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In Tyranski v. Piggins, supra, 205 N.W.2d at pages 596-597, the plaintiff cleaned the house, did the marketing, cooked the food, did the decedent's personal laundry, acted as his hostess, cared for him when he was sick, and contributed money towards the purchase of a house in which the unmarried plaintiff and the decedent resided.
Summary of this case from Whorton v. DillinghamOpinion
Docket No. 11388.
Decided February 20, 1973. Leave to appeal denied, 389 Mich. 793.
Appeal from Wayne, Neal E. Fitzgerald, J. Submitted Division 1 April 7, 1972, at Detroit. (Docket No. 11388.) Decided February 20, 1973. Leave to appeal denied, 389 Mich. 793.
Complaint by Helen Tyranski against Frederick F. Piggins, ancillary administrator with will annexed of the estate of Alfred P. Lattavo, for specific performance of an oral agreement with decedent to convey a house to plaintiff. Judgment for plaintiff. Defendant appeals. Affirmed.
Charest, Clancy Katulski, for plaintiff.
Piggins, Grigsby Erickson, for defendant.
The plaintiff, Mrs. Helen Tyranski, commenced this action in January, 1970, claiming that she was entitled to a house located on Blue Skies Avenue, Livonia, Michigan, which was held in the name of Alfred P. Lattavo. Mr. Lattavo had died in October, 1969.
At the conclusion of the trial, the judge, who sat without a jury, found that Mrs. Tyranski was entitled to the house and its furnishings. A judgment was entered for specific performance of an oral agreement the judge found Lattavo had made with Mrs. Tyranski to convey the house to her.
The defendant, the ancillary administrator of Lattavo's estate, does not, on appeal, dispute the claimed oral agreement. He contends that the judge should have refused to enforce the agreement because of the meretricious relationship of the parties. We affirm.
Lattavo, who traveled frequently in connection with his trucking business, met Mrs. Tyranski in 1963, while she was working as a cocktail waitress. They were attracted to one another and shortly thereafter began living together in Mrs. Tyranski's rented Detroit home, and later in an apartment. After they had been living together for nearly four years, Lattavo had the Blue Skies house built. There is evidence that tends to show that $10,000 of the required funds was contributed by Mrs. Tyranski. Mrs. Tyranski decorated the house and selected the furniture. They lived together in the Blue Skies home from 1967 until Lattavo's death.
Lattavo had married Rosella Lattavo in 1941. He made trips to their home in Canton throughout the period of his relationship with Mrs. Tyranski, though by 1967 he spent only a few days a month in Canton. The rest of the time he spent in Livonia.
Mrs. Tyranski is a married woman and the mother of two children. She has been separated from her husband for many years, but never secured a divorce. Lattavo acted as a father to her children, and gave away her daughter, Laura, in marriage. While Lattavo was in Michigan, he and Mrs. Tyranski lived together as man and wife, and at least one mutual friend testified that she knew Mrs. Tyranski as "Mrs. Lattavo".
Rosella Lattavo testified that she did not learn about Mrs. Tyranski or the Blue Skies house until she went to an attorney to file for a divorce and had her husband investigated in August, 1969.
The issue is whether Mrs. Tyranski's claim under the agreement is defeated by the meretricious relationship.
While the parties illicitly cohabited over a period of years, that does not render all agreements between them illegal. Professor Corbin and the drafters of the Restatement of Contracts both write that while bargains in whole or in part in consideration of an illicit relationship are unenforceable, agreements between parties to such a relationship with respect to money or property will be enforced if the agreement is independent of the illicit relationship.
6A Corbin, Contracts, § 1476, p 622; 2 Restatement Contracts, §§ 589, 597, pp 1098, 1108.
Neither these authorities nor the large body of case law in other jurisdictions — there is no Michigan authority dealing with this precise issue — articulate a guideline for determining when the consideration will be regarded as "independent", and when it is so coupled with the meretricious acts that the agreement will not be enforced. A pattern does, however, emerge upon reading the cases.
Neither party to a meretricious relationship acquires, by reason of cohabitation alone, rights in the property accumulations of the other during the period of the relationship. But where there is an express agreement to accumulate or transfer property following a relationship of some permanence and an additional consideration in the form of either money or of services, the courts tend to find an independent consideration.
