author: Brooke, J.

text:
    DENTON v. BOOTH.
    1. Sales — Uniform Sales Act — Completed Sale — Question for Jury.
    Where defendants orally agreed to purchase a number of horses from plaintiffs at a cash price, and, pending examination of papers as to the breeding of some of them, defendants were given possession, when a dispute arose over the papers and the purchase price was never paid, •the court below, in an action to recover, was not in error ' in submitting to the jury the question as to whether there was a completed sale under the uniform sales law (chapter 228, 3 Comp. Laws 1915).
    2. Amendments — Pleading—Form of Action.
    Although plaintiffs commenced their action in assumpsit, the court below was not in error in regarding the action as one in tort, in view of the liberal provisions of the statute which permits amendments even in the Supreme Court.
    3. Partnership — Registration—Certificate—Statutes.
    Although it has been held that the members of a copartnership who have not complied with the provisions of Act No. 164, Pub. Acts 1913 (3 Comp. Laws 1915, § 6354 et seq.'j, may not prosecute an action under a contract, held, that the effect of the statute should not be extended to actions founded on tort; it being in derogation of common law rights. •
    Error to Chippewa; Fead, J.
    Submitted January 30, 1918.
    (Docket No. 30.)
    Decided July 18, 1918.
    Case by William L. Denton and another, copartners as W. L. Denton & Son, against Arthur Booth and others for the conversion of certain horses. Judgment for plaintiffs. Defendants bring error.
    Affirmed.

      John A. McMahon and Herbert L, Parsille, for appellants.

      Davidson & Hudson, for appellees.
    The plaintiffs in this case were copartners- doing business under the firm name of W. L. Denton & Son and so described themselves in the declaration. Defendants are likewise copartners. Both plaintiffs and defendants were engaged in the buying and selling of horses. On April 1, 1916, plaintiffs were in possession of 13 horses which had been the subject of negotiations between themselves and defendants for some time. With reference to what occurred on that day, plaintiff Ernest L. Denton testified:
    “They looked them over carefully, took each horse by itself out of the barn in the open air. I finally agreed that I would accept $1,900 for the entire lot. It was to be a spot cash deal.

      “Q. What if anything was- said at that time about the delivery of the horses?

      “A. Why, the transaction took place on Saturday after banking hours. They came to my barn and we came to an understanding for $1,900 for the horses and they insisted that they should take part of the horses which I submitted to and they did. I was to furnish certain papers for these horses and on turning over the papers they were to pay me $1,900. They were to meet me in the Central Savings Bank after supper that evening, which was done. They gave me a check payable to A. Denton, and I objected to the check at the time, and they said ‘keep it, we want to have Judge Holden look over the papers. We know nothing about the breeding of the horses.’ I replied ‘Well, you can keep the check, too. I care nothing about a check in this way.’ They said, ‘We will pay the $1,900 as soon as Judge Holden looks over the papers.’ * * *
    “Q. And in the evening, before making payment, what did they require about the examination of the •papers?

      “A. They required that I should turn over the papers to them and wait until Monday morning to let Judge Holden look at them as they didn’t know anything about the breeding of horses themselves.”

      Defendant Booth testified in part as follows:
    “I said: ‘Here, now, before we go any further is everything O. K. on those horses?’ First, I asked him if he owned the horses and he said he did; that there wasn’t a cent against them. Then I told him that we didn’t want to have any baby plays, we wanted to know if the papers were right, if everything was right before we would go any further, and he answered me that he had everything because we claimed that the horses * * *
    “I asked him if he had all the necessary papers, also if he owned the horses. He said he owned the horses and there wasn’t a cent against them and he had all the necessary papers for the stallions and the mares. At that time there was nothing said about the exact minute he was to get his money. Simply the price agreed upon, $1,900. * * *

    “We met Denton again on Monday and I spoke to him along the lines of the papers. I told him of the conversation I had with Royce and I spoke to him about the papers and the transfers and he took some of the papers out of his pocket and he wanted to transfer the horses to us on the side of the building there, on the corner of Oka and Spruce streets, and we suggested that we had better go to somebody else and have it done in the proper way. He was going to make the transfers and everything there, on the side of the building. There was nothing to that, he said. So at that time we suggested that he go to Holden’s office and come to us with proper papers, and we would give him his check for the $1,900.
    “Right after the conversation we, Denton, Levine, and myself, went to Holden’s office. When we went to Holden’s office Denton had the papers and he talked to Holden along the lines of getting the papers. Holden looked the papers over and said, ‘The papers for three of them — the three mares, are all right but for the two stallions, the proper transfers have not been made to Denton,’ and that he could not transfer them to us until they had been transferred to him, and he produced a form at that time with some signatures on it and Holden turned it down. * * *

      “Q. Well, you didn’t personally say anything about the papers? Whether they were good or bad?

      “A. I don’t care what was said — anything about the papers—

      “Q. Well, did you or didn’t you?

