author: Steere, J.

text:
    CADIEUX v. CADIEUX.
    1. Divorce — Extreme Cruelty — Condonation.
    Evidence of a conflicting nature in a suit for divorce based on charges of extreme cruelty, held, insufficient to justify a decree, and, if credible, the acts charged were condoned by complainant.
    2. Same — Gambling—Nonsupport.
    Although there was testimony in support of the wife’s averments and claim that defendant gambled on horses and bought stocks and failed to provide for her maintenance and comfort as fully as her needs required, the proofs were not sufficient to warrant the court in finding that, being of sufficient ability, defendant grossly or wantonly and cruelly refused and neglected to nrovide suitable maintenance for his wife.
    Appeal from Wayne; Hosmer, J.
    Submitted January 13, 1914.
    (Docket No. 68.)
    Decided March 28, 1914.
    Bill by Emlita Cadieux against Henry W. Cadieux for divorce. From a decree for defendant, complainant appeals.
    Affirmed.

      Ralph B. Wilkinson, for complainant.

      Devine & Snyder, for defendant.
   Steere, J.

This suit was instituted in the circuit court of Wayne county by complainant to obtain from defendant a decree of divorce on the ground of extreme cruelty and failure to support.

The charges in complainant’s bill range through the whole period of the married life of the-parties, beginning with their wedding trip, and include failure to suitably provide maintenance, irritability, and abusive language, gambling habits, use of drugs, and cruelty of a private nature. Defendant’s answer denied all complainant’s charges positively and in detail, otherwise casting no reflections on her nor making any counter charges, and opposed a severance of their marriage ties on the ground that the allegations against him were untrue in fact, and their married life had been a source of happiness to both, congenial and pleasant, excépt when occasionally disturbed by outside influences. The testimony indicates that he attributed his wife’s application for a divorce to the influence of her parents, rather than to her own inclination.

The parties were married in 1901, in Detroit, Mich., where she resided with her parents, who were apparently in good circumstances, living in their own home, which her father, who was engaged in the lumber business, testifies would rent for $75 per month. Defendant was a physician living and practicing at Grosse Pointe where his parents resided. When married he was 30 and she 21 years of age. She states he represented that he then had a practice yielding from $2,500 to $5,000 per year. He states that it was worth $5,000 per year when they were married, and he located in Detroit at the solicitation of his wife and her parents. This she denies, claiming he was anxious to establish himself in Detroit. They were acquainted for nearly a year and a half before their marriage and he had been entertained at her parents’ home. Her affiliations were Protestant, while he was of the Catholic faith. It is not shown that this was directly the cause of any friction between them, but she testified that her mother was opposed to Catholic priests and wanted her to be married by a Protestant minister, to which defendant consented. In the year 1902 one child, a daughter, now living, was born as the issue of this marriage, for whom both manifest strong affection. The parties went on a wedding trip immediately after their marriage and visited the Pan-American Exposition at Buffalo. She claims, and he denies, that their trip was to have been extended to New York, but they were obliged to return owing to his being short of funds. The conflict in their testimony begins at this early stage and. continues on through the history of their married life. On their return they went to live with her parents, which she states had been previously agreed upon. Most of their married life together was with her parents. She testifies:

“The arrangement was that father should supply the home, which was a new, solid stone ten-room house with hardwood floors and other conveniences and the furnishing of it, and the doctor was to give mother her board and father, who was a traveling man, his board at such times as he was home.”

The extent to which defendant kept his part of the agreement is a matter in dispute.

Defendant opened an office and engaged in the practice of his profession. The testimony is clear to the effect that he acquired a good practice and they apparently were prosperous and living happily. They remained at her parents’ home until February, 1906, when defendant left for a time; she remaining. In September, 1906, they went to keeping house in apartments on Jefferson avenue, where they resided for two years and four months, near the end of which time her parents boarded with them for quite a period while their house was being repaired, when they all returned together and occupied her parents’ house as before. Defendant claims to have objected to giving up their own home, where they had lived so pleasantly and happily by themselves, but that she and her parents insisted, and he yielded. She testified that he complained of the expense of maintaining a separate home and was anxious to return. They thereafter resided with her parents until shortly before this bill was filed, when she told him that she proposed to get a divorce, and dismissed him. Being asked when it dawned on her that she ought to have a divorce, she replied:

“Well, I can answer you the same as I did Dr. Cadieux. I answered him by saying that it had been a gradual losing of respect covering a period of ten years, and made harder and harder with the passing of each year by his disagreeableness and his low tastes —that he knew best how.”

Defendant testified of his dismissal that he knew nothing about any trouble until the morning they separated, when she came to his room and greeted him; on his asking her to kiss him, she refused, saying she would tell him after breakfast; that they breakfasted as usual, and, it being Monday morning, at which time he usually gave her money to run the house, he offered her his share, which was $15, and she said she would receive no more money from him, that her father and mother were going to live in California and she had told them everything about him, that she would not live with a gambler, and they had promised to take her back home and she was going; that his efforts to dissuade her were of no avail, and she soon began this suit.

The testimony of significance in support of complainant’s contention, aside from her own, is that of her parents, mostly her mother’s, tending to show failure to support his wife and contribute to the maintenance of the establishment to the extent he should and had agreed to, and irritating and unseemly conduct around the home. Complainant’s mother, who testified at length of many details in their domestic life, condenses her objections to her son-in-law into “two strong points,” being: “No funds and irritability — two pretty hard things to live with.” The father, who was from home most of the time, testified in harmony with his wife to the extent of his observations and experience, and says the doctor “was all self,” admits borrowing $200 of him, which was paid back, and says:

“I liked Dr. Cadieux pretty well. I always tried to get along with him. * * * He used to help_ me fix the furnace and clean off the sidewalk and things like that. * * * The doctor always got along with Mrs. King (complainant’s mother), so far as I know.”

The only other members of the household with personal knowledge of their daily, domestic life were Harriet Traut, who was a domestic in the family for a year after complainant and defendant went there, and Jennie S. Keeler, a friend who had known Mr. and Mrs. King 35 years and lived in the family, while complainant and defendant were there, for about six years. Harriet Traut stated she thought the doctor and his wife were—

“The best of friends. Mrs. King treated the doctor very nagging; she was very disagreeable in that way. She would find fault with different things with the doctor, trying to pick at him. She was very disagreeable to get along with anyways.”

Mrs. Keeler testifies:

“Well, it is a mystery to me. I was in that home the first five years of the doctor’s married life. I was in Mrs. King’s home the first five years after the marriage of the doctor and Miss King, and it seems to me that I was either blind or deaf or something. I don’t know what it is. And so much has been told here that I know nothing about and it is just as new to me as it is to a stranger; I cannot understand it. * * * I don’t understand all these things. There are some things I may have known, but they have gone from me. * * * I have always thought that if the doctor and his wife were left alone they could get along well together.”

Witness also testified to complainant visiting her and their talking the matter over, in which conversation witness tried to prevail upon complainant to give up the idea of a divorce for the sake of their child, and said, “If you two don’t get along well, why don’t you separate and live apart for a while, perhaps it will be all right in the end?” To which complainant replied, “No, I want a divorce from that man,” she says, “I might some time want to get married again.”

Numerous witnesses of respectability, in responsible positions in life, and their wives, who were or had been friends, neighbors, and associates of both parties to this suit, none of whom speak unkindly of complainant, testify to the good character, habits, and professional standing of defendant and the conduct of these parties towards each other in their daily life and at social gatherings, when mingling with their friends and acquaintances. They speak of them as an “ideal couple,” apparently fond of each other and happy together. They moved in good society and were frequently out together at social functions and public entertainments. Between November, 1910, and February, 1911, the month this bill was filed, they attended seven dances, or balls, which were leading, high-class, public, social entertainments, going in taxicabs to six of them, and visited otherwise socially amongst their friends as usual, attending a party together at the home of mutual friends about two weeks before this bill was filed.

While it may be conceded that complainant would conceal so far as possible her private family troubles, it is somewhat significant, as bearing on the charge of nonsupport at least, that there was no suspicion amongst their intimate friends of any estrangement. It is undisputed her husband did provide her with money and credit; the, only dispute is as to the amount. She testifies, “I had credit at Hudson’s, at Newcomb’s, at Elliott-Taylor-Wolfenden’s, at Traver-Bird’s,” leading merchants of Detroit. Her testimony that defendant was a cocaine fiend is, in our opinion, unsupported and clearly refuted not only by his positive denial, but by all extraneous evidence given by professional men of high standing, his patients, and others. This, with her tendency to magnify comparatively small incidents of their married life, which, if of any importance, had been condoned years before, tends to weaken her uncorroborated testimony as to other more serious charges. As to the charge she makes against defendant of unnatural, secret misconduct, we do not differ with the following conclusion of the learned trial judge:

“If with reference to the other matter of cruelty which is perhaps the highest charge that has been made here, if it were true, I think that Mrs. Cadieux has condoned that by not leaving the doctor at the time; but, as I said before, I am not willing to believe in the truth of that statement.”

