Schmoltz v. Schmoltz

Grant, C. J. {after stating the facts). Counsel for the plaintiff states his position as follows: ‘ ‘ The action in this case is not brought upon the contract, but is upon the theory that the contract is valid, and the action is for the fraud committed in making the contract, and inducing the plaintiff to release without receiving the compensation, and in causing her to execute a written release that did not express the true consideration between the parties.” In other words, she affirms the contract, retains all the benefits which she has obtained from it, and asserts that [694] she would not have made it had she not been misinformed by her husband as to the amount of his property, and now seeks to have a jury or court give her an additional amount. Her declaration asserts that the parol agreement was that she should have one-half of his property, but such is not the written agreement. She ratifies that, and cannot be hfiard to assert a different one. If it did not contain the actual agreement of the parties, her appropriate remedy is in equity, to set it aside or to reform it. The only theory, therefore, before us, is that he misrepresented to her the amount of his personal property; that she would not have made the contract had she been fully informed, and is therefore entitled to damages for such misrepresentation. What interest has she in the personal property ? Only that which comes from the marital relation. The title was in him, not in her. She has no salable interest. He could sell and convey it without her consent. The household goods were divided between them, he taking certain specified articles, and she taking the rest. There is no way to determine what her interest in the property is. She had no present subsistent interest to be damaged. A court of law cannot determine whether the separation was due to his or her fault, with a view to determining how much she ought to have. That subject belongs exclusively to a court of chancery. They have concluded to separate, and, by the agreement of separation, have fixed their rights. She relinquished her right to support, and he to her services and society. Both recognized the duty to support the child, and agreed how much he should contribute towards it, and that she should contribute the rest. Under like circumstances, this court said: ‘ ‘ The consideration for the conveyance embraced matters incapable of any accurate estimate in money, and the consideration named' by the parties must therefore be taken and deemed to be the valuation placed upon it by themselves.” Randall v. Randall, 37 Mich. 563, 574. What shall be the measure of damages if she be entitled [695] to recover? Shall it be such alimony as the jury may think she is entitled to have if they find she is not at fault ? Shall it be one-third or one-half of his property, or what she would be entitled to upon his death ? Alimony rests entirely in the judgment of a court of equity, and depends upon the condition and situation of the parties, — the necessities and property of the wife, and the conduct and abilities of the husband. It thus appears that plaintiff had no valid subsisten! rights or interests in her husband’s property, but only contingent ones, and such cannot be made the subject of a suit at law for damages. The court correctly held that the declaration set forth no damages which she was entitled to recover in a suit at law. Hutchins v. Hutchins, 7 Hill, 104; Adler v. Fenton, 24 How. 407. There is no allegation in the declaration that defendant Jacob made any representation whatever to, her, either as to the value of the lot or as to the amount of the personal property, or that he said anything to her to induce her to make the agreement. . The sole allegation in regard to Jacob is that Frank said to plaintiff that defendant Jacob deemed the lot to be worth $1,600, while she alleges it to be worth $2,000. This is not a sufficient allegation upon which to base a charge of fraud or conspiracy or misrepresentation of the value of the land. The judgment is affirmed. The other Justices concurred.