      “A. Why, I didn’t say very much about the papers.

      “Q. Well, what did you say about the papers, if you said something?

      “A. Well, I don’t think I said anything about the papers.

      “Q. Well, Ike did, then, didn’t he?

      “A. Why, he just looked the papers over and—
    ' “Q. I am talking about what Ike said about the papers, if you didn’t say anything?

      “A. I don’t know what he said about them.

      “Q. Did he say something?

      “A. I don’t know, I’m sure.

      “Q. Did Ike say he was satisfied with the papers that night?

      “Q. Well, you don’t know about that?

      “A. Yes, sir.

      “Q. Said he was satisfied?

      “A. Yes, sir. * * * (

      “Q. Well, then, it was definitely arranged that you would pay him the money Tuesday?

      “A. Yes, sir.

      “Q. That was absolutely definite?

      “A. Yes, sir.

      “Q. And the deal was closed?

      “A. And he would return the check for $500.

      “Q. And that was the end of it, there wasn’t anything more to do except to turn over the money?

      “A. As far as I remember now.

      “Q. Now, did you accept those papers on your own judgment or on Ike’s?

      “A. On Ike’s. '

      “Q. What?

      “A. Well, on Ike’s judgment more than on mine. ^ $ H*

      “Q. Then, after talking with Denton at the bank you knew that same evening there were some papers missing which ought to be there, did you?

      “A. These transfers?

      “Q. Yes,

      “A. Yes, sir.

      “Q. You knew they were missing this same evening?

      “A. Yes, sir.”

      Isaac Levine, another defendant, testified:
    “Afterwards we accepted the papers and closed the deal. I did not look those papers over and accept them from my own knowledge of the papers, I accepted them from Mr. Denton’s knowledge. He said that the papers were all right and that he would furnish everything. * * *

      “Q. And I understand you to say that in some one of the talks on Monday or Tuesday it would be perfectly satisfactory if Mr. Denton got these transfers on the stallions within 30 or 60 days?

      “A. Yes, sir.

      “Q. And then, before the sale was had, your understanding was that Mr. Denton was to get the transfers?

      “A. Yes, sir.

      “Q. And any time within 30 or 60 days would be sufficient?

      “A. Would be sufficient, providing he promised to do it?

      “Q. Did he promise to do it?

      “A. No.

      “Q. Then I understand you that he didn’t promise to do it?

      “A. He didn’t promise later in the week, but he promised on Saturday night.

      “Q. ■ Then do I understand on Saturday night he promised to get the transfers?

      “A. Yes, sir.”
    It appears that after the talk on the evening of the first of April, which was Saturday, plaintiffs and defendants met in the office of Judge Holden on April 3d, where it was discovered that as to the two horses, Picador, and Lord of the Yail, Second, plaintiffs had no transfer of title from their vendors to themselves. Defendants then demanded that they leave $400 of the purchase price which had been agreed upon in some bank to be forfeited in case they did not secure such transfers. Plaintiffs offered to leave $100 for such purpose but this was not agreeable to defendants. In the meantime some of the horses had been transferred to the possession of the defendants on Saturday and some on Monday morning. Being unable to agree, a verbal demand for the return of the horses was made by plaintiffs on defendants on April 3d, and on April 5th, a written demand was served upon them in the following language:
    “Referring to our negotiations in reference to the proposed sale by W. L. Denton and Son to yourselves, of thirteen head of horses, it now appears that for various reasons you are unwilling to pay the purchase price, although at your suggestion the horses were taken to your barn to be kept pending an examination of certain papers by your attorney. We now demand immediate return of the horses, and in case of your refusal to return them to us we will hold you responsible for the full value of the horses, and in that connection we will not be bound by the proposed sale price.
    “Yours very truly,
    “William L. Denton and Son,
    “by Ernest L. Denton.”
    Redelivery of the horses was refused by the defendants and they-were, on April 8th, sold at public auction by defendants for their own account for $2,406. On the same day suit was commenced by plaintiffs in assumpsit for the value of the horses under the claim that defendants had unlawfully converted them to their own use. To this declaration defendants filed a plea of the general issue with notice thereunder that they would show, among other things:
    “That plaintiffs are not entitled to maintain this suit because they have not made and filed with the county clerk of said county a statement showing their co-partnership and who constitutes it as provided by law.”
    The case came on to be heard before the court and a jury when a motion was made that plaintiffs’ suit be dismissed because, while suing as copartners they have not filed an affidavit of copartnership as required by law. This question was reserved and the case proceeded. Under the evidence, the court submitted to the jury the question whether there had been a completed sale, charging them that if they found a completed sale had been effected by what had been said and done by the parties, plaintiff might recover the purchase price agreed upon, $1,900 less whatever sum the jury might find defendants had lost by reason of plaintiffs’ failure to furnish the transfers of title as to the stallions, Picador and Lord of the Vail, Second; that if they should find such sale
    “contingent upon Mr. Holden’s accepting or rejecting the papers then, inasmuch as Mr. Holden rejected them as they stood, there would be no sale.”
    The jury in answer to the special question:
    “Was there a completed sale of the horses in question to the defendants?”
    answered the same: “No,” and returned a verdict in favor of the plaintiffs in the sum of $2,206.05. This verdict was rendered on September 18, 1916, and on the same day plaintiffs filed a motion to amend the prsecipe and verdict as follows:
    “On September 18, 1916, at the opening of court, counsel for plaintiffs presented a motion in writing asking the court to amend the prsecipe by striking out the words ‘action of assumpsit’ and inserting in place thereof the words ‘action of trespass on the case,’ also to amend the journal entry of the verdict of the jury so far as necessary to make it in form a verdict in' trespass on the case instead of a verdict in assumpsit.”
    On November 8th, the motion to amend was denied, the court saying:
    “I do not deem the form of action of any consequence in the determination of the reserved question. It would not be reasonable to hold that the technicalities of a mere form of action would validate acts or confer rights which, under the same facts would be illegal or barred under another form of action, the essential difference between the action being found in a fiction of law. The transaction itself, and not the words used to designate it or to describe the form of action based upon it, governs the right of the plaintiffs to recover.”
    With reference to the reserved question, the court held that inasmuch as under the verdict of the jury-no completed contract was made, the plaintiffs were not precluded by the statute from bringing suit to recover the value of the property which defendants had unlawfully converted, and thereupon entered judgment in accordance with the verdict of the jury. This judgment is now reviewed in this court under 36 assignments of error.
   Brooke, J.

