that she would accept a certain house which she mentioned, with five or six acres of land adjoining, and the same personal ¡property above referred to, and release the defendant from all claims under the mortgage or otherwise for her support. This proposition was rejected by the defendant, and he stated to Mr. Morse that he would not give her a deed of any house and lot, but that she might move into the house which he had bought if she wanted to.

This was the state of the negotiations between the parties on the 27th day of February, 1895, when they met back of a store in Clayton, in the presence of a Mr. Busho and his wife and the defendant’s brother Joshua, and, as the plaintiff claims, the following conversation took place between herself and the defendant: He, the defendant, wanted to know “how I came across” (the ice); I said, “ afoot; ” he said, “ I have been to Mr. Black’s to-day ; I have seen him and have a house; ” I said, “ what for ? ” He said, “ you have got to move; ” I said, “ I was not going to move; ” he said, “ you will move, and I will move you,” and then he went away. Freeman Busho, one of the persons named by the plaintiff as being present, was called as a witness on her behalf, and testified that he saw the defendant and the plaintiff together at the place in cpxestion, but that he did not hear any conversation like that related by the plaintiff. Mrs. Busho testified that she was present and heard the defendant say to the plaintiff, simply, “ you have got to move, because we cannot live any longer under the same roof.” Joshua, the defendant’s brother, although sworn, was not inquired of in regard to this alleged conversation. The defendant testified that all there was of the conversation between himself and the plaintiff was that he said, “ Well, I have bought the house,” and she, the plaintiff, would not talk, and I said, “ I guess one house can’t hold us, anyway.”

On the evening of that day, February 27, 1895, the parties having returned to their home on the farm, the defendant informed the plaintiff that Emmett could not longer remain on the farm, and that he had rented it to his brother-in-law, Edgar Garnsey, and the quarrel arose which finally resulted in the plaintiff moving into the Thurso house.

The plaintiff’s version of what took place upon the evening in question between herself and the defendant is stated in the most extravagant language, and if the language used by the defendant is correctly stated and his conduct correctly described by the plaintiff, it is clear that she was justified in leaving, and in concluding that it was unsafe for her to remain longer, and that a deliberate and intentional breach of the obligation to support her had been made by tlie defendant.

The plaintiff testified that at the time there were present Joshua Calhoun, Cal Cary and David Wiley, and they each testified that they heard no such conversation, and noticed no such conduct on the part of the defendant as related by the plaintiff. The defendant also, in the most positive terms, denies it, and states in substance that the only trouble which arose was on account of the fact that he informed the plaintiff that Emmett could not longer remain on the farm, and that he had rented it to her son-in-law, Garnsey; that she then declared she would not remain, and insisted that he should provide a place for her to live in Thurso; that he remonstrated with her; offered to build a suitable house for her upon the farm and wished her to live there; that she refused and insisted that she would move to Thurso; that he then' assented, and the arrangement was then made that the plaintiff should move into the house which he had purchased in that village; take with her what household furniture she wished, one cow, one pig, sixteen hens, and such provisions as she desired ; and that, pursuant to the arrangement then made, and at the request of the plaintiff, he moved her into the house, and delivered to her, or permitted her to take with her, the property enumerated.

It is undoubtedly true that the plaintiff would have preferred to remain upon the farm, provided her son Emmett could also remain, but the evidence very clearly shows that she did not wish and. would not consent to remain unless Emmett might be permitted to remain also; and finding that impossible, she voluntarily moved into the house which the defendant had provided for her.

The evidence of certain neighbors called as witnesses strongly corroborates this version of the transaction. They testified that the plaintiff stated to them after she had moved that she had settled Avith the defendant; made an agreement by which she released him from further support, and that she had moved in pursuance of such agreement. It also appears that she herself employed persons to help move her; that she superintended the moving herself; selected the furniture which she wanted, the provisions Avhich she thought she needed, and the favorite cow.

We think the evidence Avholly fails to justify the conclusion that there had been any breach of the covenant on the part of the defendant up to the time Avhen the plaintiff moved into the Thurso house. It is not seriously contended that the verbal agreement under which the plaintiff removed from the farm was effectual for the purpose of relieving the defendant from the further support of the plaintiff, and the evidence clearly shows that the defendant did not so understand or regard it.

In the spring of 1895, after the plaintiff had moved into the ' Thurso house, the defendant went sailing. During his absence the plaintiff made no demand upon him for money, except for a pair of shoes, and he sent her five dollars for that purpose. On his return in the winter of 1896 he drew her a load of hay,-what wood she needed, a quantity of flour, pork, potatoes, beans, tea, sugar and other groceries. In the spring of 1896, before he went sailing, he-drew her some more wood, and left an order with the store for her to trade upon, which she did to the amount of thirty-two dollars. Upon returning again the next winter he furnished her with wood, 100 pounds of pork, two hogs’ heads, potatoes, beans, apples, tea, sugar and other groceries. During all this time the plaintiff resided within less than two miles of the farm where the defendant resided during the winters, saw him frequently, but never spoke to him, and never made any request or demand upon him for either provisions, money or anything else to aid in her support.

The defendant having made substantial provision and contribution to the support of the plaintiff up to the time of the commencement of this action, we are of the opinion that, independent of the question whether such provision and contribution was or was not sufficient to properly and adequately support the plaintiff, and fully, according to the terms of the covenant contained in the mortgage, no breach of such covenant can be declared until the plaintiff has made demand upon the defendant for other or additional support, and he has refused performance, or at least until the defendant is made aware of the necessities and requirements of the plaintiff in that regard.

From the evidence we think it cannot be said that the amount of the provisions furnished by the defendant to the plaintiff, after she moved to the Thurso house, was alone adequate to properly support her, notwithstanding it appears that the portion of the house which she did not require would have rented for fifty dollars per annum; that much of her support might have been raised from the garden, 'and although it appears that during the entire time she was supporting or contributing to the support of her son Emmett; but such inadequacy alone, as we have- seen, is not sufficient to enable-the plaintiff to maintain this action.

We are of the opinion that the evidence wholly fails to justify the conclusion that there was any substantial breach of the covenant contained in the mortgage in suit on the part of the defendant prior to the commencement of this action'; that in order to establish such • breach it is necessary to show either substantially a total failure to support the plaintiff on the part of the defendant, or a demand or request for such support on her part and refusal by him.

Having reached the conclusions above indicated, it is unnecessary to consider the other questions raised by the appeal.

It follows that the judgment should be reversed and a new trial granted, with costs to the appellant to abide event.

All concurred; Williams, J., not sitting.

Judgment reversed and a new trial ordered, with costs to the appellant to abide the event.