146 Mich. 630 | Mich. | 1906
(after stating the facts). Having reached a conclusion opposed to that arrived at in the court below, in which court the witnesses were presented, with such advantage as their appearance and manner of delivering their testimony affords, it is proper to state with some particularity the reasons for concluding that the complainants have not made a case. It is clear that the complainants, on or about July 26, 1900, moved upon the premises in question and thereafter until the death of Mr. Noble, in September of the same year, made their home there and kept his house, Mrs. Fowler especially being kind to him. It is proved that, after his death, they buried him, paying the funeral expenses, amounting to about $88, and some small store bills, amounting to $14 or $15. When complainants first rested their case, no evidence had been introduced except the written memorandum which has been referred to, to establish the contract set out in the bill of complaint or to prove by what understanding or arrangement complainants occupied the farm. The witnesses who had been sworn were the complainants, Huntley Russell, James Beeson, and Earl Barker. We need not look into the testimony of complainants for competent proof of the alleged agreement. The testimony of Mr. Russell is to the effect that Mr. Noble said to him that, if he could get a person to come there and take care of him as long as he lived he could have the farm, and he asked if witness knew of a proper person. The testimony of Mr. Beeson, who is a son of Mrs.
‘ ‘ I have got good care. Fred and Elizabeth are taking care of me.”
The defense having offered testimony, and the cause having proceeded to argument, it was, after an interval of some days and upon application of counsel for complainants, reopened, and, coming on to be heard, over the objection of counsel for defendants, John Cady and William Hyser, the physician of Mr. Noble, William Koning, and Mary Rideout were produced as witnesses for the complainants. Up to this point, it seems clear that the case for complainants was rested, and was intended to be rested, upon proof of the expressed desire of Mr. Noble that someone should live with him, and that such a person might have the farm, upon proof that complainants had gone to live with him, and upon the writing as evidence of a contract actually made. The defense had, however, attacked the genuineness of the writing, had produced a petition, verified by complainant Albert F. Fowler on September 10, 1900, filed in the probate court for the county of Kent in the matter of the estate of Joseph B. Noble, in which he describes himself as stepson of Joseph B. Noble and a friend interested in his welfare, and stated that said Noble was of the age of 78 years or thereabouts, and, by reason of his advanced age and hard manual' labor, was reduced to a state of incompetency—
“ And is unable to care for himself or for his necessary
The names of interested persons are said to be-Noble, grandson, 10 years old, Sand Lake, Mich., besides the two sisters who have been mentioned. They had shown Mr. Noble’s recollection of and fondness for his granddaughter, his hostility to his stepson; that Mr. Noble died on Sunday and was working about his farm on the previous Saturday, husking corn; that the farm was let on shares for the year 1900, Noble to harvest his share of crops, which consisted of corn and potatoes. The paper writing is a sheet of small note paper, folded once. Upon its face is the alleged promise or agreement. On the outside is written, “July 24, 1900.”' “Will.” “$25 to grandchild when 18 years old.” Mr. Fowler did no work on the farm previous to the death of Mr. Noble. The complainant Mrs. Fowler continued the business of a
It was with the case in this situation that the additional witnesses were produced. John Cady is a brother-in-law of Mrs. Fowler. While he varies his testimony somewhat, he does testify that, several weeks before the time he was on the witness stand, he told Mrs. Fowler’s daughter that he didn’t know anything about the matter in particular, didn’t think he could do them any good, but that he did tell her just what he told on the witness stand. The effect of his testimony, in any event, is that Mr. Noble told him one day that he was looking for complainants to come, and had made arrangements with them to come and take care of him as long as he lived. He did not tell what the arrangements were or anything further. The testimony of the physician is to the effect that he told Mr. Noble, in the summer of 190‘0, that he should have some one to live with and care for him; that later, Mr. Noble having told him that Mrs. Fowler was good to him, he said that it would be proper for him to provide some means for her getting her pay, to which Mr. Noble replied that he had it fixed. How, or in what manner, he had it fixed was not stated. His testimony that Mr. Noble was sick for four weeks before he died is directly disputed. The witness Koning says that Mr. Noble told him that he was getting old and would have to have help, and so Mr. Fowler and his wife consented to come and help; that Noble further said that he had no further use for the place
We are not satisfied, by the evidence, that the written memorandum was executed and delivered in evidence or in performance of the alleged parol agreement. We are not satisfied that complainants, or either of them, ever saw the memorandum, if it is genuine, until after the death and burial of Mr. Noble. If the facts set out in the petition in the probate court are true, no valid arrangement with Mr. Noble, whether the one averred or another, is proved. If we assume that complainant Albert is ap ignorant man, as is intimated in the brief, and did not rightly appreciate the statements contained in said petition, his action is nevertheless significant as showing whether he was relying upon, and considered himself bound by, the agreement which he asserts was made with Mr. Noble. It is unnecessary to enter upon a discussion of the question of the genuineness of the paper writing. Counsel for complainants, who, in his main brief, does not refer at all to the written' memorandum, insists that, independent of that memorandum, enough appears to make a case for relief; that, if there are variances between the bill and the proofs, they are circumstantial and do not change the substantial merits. He cites and relies upon Taft v. Taft, 73 Mich. 502. Discrediting, as we do, the fact that the written memorandum was executed for the purpose of carrying out a promise to convey lands to the complainants jointly, that it was executed after repeated requests on the part of complainants to Noble to carry out the agreement to convey, that it was delivered, when executed, to the complainants or
“ The ground on which the court acts at all, in these cases, is fraud, in refusing to perform after performance by the other party.” McMurtrie v. Bennette, Har. Ch. (Mich.) 124.
See, also, Webster v. Gray, supra. In any view of the case, complainants have failed to convince us of their right to the relief prayed for. There is no reason, however, why an accounting should not be had in which the complainants may be allowed their disbursements, whether for betterments of the property or for the expenses of the sickness and burial.
The decree is reversed, and a decree will be entered in this court denying complainants the relief prayed. The record • will be remanded, with direction to take an account. Defendant Ethel Noble will recover costs of both courts.