(after stating the facts). It is the contention of appellant that under the uniform law relative to the sale of goods, chapter 228, 3 Comp. Laws 1915, there was in the case at bar a completed sale and the court was in error in submitting that question to the jury. Under the testimony above quoted we are of opinion'that the court properly submitted this question. It is, we think, apparent that the minds of the parties never fully met as to what should be required of the plaintiffs with reference to the papers showing breeding and transfers of title of the two stallions named. If this question was properly submitted and properly decided by the jury there remains but one matter for determination and that is whether the plaintiffs are debarred from prosecuting their action because of the provisions of Act No. 164, Pub. Acts 1913 (3 Comp. Laws 1915, § 6354 et seq.). We do not overlook the contention of the appellants with reference to the alleged errors of the court in his instructions to the jury upon the question of rescission. Under the finding of the jury that no completed sale had been made it follows that there was no contract to rescind, and that when the demand was made for the return of the horses to the plaintiffs, defendants were holding them, not under any title acquired by the antecedent negotiations of a sale, but simply pending those negotiations.

Under the liberal provisions of our statute which permits amendments even in this court, in the interests of justice, we have no doubt that the court below was not in error in .regarding the action as one in tort rather than in assumpsit.

Coming, then, to the provisions of the statute, can it be said that the members of a copartnership who have failed to comply with the law in filing a certificate in writing with the county clerk containing the required information as to the details of the copartnership, are prevented from using the courts of the State for the purpose of redressing a wrong? We think not. It would, we think, hardly be claimed that had defendants stolen the 13 horses from a barn of the plaintiffs, the plaintiffs, even though they, had not filed the certificate required by law, could not have maintained an action in replevin or for a wrongful conversion of the animals. We are not unmindful of the fact that we have held (Maurer v. Greening Nursery Co., 199 Mich. 522) that the members of a co-partnership who have not complied with the act cannot prosecute an action under a contract. We do not think, however, that the effect of this statute should be extended, it being in plain derogation of common law rights.

Judgment is affirmed.

Bird, Moore, Steere, Fellows, and Stone, JJ., concurred. Ostrander, C. J., and Kuhn, J., did not sit.


source: Caselaw Access Project

author: Steere, J.

license: Public Domain

text:
    TOLES v. DUPLEX POWER CAR CO.
    Specific Performance — Personal Property — Equity—Jurisdiction — Adequate Remedy at Law.
    On a bill for the specific performance of a contract for the sale' of stock of a manufacturing concern, where the alleged value of the stock is admitted by defendant, and the transaction was purely a commercial one, there being no sentimental reason for acquiring the stock, the control of the concern not' being involved, and no uncommon and appealing equitable consideration which should move the chancery court to assume jurisdiction being shown, plaintiff will be remanded to his remedy at law, under section 12351, 3 Comp. Laws 1915.
    See notes in 50 L. R. A. 501; 31 L. R. A. (N. S.) 491; L. R. A. 1915D, 300.
    Appeal from Eaton; Perkins, J., presiding.
    Submitted January 29, 1918.
    (Docket No. 89.)
    Decided July 18, 1918.
    Bill by George W. Toles against the Duplex Power Car Company for the specific performance of a contract for the sale of corporate stock. From a decree dismissing the bill, plaintiff appeals.
    Affirmed, and remanded to the law side of the court.