There is some foundation in the charge that defendant was a gambler. While culpable and an evidence of moral instability, we are not prepared to hold that, as proven, it amounted to a cause of divorce. He was in no sense a professional gambler, nor even a second-class amateur, but is shown to have at times manifested a weakness for attending horse races and investing disastrously in his judgment as to the comparative speed of the competing horses. If his defense depended upon his denials and explanations in that connection, there would be little hope for him. He is also shown to have sought to increase his financial resources by investment in stocks through the brokerage firm of Cameron Currie & Co., which failed disastrously, and he stated at the time that he had lost everything. While this venture is to be deprecated as evidence of a gambling inclination and poor judgment, the courts have not yet gone so far as to hold such conduct ground for divorce. While at times shown to have been in debt and with impaired credit, defendant is shown at other times to have deposits in bank as high as $1,600 and to have spent money liberally for their pleasure when traveling with complainant. Though culpable at times in foolishly squandering money which should have been expended for the comfort and pleasure of his family, the evidence taken as a whole falls short of establishing that defendant, being of sufficient ability to provide a suitable maintenance for his wife, grossly or wantonly and cruelly refused or neglected so to do.

No useful purpose can be served in further discussing the extremely conflicting testimony of this lengthy record. We have carefully read it, and, while taken as a whole it leaves the impression that defendant has been a disappointment to complainant and her parents, and has failed to do for his wife, and himself, all that other men under like circumstances would have done, we do not find, under the well-settled rules of preponderance and presumption of evidence, that the grounds of divorce charged in the bill of complaint are satisfactorily established. This conclusion was reached by the learned chancellor who heard the evidence develop and had the benefit of observing the witnesses while they testified, and we find no good reason to disturb the result reached by him.

The decree is affirmed but, under the circumstances, we conclude that it should be without costs to either party.

McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Bird, and Moore, JJ., concurred.


source: Caselaw Access Project

author: McAlvay, C. J.

license: Public Domain

text:
    NUTTER v. COLYER.
    1. Trial — Witnesses—Absence of Party.
    The action of the trial judge, in charging the jury that defendant’s absence from the State during a personal injury ease was of no consequence, cured any prejudice that may have resulted from questions referring thereto asked by plaintiff’s attorney.
    2. Same — Leading Questions — Appeal and Error.
    Where defendant’s counsel took several objections to interrogatories of the opposing attorney, which were not ruled upon by the court, any intention to propound improper questions being disclaimed and counsel offering to frame new questions if the ones asked were objectionable, no prejudice warranting a reversal was made to appear.
    3. Landlord and Tenant — Contributory Negligence — Defect in
    Premises — Promise to Repair.
    A tenant, who relied on the statement of defendant’s agent that the floor of the kitchen was safe, was not guilty of contributory negligence, as matter of law, in making use of it, although she had called his attention to its weakness, and he had promised ,to make the repair, assuring her at the same time that the floor was not dangerously weak.

    Error to Wayne; Tucker, J., presiding.
    Submitted June 9, 1913.
    (Docket No. 48.)
    Decided April 7, 1914.

      Case by Georgia A. Nutter against Susan G. Colyer for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      James H. Pound, for appellant.

      Bumps & Bishop, for appellee.

       On the question of the contributory negligence of tenant injured by defect in premises, see notes in 34 L. R. A. 830 and 34 L. R. A. (N. S.) 808.

   McAlvay, C. J.

Plaintiff recovered a judgment in a suit for damages against' defendant for injury caused to her leg by the breaking of the floor of the kitchen in the house rented by her from defendant, its owner, claiming that such injury was caused by the negligence of defendant.

There is no dispute but that defendant was the owner of this house; that her husband was her agent and rented the premises in September, 1908, to plaintiff, by the month, for a certain rental; that she resided in the house for nearly two years before the injury occurred, keeping from two to four boarders and eight or nine roomers, and claims that on June 16, 1910, the kitchen floor in front of the stove broke through by her stepping thereon, and one of her legs went through to the knee joint, causing her severe injury, and to extricate her it was necessary to saw out pieces of the boards. Her claim is that defendant, by her husband, who acted as her agent in renting the premises, and who was a carpenter, agreed at the time the premises were rented to her to make all necessary repairs; that in September, 1909, she called his attention to the weakness of the boards in the kitchen floor, on account of the condition of which she was fearful they might break through with her, as she was a heavy person, and asked him to repair them; that he examined the floor and, testing it, said that it would last longer than she would; that he had some boards at his house and would attend to it for her; that she relied upon his statement that it was safe and thought no more about the danger; that she continued to walk over the floor afterwards without fear.

There is a sharp dispute between plaintiff and defendant’s husband, who acted as defendant’s agent, upon the terms of the leasing, which was verbal. He testified that it was agreed when the premises were rented to plaintiff that she would do all required repairs except to the roof and water pipes and pay $25 a month for the house; that no other agreement was ever made between the parties, and that she never called his attention to the weakness of the kitchen floor and never had any talk with him in regard to it; that in August, 1910, she sent for him, saying that she had been injured, when he went back to the kitchen and saw a hole in the floor.

Defendant reviews this case by a writ of error. Of the many errors assigned it will be necessary to consider but few, the most important of which relate to the conduct of the examination of witnesses by plaintiff’s attorney and the refusal of the court to pass upon objections of defendant’s counsel during such examination, and the refusal of the court to give certain requests to charge, and to the charge of the court.

Errors are assigned upon the conduct of counsel for plaintiff during the examination by him of defendant’s agent, who was called under the statute as a witness for plaintiff, and was examined at considerable length as to the absence of the defendant in California during the trial.

The record does not show objections made on that ground and exceptions taken at the time of the examination of the witness. The court, in his charge, told the jury that the absence of the defendant was a matter of no consequence in the case and was not to be considered by them. This corrected any improper impression the jury might have received from the testimony which was not properly in the case.

The record shows that during the trial of the case, while plaintiff was testifying on her direct examination, counsel for defendant objected several times and took exceptions to certain questions, claimed by him to be leading, upon which objections no rulings were made by the learned trial judge. Upon both of these matters errors have been assigned.

It appears that there were four occasions of this kind while this witness was on the stand. From the colloquies between court and counsel, it appears that during the trial it had been suggested by the court that both attorneys had been interrupting, and that the case was being tried with considerable spirit between counsel. Counsel for plaintiff disclaimed any intention to propound questions which were improper, and also that he had not heard the objections. He offered to reframe the questions if they were objectionable. It is not apparent to this court that these questions were prejudicial, and some of them were of a character which would admit the form of the question, and we cannot say that the allowance of any of them by the court was an abuse of a reasonable discretion. It is probable that the attitude of both counsel in the case by frequent interruptions and the nature of some of the questions objected to justified the court in not ruling on these objections. We find that in the record of 200 odd pages counsel for defendant makes no further complaint because the court did not pass upon his objections. We think that no prejudice to defendant arose by reason of this action of the court.

Defendant, in some of his requests to charge, in substance asked the court to instruct the jury that plaintiff could not recover in this case because of contributory negligence; she having used this floor for a long time after knowledge of its weakness.

It already appears that the terms of the contract of renting were in dispute and a question of fact for the jury to determine. Also that plaintiff testified she relied upon an agreement to repair, and claimed that she called the attention of defendant’s agent to this defect in the floor, which he specifically promised to repair, and told her the floor was safe, and that she relied upon what he said, and continued to use the floor. This court has held a tenant not guilty of contributory negligence under such circumstances. Mason v. Howes, 122 Mich. 329 (81 N. W. 111). The court submitted the question to the jury under a proper charge.

We have examined the other errors assigned, and do not find that they require discussion. Our conclusion is that the record does not disclose any reversible error.

The judgment of the circuit court is therefore affirmed.

Brooke, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


author: Brooke, J.

text:
    BEATTIE v. J. L. HUDSON CO.
    1. Evidence — Opinion Evidence — Hypothetical Questions.
    An expert medical witness’ opinion, based on tbe facts stated in tbe bypotbetical question and in part on a physical examination and in part on statements of tbe plaintiff and of ber attending physician, should have been struck out on tbe motion of defendant’s attorney, in a personal injury case.

      2. Same — Burden of Proof — Negligence — Contributory Negligence — Trial—Charge.
    Defendant’s request to charge that the burden of proof rested on plaintiff to show, by a fair preponderance of the evidence, that she had exercised reasonable care and watchfulness to avert if possible a collision, should have been given, in an action for injuries sustained in being run down by a horse, and it was insufficient to state in the charge the rule that plaintiff must exercise reasonable care, etc.
    3. Same — Negligence—Animals.
    It was misleading, also, to charge that if the plaintiff and her companion were paying no attention to the passage of vehicles on the street, and, while inattentive, walked carelessly in front of defendant’s delivery rig then being driven across the street, as shown by a preponderance of the evidence, plaintiff would be guilty of contributory negligence, since the instruction appears to place the burden of proof on the defendant.
    Error to Wayne; Van Zile, J.
    Submitted October 10, 1918.
    (Docket No. 16.)
    Decided April 7, 1914.
    Case by Lucy M. Beattie against the J. L. Hudson Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Sloman & Sloman, for appellant.

