*1 v. Bell. v. BELL. KENT by Sufficiency Specific of Bill —Oral Contract Performance — Property Will —Amendment. to Leave Ex-Wife alleged oral contract to leave- performance of specific Bill for properly found not to have stated will relief, fix the- failed to such where it aetion for a cause of plain- particular contrаct, what work failed to aver date years, failed during period about tiff 6-1/2 nominal,, why any, anything or even a allege paid he was not allege probated was- made, when will eharge failed to represented him executed, allege had deceased failed to leaving property, failed him the a will that she had executеd allege that a close or intimate following some S their divorce parties at time existed keep the plaintiff claims he undertook to years prior to when them, made no claim is premises repair maintain regular employment, changed his vocation gave up that he other is, injured, but cause or was otherwise of residence 1948,. (CL pursuant statute amend remanded with leave to 650.18). § JJ., dissenting J., part. Carr, Kelly, C. and Dethmers J.. Russel), (H. Holland Oakland; from Appeal (Docket No. Calen- 4, 1962. October Submitted 1962. December 49,625.) No. Decided dar Bell and K. against E. Kent James Bill John of Aileen of tbe estate P. executor Barrett, Edward of agree- for deceased, specifiс on motion.. Bill a will. dismissed to make ment with, remanded Affirmed, appeals. Plaintiff to amend. leave for Points Headnote References seq., et 206. Jur,
57 Am Wills §§ 444' Cooney, plaintiff. F.
Milton (Goodloe Barrett & Patterson and H. Patterson *2 Rogers, counsel), for Barrett, of defendant executor. (dissenting).
Carr, C. J. 'Plaintiff case brought county- suit in the circuit court of Oakland the’specific seeking of an enforcement verbal him with contract claimed have been made Aileen former The of Kent, his wife. bill many years prior alleged that for 24, November plaintiff and Mrs. and 1950, Kent husband were n marriage during they their wife, the became city aof of that, owners home the and Pontiac, proceedings, pursuant property in divorce to a set- agreement plaintiff tlement dеred his interest released and surren- said Mrs. Kent. Plaintiff’s claims with reference to the of his basis equitable sought suit for the relief are set forth in following paragraphs complaint: bill of “5. That on or about said 17, 1953, November requested plaintiff, Aileen Kent Kent, John E. perform her husband, former certain and work, supervise of certain labor on the buildings premises, premises on the and the above described. That from work, the date of said first until the death of the said Aileen the said was under contract with said Kent, plaintiff, John Kent, E. repair Aileen Kent' for maintenance and said building premises, from time to time. n “6. That 17, 1953, between November and the date May of the death of the said Aileen to-wit: Kent, 1960, 16, thе said Aileen Kent was absent from the State of on several and.numerous occa- long periods during sions, time, time, which she contracted with made a contract with the plaintiff, John E. Kent, to care for and and maintain, - supervise premises maintenance said buildings thereon. v. Bell. 17, That between November “7. or there- April, negotiations оr about abouts, and on E. Kent, took and Aileen between John herein, now deceased, Kent, terms perform which E. Kent contracted to such serv- John charge, ices Aileen Kent above referred to for a nominal consideration of said services ren- agreed rendered, dered and to be make transfer, ises thereof аnd contracted to she convey, a will, the terms of which would give prem- E. Kent, devise John together described, above with the contents which, were at the time of contents the di- parties. vorce between the “8. That the said E. Kent, herein, John pursuant to contract, the terms said from No- specific 17,1953, contract, vember and the datе of the until the date of death of the said Aileen part care maintain all for, and at times performed by so made to contract him. alleged, “9. That the last will and *3 so testament, probate county has been offered for in the Oakland probate Michigan, court at Pontiac, allowed, and by neg- and terms failed, its the said Aileen Kent performance lected and omitted the of the contract to make a will outlined.” above Barrett,
Defendant executor as of the estate of Mrs. ground motion to filed dismiss the bill on the it a failed to state cause of action en- titling plaintiff sought, to the relief and further as- pleading that, serted if be the considered as stating complete action, a cause of had a adequate remedy hearing Following and at law. granted, in circuit court the motion to dismiss was judge opinion the in a circuit written in filed the stating cause his reasons for action as follows.: “(a) language It is obvious from the in the bill complaint, dealing ren- the claimed services by pecuniary dered, that the can same be determined nothing extraordinary, standards. There unusual, is [Dee.'