      Lyman H. McCall and Person, Thomas, Shields & Silsbee, for plaintiff.

      Colgrove & Potter, for defendant.
   Steere, J.

This bill of complaint was filed in the circuit court of Eaton county in chancery to enforce specific performance of an alleged contract for the sale to plaintiff by defendant of 1,000 shares of its stock at the par value of $10 per share and to restrain defendant, or its officers, from distributing cash, stock or other property received by it in consideration of , a sale of its property, assets, etc., to another company, as charged, until plaintiffs rights therein have been determined.

The written evidence offered in relation to the claimed purchase of stock is as follows:

“Charlotte, Michigan, Oct. 27, 1916.
“The First National Bank of Charlotte. No. — Blank. 74-274.
“Pay to the order of Duplex Power Ca,r Co. $100. One hundred and no one-hundredths dollars.
“G. W. Toles.”
• ' “Charlotte, Mich., Oct. 27, 1916.
“Received of G. W. Toles One Hundred Dollars to apply on one thousand shares of Duplex stock. Balance to be paid on or before Tues. 31st, noon.
“$100. Fred Murray,
“Sec’y D. P. Car Co.”
“Charlotte, Mich., Oct. 30, 1916.
“Dr. G. W. Toles,
“City.
“Dear Sir: I am returning your check given me to apply on D. P. stock, .as there was none for sale.
“Very truly yours,
' “Fred Murray, Sec’y.”

Briefly stated, the undisputed facts in this contention are substantially as follows: Plaintiff is a dentist located and practicing at Charlotte, Michigan, having a brother practicing as a physician in the city of Lansing, who was named as a coplaintiff in the original bill filed in this case but does not so appear in the present record.

Defendant is, or was, a corporation located at Charlotte, Mich., and engaged in manufacturing what is known as the Duplex truck, the claimed merits of which relate principally to a patented four-wheel drive. This company has been doing business at Charlotte for several years with a somewhat uncertain and turbulent career owing to litigation (Hill v. Town, 172 Mich. 508; Town v. Duplex-Power Car Co., 172 Mich. 519) and other embarrassments, among which was inadequate capital. It had been successful to a degree in developing a type of powerful truck under the patents held by it which is said to have proved practical and established something of a reputation and demand.

F. P. Town, who was its president and general manager, had been for some time endeavoring in various ways to secure an increase in capital by a sale of stock and «otherwise, with indifferent success until shortly before this transaction, when, assisted by certain- promoters in Lansing, he quietly entered into negotiations with an association of business men which resulted in a profitable sale of the assets and business of defendant to a company formed in the city of Lansing to take the same over and continue the manufacture of said truck.

While this deal was quietly pending and its purposes kept from general knowledge, as was supposed, one of the parties to the promotion informed a friend in confidence of the deal and probability of its being profitably consummated soon in a manner which would result in holders of defendant’s stock getting two for one, and advised him to purchase some of the stock. This friend informed plaintiff’s brother of the situation who informed plaintiff and they determined to purchase some stock if .possible. To that end plaintiff, on October 27, 1916, applied to Mr. Murray, defendant's secretary, in Charlotte, for the purchase of 1,000 shares at $10 a share and gave him to apply on the same a check for $100, taking a receipt therefor. They do not fully agree as to what was said and done in that connection. Plaintiff claims there was an absolute, unconditional purchase and sale of the stock; while Murray contends that it was conditional on his being able to procure the stock, he only agreeing to get it for plaintiff if any was for sale, and he could do so. Shortly thereafter Murray either telephoned to or saw plaintiff advising him that there was no stock for sale and offered back his check, which plaintiff refused to accept and it was later sent to him by registered mail with the letter quoted. In the forenoon of October 31, 1916, plaintiff made a tender of $10,000 to Town as president of defendant and demanded the stock, which was refused on the ground there was none for sale.

That the fugitive information which reached plaintiff through a surreptitious process of confidential communications was well founded is conceded. Town, who dominated the affairs of the Duplex company, had practically consummated a deal to sell it to the Lansing association at that time, and on October 30, 1916, two written contracts were entered into with him obligating the former to organize a new corporation which would buy on stated terms and take over all the property, patents, franchises and other assets of defendant and continue the business of manufacturing the Duplex truck. It provided that two shares of stock in the new corporation were to be given for every one outstanding in the old; Town was to receive $75,000 in cash or stock in the new company and agreed to acquire control of three-fourths of the outstanding stock in the old, with various other provisions for carrying out the project not necessary to detail or construe here. The two contracts are of the same date and as they appear in the record are between Town personally and the members of the Lansing association,' and the president of the new compány testified that by one of these contracts, “between the two companies,” $310,000 was the amount of consideration, and the amount of the second contract “made as a part of the same transaction” was $75,000.