      Julius J. Thiede and Frank F. Bumps, for appellee.
    While crossing Grand River avenue at the point of its intersection with Woodward avenue, in the city of Detroit, plaintiff, a pedestrian, came into collision with a horse hitched to one of defendant’s delivery wagons, as a result of which she claims to have suffered the injuries for which she brought suit. At the time of the collision, plaintiff, accompanied by a companion, was proceeding in a northerly direction, while defendant’s horse was being driven in a westerly direction. The driver of the vehicle had been waiting, upon the easterly side of Woodward avenue, for the signal of the traffic officer to permit him to cross. Having received this, he proceeded westerly at a trot. When he reached that portion of Woodward avenue which would have been occupied by the westerly sidewalk if it had been extended across Grand River avenue, the left side or shoulder of his horse and the left thill of his wagon came into contact with plaintiff, who, in crossing, had reached a point just north of the northerly car track on Grand River avenue. Mrs. Davis, a friend of the plaintiff, testified that at the time of the collision she held plaintiff’s arm, and that, when plaintiff was struck and thrown backwards, she (Mrs. Davis) prevented her from falling to the pavement. The horse was brought to an immediate stand.
    As a result of the collision, plaintiff claims to have suffered 'a derangement of her genital organs, resulting in a cystic or fibroid condition of the uterus and appendages, which will necessitate the performance of a serious operation, the effect of which, according to the prognosis of some of the physicians, is not very favorable. Much medical evidence was introduced pro and con upon the question as to whether an injury such as plaintiff described could cause the results indicated by her present condition. There was likewise much evidence introduced upon the question of the negligence or lack of negligence on the part of the driver and as to whether plaintiff was or was not guilty of contributory negligence. The accident happened November 20, 1909, and the trial in the court below occurred in October, 1911.
    Plaintiff recovered a judgment for $6,000, which is reviewed in this court by writ of error.
   Brooke, J.

(after stating the facts). Of the 70 assignments of error, the first 34 deal with the admission or exclusion of testimony. We believe they are without merit as constituting reversible error with one exception. Dr. Sanderson, an expert witness for plaintiff, in answer to a hypothetical question, gave evidence to the effect that in his opinion plaintiff’s present condition was the result of the injury received by her in the accident. Upon cross-examination it developed that the opinion of the witness was based in part upon the facts stated in the hypothetical question, in part upon a physical examination, in part upon the history of the case as related to him by plaintiff, and in part upon what Dr. Oppermann, plaintiff’s attending physician, had told him in a consultation. A motion was thereupon made to strike out Dr. Sander-son’s testimony, which was denied. We think it obvious that an opinion based upon facts or information beyond the personal knowledge of the witness, and not in evidence, should not have been permitted to stand. Connell v. McNett, 109 Mich. 329 (67 N. W. 344) ; La Londe v. Traction Co., 145 Mich. 77 (108 N. W. 365). It may be that the opinion of the witness, based solely upon his personal knowledge or observation and the facts in evidence, would have been the same, but of this we cannot be sure. It would seem clear that his evidence upon this point (strongly contested on the part of the defendant) was largely influential upon and may have controlled the verdict of the jury, which clearly indicates a belief in the theory which received his support.

By its second, eighth, and thirty-first requests to charge, defendant asked the court to instruct the jury as to the burden of proof. The eighth is in part as follows:

“The burden is upon her to satisfy you, by a fair preponderance of evidence, that she was not guilty of contributory negligence, and on this particular time and occasion she was exercising reasonable care and watchfulness to avoid and avert, if possible, a collision or accident.”

Upon this point the court charged:.

“Now it is incumbent upon the plaintiff in this case, as in cases generally, to make out her case by a preponderance of the evidence; to make out her case by the truths that will convince you; to make out her case, to repeat, by a preponderance of evidence. That is to say, she must prove, gentlemen, to your satisfaction, each and every requisite to a recovery by her, and in this connection I wish to say to you that proof of an injury alone will not support her case. There must appear to be by the proofs adduced a concurrence of injury and wrong. That is, it must appear, not only that the plaintiff suffered injury from the acts of the defendant, but that the acts complained of, which resulted in the injury, were done in a manner and at a time, or under circumstances, which render it wrongful or lacking in due regard for the rights of others. Then, in order to recover in this case, plaintiff must make out a case, not only of injury, but of wrong upon the part of the defendant, or the servant acting in the line of his duty. And so it is that the burden of proving by a preponderance of proof rests upon the plaintiff, both of the wrongful act of the defendant, the injury which resulted therefrom to the plaintiff, and the damages she suffered because of that injury. This is all upon the plaintiff to prove. These .essentials must be shown by a preponderance of proof.”

In another portion of the charge the jury is instructed that the plaintiff—

“In avoiding the danger, must exercise the same care; that is, the care and diligence that an ordinary person under just such circumstances would exercise in avoiding a collision with a wagon driven as this was driven across the street.”

This was a correct statement of the law as bearing upon plaintiff’s duty, but we have been unable to discover, anywhere in the charge, an instruction that the burden of proof rested upon plaintiff to show, by a fair preponderance of the evidence, that she had performed that duty. The case was a very close and hotly contested one upon the question of plaintiff’s contributory negligence. We are of opinion that it was reversible error for the court to refuse to at least give the substance of that portion of the eighth request above quoted.

Again the court charged:

“And, should you find that the claim of the witness Mrs. Davis is true, that she and the plaintiff were on the crossing, paying no attention to the passage of vehicles on the street, and while thus inattentive to the situation the plaintiff carelessly walked in front of the horse of the defendant, being at the time reasonably and with care driven across the street, if you find such facts as this to exist in the case, as proven by a preponderance of the proof, in such case the plaintiff would be guilty of contributory negligence and would not recover in this case. It would be in violation of the rule that I have already laid down that it is incumbent upon her to exercise reasonable care and caution in avoiding any accident or danger from passing vehicles.”

This instruction would seem to place upon defendant the burden of showing plaintiff’s contributory negligence, which is just the converse of the true rule.

Many other errors are assigned upon the refusal to charge as requested and to the charge as given. We are of opinion that they require no discussion.

For the errors pointed out, the judgment is reversed, and a new trial ordered.

McAlvay, C. J., and Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


text:
    LECUS v. TURNS.
    1. Cancellation of Instkttments — Ekatjd—Equity.
    A bill to set aside a deed of real property, on the ground of fraud and duress and of mental ineompetency on the part of the grantor, deceased, presents a case for equitable cognizance, notwithstanding that complainants in their bill prayed to have the conveyance canceled as a cloud on their title, or that defendants were in possession.
    2. Same — Dismissal.
    Evidence examined, and held, that, complainants having failed to establish any fraud on the part of defendants, the bill was properly dismissed.
    Appeal from Muskegon; Sullivan, J.
    Submitted October 7, 1913.
    (Docket No. 6.)
    Decided April 7, 1914.
    Bill by Martha Lecus and others against John Turns, Jr., and Jennie Turns for cancellation of a deed of John S. Turns, deceased. From a decree for defendants, complainants appeal.
    Affirmed.

      Turner & Turner, for complainants.

      F. E. Wetmore, for defendants.
   McAlvay, C. J.

Complainants, heirs at law of John S. Turns, Sr., deceased, filed their bill of complaint in this cause against defendants to remove a cloud from the title to certain land in Muskegon county, averring in said bill that their ancestor, John S. Turns, Sr., being the owner in fee of the land therein described, on August 1, 1896, conveyed the same to defendant John S. Turns, Jr.; that the grantor in said deed was at the time mentally incompetent to make such conveyance, and that the same was procured by fraud and duress; that on November 1, 1906, John S. Turns, Jr., by- quitclaim deed, transferred the said premises to his wife, defendant Jennie Turns; that both of these deeds were duly recorded. The bill prays that the deeds be declared void and set aside as a cloud upon the title of complainants, and further prays for general relief.

Defendants answered, claiming the benefit of a demurrer, admitting that the conveyances were made, but denying the allegations of fraud, etc., set forth in the bill, averring that the first transfer was made in good faith for a valuable consideration, in fulfillment of an agreement entered into between the parties in 1890, whereby, in consideration that defendants made a home for the grantor during his lifetime, he agreed to give them the lands described in the deed, and under such agreement they went into possession at once, and have so continued in possession without interruption until the present time; that at the time John S. Turns, Sr., gave the deed above mentioned defendant gave back to him a life lease of the premises, and agreed to support him during his natural life; that afterwards, in 1904, for the sum of $1,000 cash, paid to said John S. Turns, Sr., they purchased all his right in said premises under said life lease and contract. Defendant John S. Turns, Jr., disclaimed any interest in the premises, having deeded all such interest to his wife. Upon an issue joined a hearing was had upon proofs taken in open court. Later a decree was granted, dismissing the bill of complaint. Complainants have appealed from this decree to this court.

The record shows that from the time of the conveyance by the ancestor to them, the defendant John S. Turns, Jr., and his wife, Jennie Turns, up to the time of the transfer to Jennie Turns, these premises in question continued in the open, notorious, and exclusive possession of the defendants, and from that time up to the time of the hearing were so possessed and occupied by said Jennie Turns. The record also shows that upon the hearing both sides introduced all the evidence they desired upon the merits of the case, and that the court decided the case upon its merits and dismissed the bill.

The contention of the defendants was in the court below, and is in this court, that a bill to quiet title cannot be maintained by one out of possession against a defendant in possession. This is answered on the part of appellants by saying that this is not a bill to quiet title, but a bill to set aside a certain deed fraudulently obtained by defendants.

In a recent case this exact question was presented, and this court held that a bill of complaint, containing averments similar to those contained in the bill in this case, was not a bill to quiet title, but to procure the cancellation of an alleged deed upon the ground that it was obtained by fraud, and therefore presented a ease for equitable cognizance. Gragg v. Maynard, 164 Mich. 535 (129 N. W. 723), and cases cited.

In the instant case the averment in this bill is that the deed sought to be set aside and declared void was obtained by fraud and undue influence, and, as in the case above cited, also averred that the deed was a cloud upon complainants’ title, and prayed to have such cloud removed. The contention of defendants, therefore, cannot be sustained.