Cargill v. Hancock, 92 Idaho 460, 465; 444 P.2d 421, 426 (1968) Humphries v. Riveland, 67 Wn.2d 376, 389; 407 P.2d 967, 973 (1965); Stevens v. Anderson, 75 Ariz. 331, 336; 256 P.2d 712, 715 (1953); Smith v. Smith, 255 Wis. 96, 99; 38 N.W.2d 12, 14 (1949); Vallera v. Vallera, 21 Cal.2d 681, 684-685; 134 P.2d 761, 763 (1943).
Thus, a plaintiff who can show an actual contribution of money, pursuant to an agreement to pool assets and share accumulations, will usually prevail. Services, such as cooking meals, laundering clothes, "caring" for the decedent through sickness, have been found to be adequate and independent considerations in cases where there was an express agreement.
Zytka v. Dmochowski, 302 Mass. 63, 65; 18 N.E.2d 332, 334 (1938). See, also, Smith v. Smith, 108 So.2d 761, 763 (Fla, 1959). Even in the absence of an express agreement, California cases have held that a woman is entitled to share in property jointly accumulated in the proportion that her funds contributed toward its acquisition. Keene v. Keene, 57 Cal.2d 657, 662; 21 Cal.Rptr. 593, 596; 371 P.2d 329, 332 (1962); Vallera v. Vallera, supra, p 763; Garcia v. Venegas, 106 Cal.App.2d 364, 368; 235 P.2d 89, 92 (1951).
Wurche v. Stenzel, 270 Cal.App.2d 499, 504-505; 75 Cal.Rptr. 856, 859-860 (1969); Merchants National Bank of Mobile v. Cotnam, 250 Ala. 316, 325-326; 34 So.2d 122, 129-130 (1948); Lynch v. Rogers, 177 Md. 478, 489; 10 A.2d 619, 624 (1940); McMillan v. Massie's Executor, 233 Ky. 808, 814; 27 S.W.2d 416, 420 (1929).
An express agreement to convey the Blue Skies house was established by testimony at the trial. There was also evidence that Mrs. Tyranski had "changed the tenor of her life" in performance of the agreement so as to make reasonable the inference that there was such an agreement. See In re Cramer's Estate, 296 Mich. 44, 49 (1941).
Mrs. Tyranski cleaned the house, did the marketing, cooked the food, did Mr. Lattavo's personal laundry, and acted as his hostess. She cared for him when he was sick, especially during the last year and a half of his life when his condition required greater attention and care. There was also the evidence of the $10,000 claimed to have been contributed by Mrs. Tyranski to Lattavo in April or May of 1967.
The money could be traced to the house on Blue Skies only by inference. Mrs. Tyranski did not testify, possibly because of the "dead man's statute". Mrs. Tyranski's mother testified that she gave inheritance money to Mrs. Tyranski for the house. Mrs. Tyranski's daughter testified that Mr. Lattavo "said he would consent to taking [the $10,000] as part payment for the house".
It has been said that "equity does not demand that its suitors shall have led blameless lives". Loughran v. Loughran, 292 U.S. 216, 229; 54 S Ct 684, 689; 78 L Ed 1219, 1227 (1934). The Michigan case law is in accord. In Burns v. Stevens, 236 Mich. 447, 452-453 (1926), the plaintiff (the man) and the defendant (the woman) lived together for three years. They made a $1,000 down payment on a cottage. They signed a land contract "jointly". After the man tired of the woman, he brought suit claiming the cottage was his property and that her name was put on the contract to secure repayment to her of $400 she had advanced. He sought to have her interest in the contract declared to be a mortgage. In upholding the trial court's determination in his favor, the Michigan Supreme Court said:
"[T]he rule that if the parties to a suit are in pari delicto a court of equity will leave them where they have placed themselves should not be here applied. * * * The question to be determined in this case * * * is whether the party acquired an interest in the property or a security for the money advanced. The manner in which they were then living is immaterial to the issue except in its bearing upon the weight to be given to their testimony. The doors of courts are not closed to people who lead immoral lives when contracts between them untainted with illegality or fraud are involved." (Emphasis supplied.)