No preliminary or other writ, of injunction was ever granted to plaintiff by the trial court and defendant’s stockholders proceeded at a meeting held November 20, 1916, to pass a resolution authorizing the sale of its business and assets to the new company, followed by the various steps requisite to carry out the provisions of the transaction as provided in the contracts. All defendant’s rights, assets and business were transferred to a new company by the same name which was organized and authorized to receive them, and the old company ceased doing business as a going, or manufacturing concern.

In the opinion of the trial court dismissing plaintiff’s bill it is correctly said:

“Under these circumstances, therefore, the relief now sought is a decree for damages sustained by the plaintiff by reason of the refusal of the defendant company to issue and deliver to him the certificate for 1,000 shares of the capital stock of the defendant company as it is claimed it agreed to do, such damages being measured by the increase in the value of that stock by reason of the sale and transfer to the Lansing concern' as stated.”

Whatever rights plaintiff claims grow out of an alleged contract made with Murray, acting as the authorized representative of defendant. He ran a shoe store in Charlotte and incidentally had been defendant’s secretary since the preceding March. His functions seem to have been somewhat perfunctory, as he says the annual report he swore to was prepared by some one else, he presumed it was Town, and he himself made no investigation to see whether or not it was true. Manifestly Town did not keep him well posted as to what was going on in the affairs of the company for plaintiff, who stated he had not kept track of its financial affairs, was better posted than he. Of the occasion for plaintiff’s application to Murray for stock, plaintiff stated he was in Lansing on Thursday, the day before, and there got his first “tip,” in the Jury-Rowe store; that the same evening, as he remembers, his brother called him up by ’phone after he was in his home in Charlotte and—

“said he heard there was a deal talked of, that if I could get some of the stock he thought it would be a good buy. Said he would like some of it. I got back from Lansing that day on the afternoon train, probably between 2 and 4 o’clock. My brother said he thought it was a good time to buy, that they were paying a premium on the stock. I did not tell Murray anything about that.”

Murray had not received the tip and was agreeable to selling stock for the company, but testified that he could only do so conditionally and subject to the approval of Town, who had full control of the sale of treasury stock and final authority to pass upon applications to purchase; that he informed plaintiff he would get it for him if any was for sale and would take the order and check conditionally; that having communicated with Town by ’phone in the meantime, he within an hour after the application was made informed plaintiff there was no stock for sale and offered him back his cheek. Plaintiff gives a different version of the transaction, stating that Murray sold him the stock unconditionally, accepting the check as a cash payment and giving him time for the balance as stated in the receipt.

The whole issue in this case turns on whether there was, in what passed between the two, a valid contract of sale, which, under the testimony, becomes a mixed question of law and fact with no appealing equities either way.

The stock which plaintiff claims to have bought and expected with reason to have made a profit on was personal property. He states in paragraph 13 of his bill of complaint that—

“said stock so purchased by your orator is now of the value of twenty ($20) dollars per share, hence he says he desires said stock so purchased to be issued and delivered to your orator in accordance with his contract of purchase.”

Defendant admits in paragraph 13 of its answer that this is true. In every case where specific performance of a contract is sought in a court of equity the primary question is whether the exercise of the power of the chancery court is demanded to subserve the ends of justice, and where there is an adequate remedy at law to recover damages for breach of the contract equity will not interfere. Manifestly plaintiff’s anticipated enjoyment of this contract is com fined to the enhanced value of the stock of defendant, resulting from the manipulation of which he received advance information, which money damages adequately compass. While by our statute (3 Comp. Laws 1915, § 11899), a court with equity powers may, if it sees fit, decree specific performance of a contract for delivery of ascertained goods, yet the recognized field for equity interference to enforce specific performance of contracts is limited to matters relating to real estate.

“As a general rule specific performance is not decreed where the subject-matter of the contract is personal property; since the compensation which would be recovered in an action at law is deemed to be an adequate remedy for the breach of the contract.” 36 Cyc. p. 554.
“It is on the ground that the remedy at law is adequate, that the court, subject to exceptions, will refuse to entertain suits in respect to goods, stock, and other things of a merely personal nature.” Waterman on Specific Performance of Contracts, § 16.

The exceptions are in cases where the measure of damages in a court of law will not afford adequate compensation for the breach of contract because the personal property contracted for has to the purchaser a special sentimental value, is something rare or impossible to obtain elsewhere, has no market value or possesses some peculiar characteristic distinguishing its purchase from an ordinary contract of purchase and sale of personal property. It is true that this doctrine has occasionally been applied to the purchase of stocks shown to have no ascertainable market value, which could not be obtained except from the defendant, where the purchase involved a controlling interest in the corporation or some uncommon and appealing equitable consideration which moved the chancery court to assume jurisdiction; but no such conditions are alleged or proved here. The mere fact of a conflict of testimony as to value, or whether a contract was actually made, furnishes no ground for equitable intervention.