personal, unique anything else about efforts supervise man maintain, of a ‘to care for and premises building of said maintenance and there- supervised property The on’. maintained con- single single lot, sisted of a No. with a residencе thereon. The value the claimed would services going simply days or be involved times the hours comparable everyday claimed services services. rate such plaintiff’s The can be determined pecuniary a and therefore there is an standard adequate adequate remedy at law. an Since is there spe- remеdy equity decree law, at a court of will not cific devise of a contract to a will to execute realty in consideration of rendered. “(b) allegation plaintiff’s in There no bill of close, intimate or filial existing parties. im- between the There were no provements the upon in in reliance made contract.” trial,
The court were conclusions reached (cid:127)supported prior recogniz references decisions applying principles ing deemed to be control ling in From the of this nature. order dis cases appealed, asserting in missal substance has (cid:127) judge holding that the trial in error that the facts set forth the bill of were insuffi specific per of action for cient constitute cause complaint having formance. The bill of missed plied been dis necessarily ap motion, on rule must determining sufficiency pleading accepted factual therein .that averments must be general respect true. The rule been has repeatedly recognized appliеd by this Court. pleader may placed Mere conclusions of the not be *4 category in the same with averments of facts. Pla ssey v. Loewenstein & Son, S. 528. 525, plaintiff setting
It will be noted that in forth his alleged cause of action not fix the on which, date according to claim, his a definite contract had been v. Bell. himself and’ former wife. into between his enterеd negotiations took No- that It is stated April, thereabouts, 17, 1953, or vember perform which he “contracted to in accordance with to a nominal such services above referred for as charge” that Kent contracted to Mrs. make ownership per- bywill which of the real estate and given to him. sonal to would be referred fоr, he maintain Plaintiff averred that “did care part at all the contract.” times his particular performed during pe- he work was What question pleading. not forth in the riod set repair necessary What maintenance not was became plaintiff appear averred. Neither does it paid any during not for of the work that he did period question. Paragraph pleading 7 of refers charge.” a “nominal explanation any why There no as charge was made if his services rendered under of the him. contract nature claimed allegation There no the bill to the time when the will of Mrs. which probate, may admitted to was have antedated the was executed. It
nеgotiations plaintiff says which place. any took claim There was no at time represented Mrs. Kent that she had exe- leaving property. pointed a will cuted him the As judge opinion, the trial out there was no allegation in the bill of effect that a parties or intimate close between the following granting at time existed deсree divorce. by plaintiff
The contract claimed involved the transfer title real estate. To such contracts generally applies statute frauds* in the ab-
[*] CL § 566.108 (Stat Ann Rev § 26.908).
448 368 estoppel question. Lyle of
sence raise In v. Munson, 250, Mich it 260, was said: performance, “Part an while essential in test, comprehend does not in itself equitable whole doctrine Misleading, relief in this class оf cases. acquiescence fraudulent conduct act or underlying thought chancery which moves the court principle equitable estoppel deny under the re- sort to the statute as an frauds instrument of question part per- fraud. The is not alone one Perry, Chip (Vt) formance, but as said Meach v. n (6 719): 182 Am Dec “ part performanсe, attending ‘Does the with the against circumstances, make a fraud, case which a ” equity ought court of to relieve V quoted approval Daugh- Said statement Poppen, erty v. 430, 316 Mich in Adado 441, also appear v. Assid, Mich 633. It does not from plaintiff the bill of was in the case that at bar relying part on claim of fraud on the of Mrs. Kent. Rather, he relied on his claim that contract performed was made that he but that she not. per- The services that the claimed to have agreement formed under his with Mrs. Kent were not personal They of nature. did not involve her care support. they looking- Rather, were limited to property. after certain it Neither is asserted аas result of the rendition of such services prejudiced. No claim was made he was give up employment change forced to other or to regular vocation or of residence. There nothing pleading- length was time and in indicate repairing