We have examined all of the evidence presented in the case to the court. It will be of no benefit to the profession to rehearse it in this opinion. The complainants upon the hearing abandoned all claim of undue influence, and failed to establish any fraud on the part of defendants. There is abundant evidence in the record to support the conclusion of the circuit court that the conveyance by the father to his son John Turns, Jr., was made in good faith and for a valuable consideration.

We, therefore, affirm the decree. John Turns, Jr., having disclaimed all interest in the premises, defendant Jennie Turns will recover costs against complainants to be taxed.

Brooke, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


author: Moore, J.

text:
    SOTHAM v. MACOMBER.
    1. Brokers — Fees—Vendor and Purchaser — Contracts.
    Where plaintiff was engaged by defendants to sell a quantity of land at auction for $1,000 and his expenses, and for a stipulated part of all sales in excess of an agreed sum, the trial court correctly held that there could be no recovery for sales not actually made on terms satisfactory to the owners or on terms as offered before the sale.
    2. Same — Evidence—Responsibility of Bidder.
    It was also proper to receive evidence that one of the bidders at the sale was not pecuniarily responsible and was unable to comply with the terms publicly offered and was never in a position to buy the land on which he made a bid.

    3. Evidence — Confidential Communications — Privilege.
    Testimony of a stenographer, furnished at a sale of land by owner to broker, paid for out of the proceeds, as to matters learned as part of her employment, was admissible in an action by the broker for his commissions and was not subject to the rule of privileged communications.

      Error to Montcalm; Davis, J.
    Submitted November 6, 1913.
    (Docket No. 82.)
    Decided April 7, 1914.
    Assumpsit by Thomas F. B. Sotham against Esther Macomber, executrix, and Charles M. Miller, executor, of the estate of Allen Macomber, deceased, and others, for commissions and expenses as a broker. Judgment for plaintiff for less than the claimed amount and he brings error.
    Affirmed.

      Lawrence W. Smith, for appellant.

      N. O. Griswold and S. F. Kennedy, for appellees.

       As to broker’s right to compensation where purchaser procured by him is financially unable to perform his contract, see note in 20 L. R. A. (N. S.) 1168.

   Moore, J.

This action is brought to recover commissions claimed to have been earned by the plaintiff on the sale of various parcels of land in and about Lakeview, Montcalm county, Mich.; some of the sales being consummated and others, it is claimed, being defeated by the actions of the vendors. It is also sought to recover a percentage of the cost of conducting the sale.

The firm of Macomber & Bale owned many thousands of acres of wild and improved lands in and around Lakeview. Mr. Macomber died, and his wife, Esther Macomber, as executrix, and Charles M. Miller, as executor, with the will annexed, assumed the administration of his estate.

It is claimed by plaintiff as follows:

“That plaintiff should undertake to sell all the lands defendants owned about Lakeview.
“He was to arrange for, advertise, and conduct the auction sale of these lands, and was to receive the sum of $1,000 and his expenses in any event. A list price was placed on each lot, and in the event that the total sales amounted to more than the list plus the expenses of sale, including $1,000 for plaintiff, then and in that case such excess was to be equally divided between plaintiff and the defendants; the plaintiff receiving one-half. All expenses were to be borne by the defendants. * * *
“It is claimed by the plaintiff that certain village property was put into the sale in the disposal of which he was to have no interest, except that these lots were to bear their pro rata, of the general sale expense, which, in the event of a surplus', would inure one-half to his benefit.”

This claim is not admitted by the defendants.

“The plaintiff claims also for the repairs necessarily made to his automobile, for parts and tires worn out in the sale service.”

This claim is not admitted by defendants.

After the arrangement was made, an elaborate illustrated catalogue of 90 pages, containing maps, landscape views, pictures of State and other buildings, advertising for sale 111 tracts of land at auction, which was to be held September 6th, 7th, and 8th, and October 4th, 5th, and 6th, was published and freely circulated. This catalogue advertised special low-rate, round-trip excursion rates. The announcement was signed as follows:

“Lakeview, Michigan, July 15th, 1911.
“Estate of Allen Macomber, Deceased.'
“Esther Macomber, Administratrix.
“Charles M. Miller, Administrator.
“Macomber & Bale.
“John J. Bale.
“Sotham & Sons Land Co.
“Carey M. Jones, Auctioneer.
“T. F. B. Sotham, Sale Manager.”

At the close of the catalogue were printed 12 rules and regulations in relation to the sale. The following of which are important in this litigation:

“Rule IV. — Deposit. Whenever the auctioneer shall declare any lot (subdivision of lot, or combination of lots) sold, the buyer or buyers thereof shall forthwith deposit at least ten per cent, of the purchase price with the clerk of the sale as a first payment. Such deposits may be made in currency, bank draft, certificate of deposit or certified check, endorsed to the satisfaction of the clerk. In event any buyer should fail or neglect to satisfactorily settle such first payment, the auctioneer may declare sale void and thereafter resell the premises in question.”
“Rule IX. — Terms: Cash or its equivalent. Half cash with mortgage on land purchased to secure payment of balance will be deemed the same as all cash. Earnest, capable, honest workers desiring to buy on smaller cash payments will be accommodated, but before bidding should arrange for credit with the sale manager. Such sales will be covered by contract. Interest on all deferred payments will be at the rate of six per cent, per annum. Time to suit purchaser within 5-year limit unless otherwise agreed.
“Rule X. — Settlements. The right is reserved to the vendors to declare off any sale or sales not Satisfactorily ' settled for within ten days from date of such sale and to declare any payment or payments under Rule IV forfeited thereafter.
“Rule XI. — Commissions. One commission, of one dollar ($1.00) per acre, on each lot or subdivision of lot sold and satisfactorily settled for, will be paid land agents who comply with the following conditions. Said land agent must attend sale in person. * * *
Such names must be filed at least twenty-four hours prior to clients’ purchase at sale; otherwise the agent will forfeit any commission rights that could accrue hereunder.
“XII. Any and all statements, offers, bids, sales, payments or settlements made by buyer, seller or agents of either, at these auctions are subject to these rules. The right to interpret these rules is strictly reserved to and in the vendors.”

Part of the lands were sold and part were not. The parties to this litigation could not agree as to the compensation due the plaintiff, and this suit was commenced by summons, followed later by a declaration on all the common counts in assumpsit. This was followed by a bill of particulars for “commission due as per contracts earned on the following pieces of real estate.” Then followed the lot numbers and the expense account. The case was put at issue, and early in the trial the respective counsel made concessions that simplified the issues. It was conceded by defendants that the profits on the land sold were $5,485, less the expenses incurred, which, including $1,000 for plaintiff’s salary, amounted to $5,062.32, and that if the lands sold on contract were to be counted as though sold for cash, there was due plaintiff $234.13. This made no allowance for automobile repairs, salaries to the sons of plaintiff for acting as chauffeurs, or for the making of a map; it being the claim of defendants that plaintiff was not entitled to any allowances on these claims, except for the map, and as to that the parties could not agree as to the amount.

The trial judge submitted these two claims to the jury, who returned a verdict of $25 for the map, and $300 for chauffeurs’ salaries and automobile repairs, and a verdict and judgment were entered in favor of the plaintiff for $500.25. The defendants have not appealed. The plaintiff has brought the case here by writ of error.

The first question we will consider is whether the jury should have been allowed to assess some damages because certain village properties should have borne their pro rata share of the general sale expense. It was the claim of defendants that these lands were put in the catalogue, at the request of plaintiff, for advertising purposes only, and that plaintiff’s claim that they should bear part of the expense was untenable. The court was of the opinion that in any event there was no showing which would warrant an intelligent apportionment pro rata of these expenses. Counsel does not suggest in his brief whether it should be upon the basis of values, or acreage, or number of lots. We agree with the judge that there is no basis for intelligently arriving at an amount for this purpose.

The special grievance of the plaintiff is that the court decided, as a matter of law, that he was not entitled to compensation as to various lots of land, where no sale was, in fact, made. It will not be necessary to discuss in this opinion each lot which was offered for sale, and struck off to a bidder, as is done by counsel in their brief. We will take up the most important items, and the ones most favorable to the claim of plaintiff. Those are lot 6 and lot 7.

