142 Mich. 316 | Mich. | 1905
Plaintiff sued the defendant in justice’s court, basing her right to recover upon a certain written contract. An appeal was taken to the circuit court, where plaintiff recovered, and defendant has brought the case here by writ of error. The agreement between the parties reads as follows:
“Memorandum of agreement, made and entered into upon the 35th day of October, A. D. 1899, by and between John Denier, of the city of Detroit, Wayne county, Michigan, and Catherine Denier, of the same place, party of the second part, -
“ Witnesseth as follows: Whereas, a decree of divorce a vinculo has heretofore been granted between the parties above mentioned by the circuit court for the county of Wayne in chancery by the Honorable Joseph W. Donovan, sitting as chancery judge; and, whereas, said Cath*317 erine Denler is contemplating an appeal to the Supreme Court of the State of Michigan to review said case; and, whereas, both parties are aware that there are no certainties in litigation, and each desires to settle the questions between the parties hereto:
‘ ‘ Therefore in consideration thereof, the said John Denler hereby agrees to give to Catherine Denler the sum of five hundred dollars immediately, and surrender to her, said Catherine Denler, all claim upon any furniture now in house 368 Columbia Street East, Detroit, and further consents also that the decree in this case be amended to that effect upon his (John Denier’s) part, which he hereby does.
“ In consideration of which, Catherine Denler, acknowledging the payment of said sum of five hundred dollars in money, and the transfer of said furniture, and the support of the boy Arthur Denler for one year and clothe him until twenty-one years of age, she, the said Catherine Denler, hereby agrees to waive, and she hereby does waive, any right that she may have to appeal and review the said case in the Supreme Court in the State of Michigan, and she, the said Catherine Denler, does hereby yield up any and every claim which she, the said Catherine Denler, may further have upon the said John Denler or his property beyond what is accorded to her by said decree, and the said decree shall stand permanent.
“It is further agreed that the said John Denler shall have the record testimony proposed for appeal.
“In witness whereof the parties hereto set their hands and seals the day and year first above written.”
On October 3, 1899, a decree was entered divorcing the parties to this suit and making certain dispositions of property by way of permanent alimony to the wife. Claiming to be 'dissatisfied with the decree, she took steps to appeal from the decree, and pending the preparation and settlement of a case on appeal the agreement in question was entered into.
The only child of the parties, Arthur Denler, lived with his mother. He was 16 years of age when the parties were divorced. The recovery below was for the amount claimed to have been expended by plaintiff for the support of the son for one year and for the amount expended for his clothing thereafter until he was 31 years of age. If
“ I am constrained to say, upon further examination of the writing itself, that, had oral testimony as to the agreement not been received, I should have construed the agreement, blind and ambiguous as it is, to mean what the jury found the agreement to be.”
We think the contract is susceptible of but one reasonable interpretation, and that the one given it below, and that the court should have directed a verdict. The parties had been divorced. No provision for maintenance of the child had been made in the decree. His maintenance was a matter in which both were interested. The evidence is undisputed that the plaintiff provided for the young man, for support for one year and for clothing for succeeding years, to the extent of the recovery had. As to the sums of money earned by the young man, it does not appear that they amounted to more, than the fair cost of his board. These conclusions render other questions raised unimportant.
The judgment is affirmed.