Plaintiff has alleged the value of th'is stock in his bill of complaint and defendant has admitted the allegation in its answer. He was not attracted to the/ stock by any desire to become its owner for sentimental reasons. It was with him purely a commercial transaction to which he was moved in a business,! way by inside information which made the stock at-' tractive as a speculation. We see no reason why the measure of damages for this alleged breach of contract is not as readily ascertainable in an action at law as in chancery. Plaintiff has an adequate remedy at law which he is at liberty to pursue as he may be advised.

The trial court rightly held that a case for specific performance was not shown and .its conclusion in that particular is affirmed for the reasons above stated, with costs to defendants, but in view of the provision in section 2, chap. 11, of the judicature act (Act No. 314, Pub. Acts 1915 [3 Comp. Laws 1915, § 12351]), the case is remanded for such further proceedings as may be desired by plaintiff and granted by the trial court, in harmony with the statute and this opinion.

Bird, Moore, Brooke, Fellows, and Stone, JJ., concurred. Ostrander, C. J., and Kuhn, J., did not sit.


text:
    STEVENS v. VENEMA.
    1. Bills and Notes — Fraud—Notice—Evidence—Sufficiency.
    In a suit upon a promissory note by the indorsee, evidence held, sufficient to put plaintiff upon inquiry and charge him with notice of the fraud perpetrated upon defendant.
    2. Same — Presumptive Fraud — Notice—Burden of Proof.
    The procuring of defendant’s signature to a promissory note made a part of an elaborate and ingeniously enticing "order” for merchandise prepared on a printed form so as to be signed in several places was presumptively fraudulent, and, when so shown, shifts the burden of proof to the party claiming under it chargeable with notice.
    3. Same — Negotiable Instruments — Conditional Contract — Alteration.
    Where a conditional order for merchandise was so prepared that a part, when detached, became a promissory note, detaching such negotiable part of the instrument operated as an alteration of the contract and avoided the same in the hands of the original payee or of a party charged with notice.
    Error to Kent; Barton, J., presiding.
    Submitted January 23, 1918.
    (Docket No. 167.)
    Decided July 18, 1918.
    Assumpsit in justice’s court by Fred L. Stevens against Herman Venema on an alleged promissory note. There was judgment for defendant, and plaintiff appealed to the circuit court. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      William J. Gillett, for appellant.

      Wicks, Fuller & Starr, for appellee.
   Steere, J.

This case was begun and first tried in a justice’s court of Kent county where defendant had verdict and judgment, from which plaintiff took an appeal to the circuit court. The justice’s return shows that plaintiff declared orally upon all the common counts in assumpsit and especially upon a certain promissory note. Defendant filed a written plea with notice of special defense and affidavit denying, execution of the alleged note, the special defenses of which notice was given being as follows:

“1st. Defendant denies that he signed, executed or delivered the alleged promissory note on which the claim herein is based, or that he signed, executed or delivered any promissory note on which the claim herein is based, or that he signed, executed or delivered any promissory note whatever.
“2d. That the paper which defendant actually did sign has been materially altered by the Donald-Richard Company or by plaintiff or by some other persons, and that it is therefore void.
“3d. That defendant was induced to sigh the paper which he did sign through the fraud and misrepresentation of an agent of the Donáld-Richard Company of Iowa City, Iowa. .
“4th. That plaintiff is not a bona fide holder for value of the alleged note, and that he had notice and knowledge of all the circumstances hereinbefore set forth before the said plaintiff took the said alleged note. ;
“5th. That the paper signed by this defendant was a contract and not a negotiable instrument and that plaintiff does not claim to hold the same by assignment; wherefore plaintiff has not shown any right to maintain any action on said contract.”

Upon trial of the case in circuit court defendant introduced no testimony, but at conclusion of plaintiff’s testimony moved for a directed verdict in his favor, which was granted and judgment rendered thereon.

Plaintiff’s assignments of error are directed to the rulings of the court upon questions of law which center to and resulted in the charge directing a verdict for defendant. At conclusion of the brief charge directing a verdict because “no question of fact will be left to you for your consideration” the court said, in answer to inquiry by plaintiff’s counsel if the stenographer had taken down the motion:

“Oh, yes, he took it in detail and I directed the verdict upon all the grounds he presented.”

The grounds presented ran through the argument of counsel, the material points made and grounds urged for a directed verdict- being that there was no competent proof of execution of the note in question by defendant, that the note claimed to have been executed by him and denied under oath, if signed at all, was a part of a conditional order or agreement and its detachment for separate use as negotiable paper constituted a plain alteration of the agreement, rendering it void as a promissory note. The detached note reads as follows:

“Iowa City, Iowa, March 29, 1916.
“For value received, the undersigned promises to pay at Iowa City, Iowa, to the order of Donald-Richard Company, one hundred and forty-eight dollars as follows: $37 three months after date, $37 five months after date, $37 seven months after date, $37 nine months after date. Nonpayment of any installment for more than thirty days after maturity renders remaining installments due at holder’s option.
(Signed) “Herman Yenema,
“P. O. Grand Rapids, Michigan.”