We now quote from the brief:

“Lot 6 was struck off to Hiley Warner at $22,000 and sold to him. Lot 7 was struck off to the same buyer at $1,800, making a total of $23,800. Before the bidding started, Bale and plaintiff urged Warner to bid; Warner told them he couldn’t comply with the rule as to 10 per cent, down, and defendant Bale told him to bid, and he would take care of him, give him time on the 10 per cent, and on the balance. Warner told him he thought he could interest other parties in it. It was struck off to him in the presence of defendants Bale and Miller.
“Bale told Warner that whatever arrangement he made with Sotham as to time was all right with him. Sotham told him he could have 20 days on the 10 per cent., and 90 days or longer on the balance, to be half cash and half mortgage or all cash. Accordingly Warner gave a check due in 20 days, which satisfied Sotham and Bale, but not defendant Miller, and one due in 10 days was substituted.
“Warner interested Meade, Sandell, Lambertaon, and Chappell in the deal, and they agreed to finance him and give him one-fifth of the profits. Warner told Bale he had interested Lambertson and Chappell, and that they would back him. Then Sotham sent Exhibit 19 to Warner and to the bank at which the check was payable, attempting to change .the terms and get the balance above the 10 per cent, in cash on the same day the check was due.
“Sotham and the vendors went to Belding the day the check was due, and met Warner and his people. The Belding people objected to the change in terms, and offered to pay the 10 per cent, check of $2,380 that day, and to bind themselves to pay the rest within 30 days, reserving the right to give a mortgage of $12,000. This was agreed to by all parties. Then the dispute arose over the form by which this agreement should be set forth. Defendant Miller wanted a bond to guarantee payment of Warner’s bid, and would not sign a land contract setting forth the agreement that was reached, on the advice of his attorney. The check was not protested until after the Belding meeting. At that time they were ready to pay it. The financial ability of the Belding parties up to the $12,000 to be covered by mortgage was conceded on the trial.
“After this deal fell through, Sotham readvertised lots 1 to 7 for the October auction in his circular of September 23d, but they were not offered in that auction. * * *
“The first assignment of error relates to the court’s allowing the witness Warner to answer the following question: ‘Q. What property did you have in Sep-
tember, 1911?’ (the time of the sale). Unless the test of our performance is the buyer’s ability at the time of the sale to pay the purchase price, the question was immaterial, and the answer should not have been received. Under the agreement as to the conduct of the sale, the vendors — that is, the defendants —were to pass on all credits. This would necessarily negative the idea of any guaranty on the part of the plaintiff of the financial ability of any purchaser. Nowhere in the correspondence is any such idea hinted at. In this connection let it be noted from a reading of Exhibit 6, which forms the basis of the agreement, that plaintiff was bound only as a sale manager, and is not held as strictly as a broker would be. His duty consisted in working out a plan and putting it through. He was to run the sale and advertise it. He lacked many characteristics of a broker. But, even if he is considered as a broker, without an agreement on his part to guarantee the financial ability of a buyer, such ability or inability is immaterial in an action for commissions.
“Before citing authorities on this proposition, I desire to call the court’s attention to another matter directly connected with it, viz., that, where a purchaser is presented who is ready and willing to sign a contract in compliance with his offer, the failure of the vendor to require such a contract is no defense to an action for commissions if the sale falls through, and to argue from that the proposition demonstrated by the cases that where buyer and seller enter into a contract of sale, the agent’s commissions are not thereafter defeated by the financial inability of the purchaser to perform. Consequently it is our claim in this case, under this assignment, that Warner is to be treated as having entered into a binding contract to buy, and his financial ability to carry that out being immaterial, the question and answer excepted to should not have been received.”

The defendants do not admit the truth of the statements of counsel as we have stated them, but it may be safely assumed counsel will make as favorable a claim for his client as the record will warrant.

The foregoing claim raises the pivotal questions in the case. Mr. Warner testified as to the extent of his property. When he gave the check referred to, he had not to exceed $100 in the bank. He had some horses and other personal property, all of which was chattel mortgaged. Exhibit 19 referred to in the brief of counsel for appellant, which we have quoted, reads:

“Lakeview, Mich., Sept. 7, 1911.
“Hiley Warner, Orleans, Mich., to Macomber & Bale, Dr. to lots 1, 2, 3, 4, 5, 6, and 7 of land catalogue, $23,800.00. Due this day according to Rule 4 of the sale rules and regulations, a deposit of ten per cent., or $2,380.00, for which, purely as an accommodation to Mr. Warner, he was allowed to deposit a ten-day check, due on or before September 18, 1911. The balance of purchase price, $21,420.00, to be paid in cash on or before September 21, 1911, at the Farmers’ & Merchants’ State Bank of Lakeview, Michigan.
“N. B. Should the ten-day check for $2,380 not be paid on presentation September 18, 1911, the sale will be declared off, and bill rendered for such damages as may have been done. Should the check for $2,380 be paid on September 18, 1911, as agreed the said $2,380 will be held as a deposit under Rule 4, and forfeited as liquidated damages in event the balance of $21,420 is not paid in cash or its equivalent on the date and in the manner hereinbefore provided.”

This exhibit was prepared and sent by the plaintiff, indicating his understanding of the situation. Notwithstanding the impecunious condition of Mr. Warner, the defendants were willing that he should have the benefit of his bid, if he could get the Belding parties to do what it was his duty to do, if the bid was to remain good, and the defendants and Mr. Sotham went to Belding to see what could be done.

The plaintiff claims an agreement was made by all the parties at Belding, and cites the testimony of the attorney, Mr. Hubbell. This witness, after testifying to the conferences held by the parties, and to drawing a contract which was satisfactory to his clients, and to the production by Mr. Miller of papers drawn by the attorney for defendant, closed his testimony as follows:

“Q. They four didn’t get together and agree it was what they wanted and that they would sign it, did they? A. Oh, no; the two sides didn’t get together upon it.”

The conference ended without the parties being able to get together, and later the $2,380 check given by Mr. Warner went to protest.

Following the Belding conference Mr. Sotham prepared and circulated in large quantities a circular letter reading in part as follows:

“Lakeview, Michigan.
“Closing Session. Grand Wind-up.
“Wednesday, Thursday and Friday, October 4th, 5th, and 6th, 1911. T. F. B. Sotham,
Sale Manager.
“Lakeview, Mich., Sept. 23d, 1911.
“Dear Sir:
“Since last writing we 'woke up’ and got busy adding attractive land bargains to those (lots 56 to 111 of catalog) originally set apart for the closing session Oct. 4, 5, and 6 of our Lakeview land auctions. •H H* «Jí
, “Having revived somewhat from the disappointing shock of low prices at the September auction, and adjusted ourselves to the situation, we saw that at the sale prices the lands we had sold were yet the very cheapest really first-class lands in Michigan. * * * Again, certain other buyers were disappointed in their money arrangements, and while the vendors will aid our customers in every consistent way and will not crawfish on any sale, no matter how absurdly low the price, it is obvious that they cannot be cut off from the right to reoffer in our October auction any September lot not settled for.
“Therefore, kindly take notice that in addition to lots 17 and 21 (passed) we will be able to reoffer lots 6, 7, 22, 86, 37 and 38 in our October auction. You will see by the catalog that lot 6 is the celebrated Macomber & Bale home farm made up of lots 1, 2, 3, 4, and 5. * * * Now, if you missed coming to the
September sale remember that we have these lots where you can get another chance at them. * * * [Signed] “Sotham & Sons Land Co.,
“By T. F. B. Sotham.”

The auction sale in October was held, but these lands found no purchaser, and had not been sold at the time of the trial. It is not very important in what way Mr. Sotham is characterized in this transaction, whether he is called sales manager, with a salary and expenses, with the right to one-half the net profits, or whether he is called a real estate broker; in either event he must show either a sale or the production of some one able and willing to purchase according to the terms fixed in the contract between him and the vendors, or to take the property upon terms agreeable to himself and the vendors.

As bearing upon the last of these two propositions, it was entirely proper to inquire into the pecuniary responsibility of Mr. Warner, who was the bidder, and to whom the property was struck off. The record shows beyond any question that Mr. Warner was never in a position to buy the lands; that Belding parties were never present at the sale; and that though, a conference was had with them at Belding, they and the vendors were not able to get together; and that nothing came of the extensive and expensive advertising, so far as securing a sale of these lands is concerned. The result of the ruling of the trial judge is that the plaintiff has been given a judgment for the balance due upon his share of the profits of all sales made, whether payment was made in cash, or partly in cash and partly upon land contract.

One other assignment requires attention. We again quote from the brief:

“13. This relates to permitting Miss Conant, the stenographer furnished the plaintiff, to testify in relation to Exhibit 43, the list she took from plaintiffs book of the list prices, the plaintiff claiming the communication is privileged. As appears on pages 8 and 9 of the record, in plaintiff’s bill of particulars, Miss Conant’s salary was a sale expense to which plaintiff contributed from the surplus. She was therefore as much his stenographer as the defendants’. * * *
“We submit that this communication, or, rather, this taking of information by a stenographer from records to which she is in confidence given access, demands the utmost protection. Its primary quality is confidence in nondisclosure. There can be no doubt that the universal opinion favors its maintenance. Compared with the benefit to a litigated case, if the privilege is abused the relation must terminate. The admission of the testimony was error. Its only purpose could be to dispute plaintiff when he says that his report of the list price of lot 94 contained in Exhibit 34 was an error on his part, unintentional and 'typographical, and that no such list was ever given him.”

We have difficulty in understanding this contention. Mr. Sotham was the sales manager of defendants. Miss Conant was employed as stenographer to assist him in his duties, and was paid out of the expense fund, which, of course, came out of the proceeds of the sale of defendants’ land. She owed no duty to Mr. Sotham that she did not owe to defendants, and it was not the duty of either of them to withhold any information from defendants as to what was being done to promote the sales. We discover no reversible error in the case.

Judgment is affirmed.

McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Bird, and Steere, JJ., concurred.


author: McAlvay, C. J. Stone, J.

text:
    STEVENS v. JACKSON.
    1. Frauds, Statute of — Real Property — Contracts.
    An oral agreement between four persons wbo were Interested In an estate of a decedent, and who entered Into a . written contract to buy the dower and homestead rights of the widow, that one of the four should pay $500 and one-fourth of the amount to be given the widow, was not void under the statute of frauds.
    2. Same — Presumptions.
    At most only a presumption existed that the purchasers had equal interests and the presumption was rebuttable.
    S. Same — Consideration.
    Under conflicting testimony relating to the oral agreement, the issue was one for the jury and there was sufficient evidence of consideration to support the contract.
    McAlvay, C. J., dissenting.
    Error to Allegan; Cross, J.
    Submitted November 13, 1913.
    (Docket No. 120.)
    Decided April 7, 1914.
    Assumpsit by Carlotta Stevens and others against Charles Jackson for money due, etc. Judgment for plaintiffs. Defendant brings error.
    Affirmed.