that he have claimed to devoted maintaining property, or the nature оf his respect. clearly appears labors'in that It that the performed claimed have been were of such pecuniary 'compensation character toas render an adequate remedy. plain- No claim was asserted that 449- 'Kent Bell. improvements to the at his own. made tiff expense. reaching trial his cоnclusions the court
In relied Keys, in Blackwell v. on decision denying specific of the trial court which the decree *6 agreement performance of an oral amake opin- will was affirmed. Reference ion to the case made in the was Athens, of Andrews 44 v. Idaho 797 (260 opinion appears 423). ALR P That also 69 by an 8, where it is followed extended annotation (69 14). (p 804): there ALR It was held that “Performance of services of such a character by pecuniary their cannot estimated a value stand- required permit specific per- ard is a decree of formance.” reversing judgment
In
the
of
trial'
in'
court
effect
granting plaintiff
remedy
specificperformаnce
the
of
agreement
fully
anof
oral
that he claimed to have
,
performed,
(pp
806):
it was
practically
specific per-
“In
all the cases where
formance was
the
decreed,
called for
contracts
the
per-
of a filial
duties
and intimate
sonal nature,
value of which
the
could not be esti-
presents
entirely
mated. This, an
course,
differ-
question,
point
ent
and such authorities
not
are
promisor
in this case. Here the deceased or
was not
family
respondent,
live
the
and no close,
relationship
intimate, or filial
was to exist. The con-
required
simply
respondent
tract
to look after the
the
business
the deceased. He was to
handle
properties,
farms and various
receive and disburse
moneys,
general
and in
act as the business adviser
required
and assistant of the owner. He was
ren-
ordinary
agent
der no
that an
service
real-estate
or factor could not
not
for his
and does
personal
clients. This was
not
contract for the
aged person,
great patience
care of
an
where
required, contemplating
only
not
infirmities
clothing,
good temper,
and
for-
food, medicine,
but
please,
effort to
an inti-
beararice,
honest
and
and
simply
family relationship;
a busi-
but
mate
arrangement
the'management and care
for
ness
property of the deceased.”
Ap
appellant to
for
Attention is called
counsel
Betterly
pleb
Wechsler, Mich 636,
aum v.
and
Granger,
In
these cases
Kent’s were pecuniary compensation acter to render therefor as adequate. per of a The services not rendered were nature, sonal no claim is with reference asserted par a or to close intimate making agree at the ties ment. time of the alleged, of the On the facts the bill of basis justify forth a did not cause of action set equitable sought. ing granting relief dismissing The of the trial court the bill of order appellee is with costs executor affirmed, of the estate of Aileen Kent. JJ., concurred with Carr, . Dethmers and Kelly,
J.0. 451 v. Bell. (concurring part). general The J. rule Black, equity ap is that should be tried cases so if that, pealed, they may dispo for final come to Court complete comprehensive Culy sition on v. record. Uрham, (106 Rep 388); Mich 131 Am St Kenny Village v. Crocker, 6; Crocker Mich v. Jeffrey, Novi, 75; Lamb of 41 Mich 719. principal
The
reason,
course, is that we
hear
equity
determine
cases anew.
Further,
as
Jeffrey
in Lamb v.
at 721:
judge
Complainant
“The
erred in this dismissal.
put
proofs,
was entitled
and have the ease
up on
come
the facts.
Shaw,
Hewlett v.
It now that this be tossed out *8 upon prejudice, court, motion with final with- affording right (CL out Mm the to which the statute § [Stat 27.2608]) sup- § 650.18 Ann 1943 Rev posedly guarantees for one bill of whose (see Mor And is not case insufficient.
is found Co., Ins. 368 Mich Mutual Massachusetts ris v. Life suggested opportunities 172) previous where gone where, It is one unheeded. have amendment as in supra, yet not as Lamb, “de has to amend.” clined jurisdiction- legal or is not a case where some
This equity jurisdiction appar- assumption al ent allegation is bar plain It inis, sum, а case of on face of bill. pleaded have his evi- should specific penalty detail on of final dismissal. dence plaintiff pleads is if a too much evidence he Thus castigation. pleads supposed If he too due for be allegedly snaps trap evidence, the of dismissal little way, affirm, if we another statistic shut. Either comfortably “cases dis- added to the list headed posed of.” entry of order
I and remand would reverse denying in the al- or, motion to dismiss defendants’ (see Melvin affirm with leave amend ternative, Reading, 357). 348, 356, JJ., con- Otis M. Kavanagh, Souris, Smith, J. curred Black, with I with Mr. Adams, J. concur Justice al- Black’s suggestion order of the trial court that the ternative dismissing bill of be affirmed should to the trial court with the case remanded but leave § with CL 650.18 to amend accordance 27.2608). (Stat § Ann Rev .1943 Smith, JJ., M. Kavanagh, Black, Souris, Otis Adams, J. concurred