Endorsed, “May 31, 1916. Donald-Richard Company, M. H. Taylor.”

Defendant was engaged in the grocery business at Grand Rapids, Mich., and on March 29, 1916, a salesman of the Donald-Richard Company of Iowa City, Iowa, procured from him a so-called “order” for some of its goods, consisting of perfumery and toilet articles, to which plaintiff claims was attached the note in question which he also signed, and which he denies.

The lengthy “order,” or “paper,” which defendant admitted signing is of the same character and apparently, so far as described and quoted from, of like form as that used by the Donald-Richard Company in Stevens v. Pearson, 138 Minn. 72 (163 N. W. 769), of which the court there said:

“The whole framework of the document presented to defendant to sign was manifestly designed to enable agents to perpetrate the very fraud which Hussey in fact committed. The contract is long, on a yellow sheet and in fine print. Conspicuous at the start is this 'special agreement’ of the seller: 'We hereby agree to buy back at the purchase price all of the goods in this order remaining on hand at the termination of this agreement, if purchaser so desires,’ * * * Just above the 'perforation’ in fine print is the language ‘the attached note is tendered in settlement of this order and the company is authorized to detach same when this order is approved and shipped.’ The places intended for signatures are such as to confuse.”

We are not favored with the original document in this case, but aside from the physical features of color of paper and size of type, that description is applicable. This “order” is headed: “Donald-Richard Co., incorporated, Chicago, 111., General Office and Laboratory at Iowa City, Iowa, and Winnipeg, Canada. Special agreement.” The subject is introduced by the following attractive provision:

“We hereby agree to buy back at the purchase price all of the goods in this order remaining on hand at the termination of this agreement, if the purchaser so desires, and if net profits are less than 50 per cent, each year for two years, will pay the difference in cash, provided purchaser has kept the goods tastefully displayed for sale in his store, used the advertising system as provided on the reverse side hereof, made payments as agreed and used reasonable diligence in promoting the sale of the goods.”

A variety of provisions follow, such as warranty of the goods as to quality, provision for exchange of goods, notice that its agents are “soliciting salesmen,” whose orders are subject to “approval or disapproval at laboratory,” terms of discount, etc. A sentence provides that “privileges herein granted are conditional on purchaser complying with all the conditions of this order.” Another sentence states that,

“The attached note is tendered in settlement of this order and the company is authorized to detach same when this order is approved and shipped.”

Above this sentence appears

“Owner of store, Herman Venema. Salesman, H. E. Collins. Order signed by Herman Venema.”

A provision appears written across the face of the paper that

“The company will send its bond to Kent State Bank of Grand Rapids, Michigan, in the sum of this order to protect the purchaser in all of the conditions of this sale. Ship with this order $9 worth of free goods to apply on freight charge. Ship with this order one-half gross empty bottles free.”

On June 28, 1916, defendant wrote the Donald-Richard Company:

“Having tried my best to sell some of your goods and failing to do so, I wish to return the goods as your salesman said I could when I bought the goods. I think I must have sold about $1.50 or $2 worth of these goods. Am very much disappointed. Please let me know how to send them or if I can leave them in Grand Rapids, Mich., some place.”

On June 30, 1916, the company replied reminding him the “terms and conditions” under which the goods were shipped to him were “a very fair and just purchasing method,” that “your order provides that you ■are to send in a list of names for advertising to be sent out direct to us. This you have not done,” etc., and concluding:

“We were obliged to discount your note some time ago as we have to raise cash funds. It is not now our property and we are not in a position to comply with your request to take the goods off your hands at this time.”

The order in this record contains no provision relative to sending a list of names for advertising, although it may have been embodied in the “advertising system as provided on the reverse side hereof,” which we are not furnished.

On October 31, 1916, this action was begun. The salesman who procured the order was not produced. The only witness called was defendant, for cross-examination under the statute; shown the order (Exhibit A) he replied “I have seen the order and it is my signature.” Shown the note (Exhibit B) in question, he replied “That is not my signature, * * * I will swear that I never signed a note to my knowledge.” Told to compare that signature with the one on the other paper he said “It looks like it.” Cross-examined further he denied knowing Exhibit A was attached, to Exhibit B when he signed in the three places, and said in part:

. “I signed my name in three places on the order but did not see that there was anything .attached to it * * * I will swear I did not sign a nóte. * * * That is not my signature. * * * I received all the goods mentioned in the order and still have them.”