      Charles R. Wilkes, for appellant.

      Clare E. Hoffman, for appellees.
   McAlvay, C. J.

(dissenting). Plaintiffs brought suit,' in an action of assumpsit, against defendant to recover the sum of $500, which they claim he by oral agreement promised to pay them. This suit resulted in a verdict and judgment -for plaintiffs. The case is brought here for review upon a writ of error by defendant. In order to have any understanding of this suit and the relations of these parties to each other in the transaction out of which it arose, it will be necessary to make a statement of the facts.

All of the parties to this suit are the sole heirs at law of William Jackson, who died testate June 21, 1910. Besides these children, there survived him a widow, who was their stepmother, and who elected to take her statutory dower and homestead rights in his real estate as his widow. In 1905 William Jackson had conveyed to defendant Charles Jackson, his son, by warranty deed, 40 acres of land in Monterey township, Allegan county, Mich., known as the “wood lot," for the cash consideration of $2,500. His wife, Lucy Jackson, refused to join in the deed, and it was provided therein that the conveyance was made subject to her dower rights. At the time of his death, William Jackson owned real estate consisting of a farm of 102 acres in Monterey township and a house and lot occupied by him as his homestead in Hopkins village, Allegan county. The farm was appraised at $9,000 and the homestead at $1,800. The widow claimed dower rights in the farm, in the 40 acres deeded to defendant, and homestead rights in the house and lot at Hopkins. The total valuation of the three parcels was between $12,000 and $13,000.

On August 21, 1910, the four heirs of William Jackson and his widow met at the probate office at Allegan, and made a settlement, and entered into an agreement in writing whereby these heirs purchased all of the dower and homestead rights of the widow in these three parcels of land. The material portions of this agreement read as follows:

“This agreement entered into this 22d day of August, 1910, by and between Lucy M. Jackson, party of the first part, and Charles S. Jackson, Minnie Opperman, Carlotta Stevens and Mary B. Knoblock, heirs at law of William Jackson, deceased, and devisees under his will, parties of the second part: Said party of the first part for and in consideration of the covenant herein undertaken by second parties doth hereby release unto said second parties all her right, title and interest in and to the estate of William Jackson, deceased, either under the will of said William Jackson, deceased, or under the statute as his widow and does hereby convey to said parties of the second part all her interest in and to the following described real estate, to wit, [giving description of premises], as dower homestead rights, or otherwise. To have and to hold the same forever. * * * [Omitting the agreement on the part of the heirs to sell and set over to the widow the household furniture and certain personal property and to lease the homestead to her for five years.] Second parties further agree to pay to the first party the sum of eighteen hundred (1,800) dollars on or before the first day of June, 1911, with interest at five per cent, after due. * * * ”

This instrument was duly executed, witnessed, and acknowledged by all the parties. Its terms and conditions were in all respects performed. The four heirs of William Jackson borrowed from the Hopkins State Bank the sum of $1,800, giving their joint and several promissory note for that amount, and they later paid said note out of the proceeds from the sale of said farm; each paying one-fourth of said $1,800. The foregoing statement of facts is undisputed.

The dispute in this suit arises out of the claim made by the three plaintiffs that on the same day, and shortly before the dower and homestead rights of the widow, Lucy Jackson, were sold and conveyed by her to the four children equally, as appears from the writing above referred to, a verbal agreement was entered into by which it is claimed Charles Jackson, defendant, agreed to pay, for the release of the dower interest in his 40 acres, $500 of the purchase price of $1,800 and one-fourth of the balance of $1,300. Defendant, Charles Jackson, denied that he made any verbal agreement with the plaintiffs or any of them. The court, over objections of counsel for defendant, allowed plaintiffs to testify at length relative to this agreement.

At the close of plaintiffs’ case, a motion was made by counsel for defendant for a directed verdict, upon several grounds, viz.: Because the claimed verbal agreement tended to contradict the written instrument which later all parties entered into; because the verbal agreement was within the statute of frauds relating to the sale of an interest in lands; because it was without consideration; because there was a misjoinder of plaintiffs; the action arising upon the agreement claimed to have been made was several and not joint. This motion was denied by the court, and an exception taken. The trial of the cause proceeded, and the case was submitted to the jury upon the charge of the court.

The errors assigned and relied upon relate to the refusal of the court to grant the motion for a directed verdict in favor of defendant; to the admission of certain testimony; to the refusal to give certain requests to charge; and upon certain portions of the charge as given. The most important contention on the part of appellant is that raised, among others, as a ground for an instructed verdict, namely, that this verbal agreement related to a sale of an interest in lands and was within the statute of frauds requiring such agreements to be in writing. At the time of making this verbal agreement, these parties were about .to, and did later on the same day, acquire by purchase all of the dower and homestead interests of their stepmother in all of the real estate of their ancestor in which she was interested. By this claimed agreement defendant was to pay $500 for the widow’s dower interest in the 40 acres he had purchased from his father, and each was to pay a one-fourth of the balance of $1,300, and plaintiffs testified that they were not purchasing, and did not know until after the commencement of this suit, that they had purchased any interest from the widow in defendant’s land. Each of the plaintiffs testified that, after this suit was begun, she executed and tendered to defendant a quitclaim deed of all interest in the 40 of defendant. This agreement, if made, was in contemplation of a settlement with the widow and a transfer of all her interest in this property to these parties which was made later on the same day, and which conveyed to each one of them a one-fourth of the widow’s interest in all of this real estate, including defendant’s 40 acres, for which each paid one-fourth of the purchase price agreed upon. That each received an interest in lands by this conveyance is not disputed, but it is contended that the agreement upon which suit was brought was not between the parties to the conveyance but only among purchasers. That agreement, however, contemplated acquiring an interest in real estate by defendant, and what was done in furtherance of it will be presumed to have been intended; and, having each acquired a quarter interest in all the widow’s dower and homestead rights in all the real estate, it will be presumed that they contemplated the only possible means whereby defendant could acquire the dower interest in his land, which would be by transfer to him from each plaintiff of her interest therein.

We do not find in these facts any performance which would satisfy the statute, and therefore must conclude that the verbal agreement was within the statute of frauds and void. The court should have directed a verdict in favor of defendant upon that ground. It will not be necessary to consider other questions presented.

The judgment of the circuit court should be reversed, and, as this conclusion would dispose of the entire case, a judgment should be entered in this court in favor of defendant and against plaintiffs.

Stone, J.

I am unable to agree with the result reached by Justice McAlvay in this case. In my opinion the contract set forth in the special count of the declaration, as well as the one claimed under the common counts, and testified to by the plaintiffs, was a valid oral contract, and it did not in any manner alter, contradict, or vary the terms of the written agreement by which the parties, both plaintiffs and defendant, purchased from Lucy M. Jackson her interest in and to the estate of William Jackson, deceased, “either under the will of said William Jackson, deceased, or under the statute as his widow,” and whereby she conveyed her interest to the parties to this suit. The agreement sued upon in no way affected the agreement of purchase from the widow, but was one whereby the plaintiffs and defendant agreed how the purchase money should be paid, as between themselves. It is the claim of the plaintiffs that, in consideration of their agreement to pay a portion of said purchase money, the defendant agreed that, of the $1,800 to be paid, he would first pay $500 of said sum, in consideration of his interest in the 40 acres (he having before purchased the same from William Jackson, subject to the dower interest of Lucy M. Jackson), and further that he would pay one-quarter of the remainder of $1,300; that he failed to do this, and only paid one-quarter of the whole sum of $1,800; and that, he having failed to pay as he agreed to do, he is indebted to them in the sum of $375, which they jointly had paid for him, as joint makers of the note.

In my opinion the agreement claimed by the plaintiffs was not within the statute of frauds, and did not relate to a transfer of an interest in lands, within the meaning of that statute. The conveyance of lands was made by a third party to the parties to this suit, and we are here dealing with a claimed contract between the latter as to how the purchase money should be paid, and the portion to be paid by each.

At most there was a mere presumption that the interest of each purchaser was equal, and that presumption was rebuttable. Campau v. Campau, 44 Mich. 31 (5 N. W. 1062) ; 38 Cyc. p. 74. As tending to show the interest of each, it would be competent to show the amount of purchase money paid by each. This would not infringe or contravene the statute of frauds.

Here a question of fact was presented as to the amount each of the parties agreed to contribute of the purchase money. The plaintiffs claim that, by reason of his interest in the property, the defendant agreed to pay $825 of the $1,800. This he did not do. They, having jointly paid for him, and for his use and benefit, $375 of that sum, seek by this action to recover it back. It would seem that there was a sufficient consideration for such promise, if made, and that such contract was made jointly with the plaintiffs. In my opinion a question of fact only was involved, and it was properly submitted to the jury.

The record showing no reversible error, the judgment of the circuit court should be affirmed.