There are no other Michigan cases concerning the kind of factual situation with which we are now confronted. The defendant relies on Michigan precedent holding that a contract founded on an act prohibited by a penal statute is unenforceable (Silver v. A O C Corp, 31 Mich. App. 147) and asserts that the agreement relied on by Mrs. Tyranski is founded on acts violative of MCLA 750.335; MSA 28.567, making it a crime to engage in lewd and lascivious cohabitation.
Similarly, see In re Reidy's Estate, 164 Mich. 167, 173 (1910); Cashin v. Pliter, 168 Mich. 386, 389 (1912); Turner v. Schmidt Brewing Co, 278 Mich. 464, 470 (1936).
In Silver, the plaintiff sought to recover for electrical work he performed at a time when he was not a duly licensed electrical contractor. Enforcement of the bargain would have subverted the legislative purpose.
Compare Lake States Engineering Corp v. Lawrence Seaway Corp, 15 Mich. App. 637, 645-646 (1969); Adams v. Edward M. Burke Homes, Inc, 14 Mich. App. 578, 593 (1968) (Levin, J, concurring).
Silver could not recover except on the strength of a contract to perform work which he was not licensed to perform. Contrariwise, Mrs. Tyranski was able to establish the contract to transfer the Blue Skies house to her without reference to her sexual relationship with Mr. Lattavo.
We have examined the cases decided in other jurisdictions relied on by the defendant in his brief and have found them to be distinguishable.
In Wellmaker v. Roberts, 213 Ga. 740; 101 S.E.2d 712 (1958), the Court found that the agreement between the woman (plaintiff) and the man (defendant) to engage in illicit sexual relations "formed a part of the contract relied upon by her as the basis for the recovery."
In Heaps v. Toy, 54 Cal.App.2d 178; 128 P.2d 813 (1942), the woman agreed to refrain from marrying other men so that she could maintain an illicit relationship with the defendant. Under the Civil Code of California, such an agreement is declared void. The Court relied on that statutory provision, and also found that the consideration for the agreement was "contrary to good morals" and hence unlawful under another provision of the Civil Code.
Armitage v. Hogan, 25 Wn.2d 672; 171 P.2d 830 (1946), was an action by the man to recover from a seller of a hotel money that the plaintiff had paid in partial payment of the purchase price of the hotel which the plaintiff was buying for his courtesan. While the plaintiff claimed a contract to marry, the woman denied it saying that all that was involved was an illicit relationship. The Court in this case concluded as a factual matter that the only contract was a contract for illicit services and, therefore, the contract would not be enforced.
In Grant v. Butt, 198 S.C. 298; 17 S.E.2d 689 (1941), the plaintiff woman was part Indian and part black, and the man was white. The contract, said the Court, struck at the legitimate propagation of the race to which one belongs, and its enforcement would circumvent the constitution and statutes of the State of South Carolina relating to the intermarriage of the races.
In Groves v. Whittenburg, 120 S.W.2d 870 (Tex Civ App, 1938), the only evidence of an express agreement indicated in the opinion was the word of the woman promisee who claimed she was promised $100,000 for continuing a sexual relationship. While the woman also claimed that she rendered services, it does not appear that "services" other than sexual services were rendered.
In Angresani v. Tozzi, 217 App. Div. 642, 643; 216 N.Y.S 161, 163 (1926), the Court concluded, on the basis of the amount of wages the plaintiff earned in lawful employment and the amount she claimed for services rendered to the defendant, that the "direct object [of the agreement was] the promotion of illicit sexual intercourse."
Where a meretricious relationship has already been entered upon, to penalize one of the parties by striking down their otherwise lawful promises, will not undo the relationship, nor is it likely to discourage others from entering upon such relationships. It appears on examination of the cases that the courts have, on various theories, allotted to the woman a share of the property in cases thought to be meritorious. We are persuaded, as was the trial judge, that this is such a case.
Williams v. Bullington, 32 So.2d 273, 275 (Fla, 1947); Warner v. Warner, 76 Idaho 399, 407; 283 P.2d 931, 935 (1955); Karoley v. Reid, 223 Ark. 737, 743; 269 S.W.2d 322, 326 (1954); Bridges v. Bridges, 125 Cal.App.2d 359, 363; 270 P.2d 69, 71 (1954).
Cf. Sheneman v. Sheneman, 30 Mich. App. 1, 28 (1971); Stevenson v. Detroit, 42 Mich. App. 294, 299 (1972).
Affirmed. Costs to plaintiff.
All concurred.