Brooke, Kuhn, Ostrander, Bird, and Steere, JJ., concurred with Stone, J. Moore, J., did not sit.


author: Kuhn, J.

text:
    HAPKE v. DAVIDSON.
    1. Contracts — Construction—Implied Contracts — Services.
    Under a written agreement of plaintiff to supervise the removal of a beet sugar factory from one location to another, and to rebuild the factory and assist in its operation for a period of months, plaintiff to furnish an engineer to superintend the erection of the machinery and one for the erection of the building and to pay wages, salary, and expenses and furnish architect’s plans, etc., with a guarantee that the plant should operate as economically and efficiently as before, in consideration whereof defendant promised to pay $15,600, as stated, in detail, in the agreement, which also provided that both parties should use their best efforts to complete the removal and reconstruction of the factory and to promote its successful operation up to February of the following year, and that plaintiff should assist in the operation of the factory up to that time, services and labor of the plaintiff in securing a site, negotiating for tracks and rates on shipments and purchases, and securing acreage from farmers to grow beets were not included by the terms of the contract.
    2. Same — Interpretation.
    It is a rule of construction at? contracts that the court should endeavor to determine the intention of the parties, and should examine and give effect to every word or phrase, so far as practicable.
    3. Same — Admissions—Weight oe Evidence.
    But an admission of the plaintiff contained in a letter, that he did not intend to compel the defendant to pay for extra services, if defendant, as he had previously promised, would assist him financially, taken with the presumption of fact that services performed shpuld be considered as included by the provisions of the contract, held, to require the court to set aside the verdict and judgment as against the weight of evidence.
    4. Evidence — Written Agreement — Parol Evidence.
    Negotiations prior to the execution of a contract, being merged in the written agreement, the trial court, in an action of assumpsit for extra services performed by plaintiff, correctly excluded correspondence tending to show that the extra items were intended to be covered by the contract; and evidence of a prior conversation was also incompetent.
    5. Amendments — Bill of Particulars — Limitation of Actions.
    Where the plaintiff, without obtaining leave of the court, filed an amendment to his bill of particulars and thereby added items of a later date, claimed by defendant to be barred by limitation, and where the trial court denied a motion to strike the amendment from the files, based on the objection that the items added were claimed to be new and distinct and because the statute of limitations had run against them, the court acted within its discretion in permitting the amendment to stand.
    6. Frauds, Statute of — Assignment—Implied Contract.
    Where it was claimed by the defendant that services for which plaintiff claimed compensation would be a liability against another party, a corporation, which had been incorporated to take over the factory erected under the agreement, the contention that the action would be barred by the statute of frauds was not tenable.
    7. Set-Off and Counterclaim — Parties—Corporations.
    An indebtedness to a corporation, of which the defendant in the action was the controlling stockholder, could not be used as an offset against plaintiff’s claim for an amount due from the individual.
    Error to Bay; Collins, J.
    Submitted November 24, 1914.
    (Docket No. 27.)
    Decided April 7, 1914.
    Assumpsit by Theodore Hapke against James Davidson for services performed. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Hall & He Foe, for appellant.

      Joslyn & Houghton, for appellee.
   Kuhn, J.

The defendant, James Davidson, prior to February 20, 1904, was interested in a factory at Dresden, Ontario, for the manufacture of beets into sugar. The operation of the factory not being suecessful in that locality, he made a contract with the plaintiff, Theodore Hapke, who was an expert agriculturist, to remove the same, which contract in terms was as follows:

“This agreement, made February 20th, 1904, at Detroit, Michigan, between Theodore Hapke, of the city of New York, party of the first part, and James Davidson, of West Bay City, Michigan, party of the second part, Witnesseth:
“1. Said party of the first part hereby agrees to supervise the removal of the Beet Sugar Factory of the Dresden Sugar Co., Ltd., from its present location at Dresden, Ont., to Janesville, Wis., or such other place as the said party of the second part may designate, and also the re-erection and reconstruction of said factory at the place to which it shall be so removed and to also assist during the operation of the same up to February 1st, 1905.
“2. Said party of the first part also agrees to furnish for such work a first class engineer to superintend the erection of the machinery of said plant, and also another first class engineer to supervise the re-erection of the building thereof; both said engineers shall devote their entire time and attention to said work until it is all accomplished and complete, and said factory in successful operation; their said services .shall continue during the operation of said plant when so removed and re-erected, but not later than February 1st, 1905.
“3. Said party of the first part agrees to pay all the wages, salary and expenses of the said two engineers, also his own office expenses of every nature and description, including telegrams and correspondence, and all traveling expenses; and he further agrees to furnish full details, plans and specifications for the removal and re-erection of said plant as aforesaid, that no material changes shall be made therein without the approval of said party of the second part; and said party of the first part also guarantees that said factory shall be so re-erected in its new location that it can be there operated as economically and efficiently as heretofore.
“4. In consideration of this agreement and the performance thereof by said party of the first part, the said party of the second part hereby agrees to pay him, in full, for all services and expenses on account of said work, the sum of fifteen thousand six hundred dollars, as follows:
“One thousand dollars at the signing of this agreement, and the balance in equal monthly installments of thirteen hundred and twenty-seven dollars and thirty-three cents each, on the first day of each and every month thereafter, commencing April 1st, 1904, until said balance is paid.
“5. It is understood and agreed that said party of the second part is to pay for all the work, labor, freight and other expenses attendant upon such removal and re-erection of said plant, except such expenses as are herein specified to be borne by said party of the first part.
“6. It is further agreed that said party of the second part will use his best endeavors to expedite said work of removal and re-erection, and that both of said parties hereto will faithfully use their best efforts to accomplish the removal of said factory, its re-erection as aforesaid, and its successful operation in its new location up to February 1st, 1905.
“In witness whereof, said parties have hereunto set their hands the day and year first above written.
[Signed] “Theo. Hapke.
[Signed] “James Davidson.”

At the time of the execution of this contract, the defendant delivered to the plaintiff the following writing:

“To Whom It May Concern:
“Mr. Theodore Hapke has been employed by me to superintend the removal of the beet sugar factory now on premises near Dresden, Ontario, to Janesville, Wisconsin, or such other place as I may designate; he is authorized to make all necessary arrangements respecting the entry of the property into the United States custom house, and to act for me as my agent in the re-erection of said factory at the place which I may designate; and to do what may be incidentally necessary to the proper removal and re-erection of said factory.
“James Davidson.”

The factory was removed, re-erected, reconstructed, and operated at Janesville, and the plaintiff performed all of the work required of him under the agreement of February 20, 1904, and the defendant paid, as contracted, the entire sum of $15,600. It is the claim of the plaintiff, in practically the language of a request to charge as given by the court, that:

“After February 20, 1904, he rendered certain services and expended certain moneys in connection with securing a site for the factory at Janesville and negotiating with the railroad companies for joint railroad tracks, and in securing acreage for beets from farmers in the vicinity, and in the payment of agents’ commissions to solicit the farmers to grow such beets, and in negotiating with the railroad companies for securing rates on machinery shipped to Janesville, and upon sugar shipped from the factory at Janesville, and in negotiating with railroad companies for rates upon coal, limestone, and other supplies required in the operation of such factory, and in negotiating with railroad companies in regard to demurrage charges on cars of coal and beets, and in going to Milwaukee in regard to the entering of the machinery into the country from Dresden, and in going to Milwaukee and Washington to secure the release of certain bonds given by the defendant in connection therewith, all of which said services and expenditures of money plaintiff claims are extra services and expenditures not included in the written contract of February 20, 1904, for which the defendant should compensate and reimburse him; and the plaintiff claims that he performed these extra services and made such disbursements at the request of the defendant, and upon the promise of the defendant to pay him well for such services, and to reimburse him for such expenditures, and that the plaintiff called the defendant’s attention to such services and expenditures from time to time while the services were being performed and the expenditures were being made, and that the defendant told him he would pay him for such services and reimburse him for the expenditures, but he did not do so, nor did he refuse to pay him for such services and reimburse him for such expenditures, nor deny liability therefor, but said to the plaintiff, in substance, ‘What is a few thousand dollars to you if I help you to make several thousand dollars by going in with you in the building of sugar beet factories?’ and the plaintiff claims that he did not relinquish his right to be paid any money for such services and disbursements, nor did he agree to be compensated for such services and disbursements by the defendant’s promise, if carried out, to interest himself with the plaintiff or back the plaintiff in the removal of beet sugar factories, but that the plaintiff did forego presenting a bill or insisting upon payment in money at the time of such conversation with the defendant for such services and disbursements, relying upon the defendant’s promises that he would back him up or help him out with a moderate amount of capital in the removal of sugar factories, but that defendant failed and refused to interest himself with the plaintiff or furnish a moderate amount of capital in the removal of the sugar factories, and that when defendant did so refuse and fail to interest himself with the plaintiff in the removal of sugar factories, or invest a moderate amount of capital, the plaintiff presented a bill for the extra services claimed to have been performed by him, and for certain disbursements, and demanded payment therefor in accordance with defendant’s promise to pay.”

The claim of the defendant, as given in the charge of the court, was as follows:

“The defendant denies entirely that he is indebted to the plaintiff in any sum for any such claimed service or expenditure, insisting that if such services were rendered and moneys expended, all of which he questions in amount, they were rendered and expended by the plaintiff without any request upon the part of defendant that plaintiff should do so, and without any knowledge that plaintiff ever expected to be compensated or reimbursed therefor, but rather that plaintiff understood that such service and expenditure were a part of the agreement of February 20, 1904, which he was called upon to perform and do.”

The issue thus formed being submitted to the jury, a verdict in the sum of $1,917 for the plaintiff was returned. Judgment being had thereon, the cause was brought to this court by writ of error.

The numerous assignments of errors have been conveniently grouped by counsel for defendant, and under appropriate headings have been discussed by counsel in their briefs:

Does Contract of February 20th Include by its Terms Items of Plaintiff’s Claim? It is the contention of the defendant that the economical, efficient, and successful operation provided for in section 3 of the contract necessitated the securing of a site where railroad tracks could be secured, sufficient acreage of beets, reasonable freight rates upon machinery and material shipped in, coal, limestone, and other supplies required, and upon the manufactured product shipped out, and all things which must receive attention necessary to the successful operation of a manufacturing plant, and which tend to affect the profits of the owner, and that the provision in the contract that the plaintiff would use his best efforts towards the successful operation of the factory up to February 1, 1905, called upon him to do all the things he claims as extra services. It is the contention of the plaintiff that the agreement provides simply for an engineering and mechanical proposition, and that the matters in controversy are incident only to the success of the enterprise, and not to the successful operation of the factory. Having in mind the well-established rule that in construing a contract the endeavor should be to arrive at the intention of the parties, and that in doing so all its parts must be examined and effect given to every word and phrase, if practicable (Plano Manfg. Co. v. Ellis, 68 Mich. 101 [35 N. W. 841]), we are of the opinion that the contention of the plaintiff and the conclusion that the trial court came to is the correct one. The contract did not require, and the plaintiff did not undertake to guarantee, that the enterprise should be a success and the venture profitable. He did contract to supervise the mechanical part of removal and reconstruction so that the machinery would operate as economically and as efficiently as before, up to February 1, 1905. That it did so is unquestioned. We do not think that the items of plaintiff’s claims submitted to the jury can be said to be covered by the terms of the agreement.

No Implied and No Express Agreement Other Than in Contract February 20, 1914. It was claimed by the plaintiff and denied by the defendant that the services performed by plaintiff for the recovery of which this suit is brought were done at the instance and request of the defendant, with his knowledge and approval, for his special benefit, and were received by him. The issue thus made was submitted as a question of fact for the determination of the jury. It is urged by the defendant that it is clear from the correspondence of the parties that it was the understanding of the plaintiff that the services for which compensation is now claimed came under the contract, and that no claim was made by him for extra services until April 5, 1905, when he wrote a letter, in which he said:

“As to the bill for extra services, I did not intend to make you pay for any extra services rendered, since according to your promise given more than a hundred times, you would help me out at any time with a moderate amount of capital in new deals, but you now flatly refuse to do anything for me. This shows that you do not appreciate for a minute the hard work I did for you, and instead of canceling the charge for extra services I now request and demand remittance.”

It is urged that this letter shows that the services rendered were voluntary, and with no expectation at the time of rendition that they were to be compensated for, and that it was only the failure of the defendant to carry out another arrangement to assist plaintiff in other factory deals that caused him- to make his claim for extra services. It is plaintiff’s contention that he expected compensation at the time the services were rendered, and that it was agreed upon that he should have it; that the letter simply shows that he felt kindly towards the defendant, and did not intend to make defendant pay for these services in case their business relations continued. We are strongly impressed, however, that the significant statement in the letter of April 5th showed the true intent of the plaintiff not to charge the defendant for the services when they were rendered, especially when considered in connection with his oral testimony when he said, “My intentions were not to charge him if he would do what he promised to do for this work,” and also the fact that he kept no record of the time spent in extra services. It is also to be presumed, not conclusively, but as a matter of fact, that whatever services plaintiff rendered were rendered in performance of the contract. The services might have been rendered in performance of the contract, and the statement in the letter, “I did not intend to make you pay for extra services rendered,” etc., we think, is clearly an admission that when they were rendered they were rendered in performance of the contract. The presumption referred to and the letter and corroborating evidence are so persuasive, to our minds, that we are of the opinion that the circuit judge should have granted the motion for a new trial on the ground that the verdict was clearly against the weight of the evidence. As this conclusion necessitates sending the case back for a new trial, we shall consider some of the other questions raised on this appeal.

Proofs Affecting Making Contract February 20, 1904. The circuit judge held and instructed the jury that there could be no recovery for services performed or the expenditures made prior to February 20, 1904, for the reason that all these matters had merged in the contract. The defendant offered in -evidence certain correspondence between'the. parties prior to that time,- and also endeavored to show conversation which took place between the parties in the office of the attorney at the time the contract was made. In the letter of February 13, 1904, written by the defendant to plaintiff at Janesville, he said, after discussing the removal of the factory in question:

“And of course we would also want it distinctly understood that we could not allow anything for any promotion, expenses or anything of that kind.”

It is clear that the purpose of offering this letter and a draft of the proposed contract made previous to the meeting in the attorney’s office, when the agreement was actually signed, was to vary the terms of the contract as construed by the court, and was an effort to show that the claimed items for extras were intended to be within the terms of the agreement. The rulings of the court in excluding these writings were proper. It must be assumed that the contract as made was the culmination of the negotiations between the parties, and, its terms not being ambiguous, these writings were inadmissible. Eaton v. Gladwell, 108 Mich. 678 (66 N. W. 598); Mouat v. Montague, 122 Mich. 334 (81 N. W. 112); 17 Cyc. p. 596. The evidence of the conversation had before the contract was also inadmissible. Cohen v. Jackoboice, 101 Mich. 409 (59 N. W. 665); R. K. Carter & Co. v. Weber, 138 Mich. 576 (101 N. W. 818); Wallace v. Kelly, 148 Mich. 336 (111 N. W. 1049, 118 Am. St. Rep. 580) ; International Text-Book Co. v. Marvin, 166 Mich. 660 (132 N. W. 437).

Bill of Particulars and Amendment Thereto. Without leave of the court, on June 6, 1911, plaintiff filed an amendment to his bill of particulars, by which amendment the limit of 1904, fixed as to several items, was advanced one year, making the same 1905. On June 11, 1911, the defendant entered a special motion to strike such amendment from the files, for the reason, in substance, that the same' was filed without leave of court, and that it covered new and distinct claims of plaintiff against defendant after the statute of limitations had run, and after the taking of the testimony of several witnesses. The hearing on this motion was postponed until the trial of the cause, at which time the court held the amendments properly made. The mere change in the date did not, in our judgment, introduce a new cause of action, and, under' the rule announced in Pratt v. Montcalm Circuit Judge, 105 Mich. 499 (63 N. W. 506), unless this is the result, the amendment is proper. As stated in 1 Enc. PI. & Prac. p. 564:

"The test is whether the proposed amendment is a different matter, another subject of controversy, or the same matter more fully or differently laid to meet the possible scope and varying phases of the testimony.”

See, also, Connell v. McNett, 109 Mich. 329 (67 N. W. 344) ; City of Detroit v. Wayne Circuit Judge, 125 Mich. 634 (85 N. W. 1); Jones v. Pendleton, 151 Mich. 442 (115 N. W. 468); Croze v. Land Co., 153 Mich. 363 (117 N. W. 81). The allowance of an amendment to the bill of particulars is discretionary. City of Battle Creek v. Haak, 139 Mich. 514 (102 N. W. 1005).

Statute of Frauds. The Rock Island Sugar Company was incorporated on March 4, 1904, for the purpose of owning and operating the Janesville plant. It is claimed that compensation for any services or expenditures as claimed by plaintiff, if resting on an implied contract, would create a liability against the sugar company, and not against the defendant, as the benefit would accrue to it, and not to him, and if this is true, the action would be barred by the statute of frauds. The theory upon which this case was submitted to the jury was that the services rendered and the expenditures made were made at the request of the defendant. There is nothing in the record to show that the items of plaintiff’s claim arose otherwise than through plaintiff’s dealings with the defendant, with whom he had his correspondence and conversations. We are not impressed that there is any merit in this claim.

Set-Offs. The claim to set-offs arose from the following writing:

“Me. M. R. Osbuen,
“Mgr. Rock County Sugar Co.,
“Janesville, Wis.
“Dear Sir:
“I herewith offer to buy your total output of dried beet pulp and dried molasses beet pulp manufactured by you during the beet slicing season of 1904 and 5 at the price of $12.00 per ton in bags f. o. b. cars Janesville.
“Yours truly,
“Theo. Hapke.
“Accepted:
“Terms (20) twenty days net cash.
“Rock County Sugae Company,
“By M. R. Osbuen, General Manager.
“James Davidson.
“Theo. Hapke.”

In a notice of set-off it was defendant’s claim that plaintiff owes, as a result of this contract, $2,526.14 for beet pulp delivered by the sugar company to plaintiff. It is plaintiff’s position that he also has a claim against the sugar company as an offset to this claim. It quite clearly appears from the record that plaintiff’s dealings with the sugar company were separate and distinct from his business relations with the defendant. The fact that the defendant owned practically all of the stock of the sugar company did not alter the fact that it was a separate and distinct legal entity. It was not a party to this litigation. Plaintiff could not urge his claim against the sugar company in this litigation, and so its claim could not be offset against plaintiff’s present claim.

Other assignments of error relate to the charge of the court, admission of testimony, and limiting cross-examination. We are convinced that there is no merit in these contentions, as no prejudicial error was committed.

However, for the reason stated, the case will be reversed, and a new trial granted.

McAlvay, C. J., and Brooke, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.