No other witnesses were sworn. His counsel then produced and offered in evidence the depositions of plaintiff, Fred L. Stevens, and M. H. Taylor, both of Iowa City, Iowa, taken on notice before a justice of the peace of that city. Neither knew anything of what occurred when the order was taken in Grand Rapids or could identify Exhibits A and B back of their receipt by mail in Iowa City.' As their depositions were read objections were made to their identification and the admission of those papers in evidence on their testimony. Mi H. Taylor, who figures prominently in the records of Harrison v. Grier, 198 Mich. 672, cited in Loveland, v. Bump, 198 Mich. 564, testified that he was assistant manager of the Donald-Richard Company and identified Exhibits A (the note) and B (the order) as having been received through the mail from one .of its salesmen, that Exhibit A was attached to Exhibit B when received and he accepted the order; that he detached the note, indorsed it for the company and delivered it to plaintiff, on May 31, 1916, who paid 90 per cent, of the face value for it. Plaintiff testified that he was a practicing attorney, interested in banking and investments, had lived in Iowa City 20 years, and had known the Donald-Richard Company for 5 years or more; that he had taken many thousand dollars of its paper since February, 1913, knew that there was some litigation over .collection of the paper it had taken from its various customers and had given depositions similar to'those he was then giving 20 or 25 times since February, 1916; that he bought ’the note in question which was delivered to him by Taylor on May 31, 1916, prior to which time he knew of no defense or claim defendant might have against the Donald-Richard Company, and he had exercised his option in declaring all remaining installments due, that the note bore evidence of having been detached from some other paper, but Mr. Taylor did not show him the contract between defendant and the company and did not know whether the latter had fulfilled on its part. In Stevens v. Pearson, supra, decided by the supreme court of Minnesota, July 20, 1917, in which plaintiff’s depositions are stated to have been taken October 3, 1916, about a month before this suit was begun, his knowledge of and relations with the Donald-Richard Company are taken note of and discussed. We are well satisfied in this ease, as there held, that “the evidence presents facts abundantly to put plaintiff upon inquiry and charge him with notice of the fraud perpetrated upon defendant.” The procuring of defendant’s signature to a promissory note made a part of an elaborate and ingeniously enticing so-called “order” for merchandise, prepared on a printed form so as to be signed in several places, was presumptively deceptive and fraudulent, and when so shown shifts the burden of proof to the party claiming under it chargeable with notice. The natural inference to be drawn from incorporating a detachable promissory note in such an instrument in a transaction of this nature is a purpose to deceive.

Beyond this, the order, or “special agreement,” was a conditional order. The note though out of harmony was made a part of it. When detached it took an independent character and increased value as negotiable paper, and as a whole changed the contract or conditional agreement of which the party who prepared and used that form of order made it a part. This device for procuring negotiable paper by cunningly inserting it as an obscured part of an order for merchandise, but easily detached, is not new. In the early case of Wait v. Pomeroy, 20 Mich. 425, it was held that the destruction of a memorandum written under and qualifying the obligations of a promissory note invalidated it. In the recent case of Toledo Seale Co. v. Gogo, 186 Mich. 442, where the subject is fully discussed in an opinion by Justice Kuhn, it was held that, where a conditional contract for the sale of a set of computing scales was so drafted that a portion of the instrument signed could readily be detached from the remainder, and, standing alone, would constitute a promissory note, detaching such negotiable part of the instrument operated as an alteration of the contract and avoided the same in the hands of the original payee, which would be equally true if in the hands of a party charged with knowledge.

To sustain the validity of this detached note, dependence is placed upon the provision in the order “that the company is authorized to detach the same when this order is approved and shipped.” This sentence appears in the order just above the perforation for detaching the note and below the signature in the order. Such expedient only emphasizes the sinister purpose of the combination. In Toledo Scale Co. v. Gogo, supra, it appears from the original record that an unsuccessful attempt was made to validate the note for detachment by two provisions, in separate places, one stating “you are authorized to date above-mentioned note at such time as you may elect to insert such date either prior to or after the execution of such note,” and the other, nearer the close of the instrument, that “The signing or delivering of installment note shall not be deemed or considered a payment or waiver of any term, provision or condition of this contract.”

We regard the decision in that case as well in point and controlling here.

The judgment is affirmed.

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


text:
    GEORGE v. SCHUMAN.
    1. Contracts — Options—Consideration—Vendor and Purchaser —Tender—Acceptance.
    That the agreed amount to he paid for an option contract for the purchase of land was tendered but not accepted does not make the contract gratuitous for want of consideration.
    2. Tender — Payment.
    An unconditional tender of the specified amount for the purpose of avoiding loss of any rights or privileges is equivalent to payment as to all things incidental or consequential to the obligation to pay.
    3. Contracts — Options—Consideration—Vendor and Purchaser.
    An option on land is not an agreement to sell, but a mere offer to sell, with a contract not to withdraw that offer within a specified time; and there must be some legal consideration to validate it.
    4. Same — Nominal Consideration — Validity.
    An option is valid if supported by a nominal money consideration, and is not revocable by the optionor during its time limit. Distinguishing Axe v. Tolbert, 179 Mich. 556.
    5. Specific Performance — Consideration — Equity — Adequate Consideration — Vendor and Purchaser.
    Where a contract for the sale of land follows from acceptance of an option, chancery courts, though recognizing the rule of law as applied to the option consideration, hold that, in cases where specific performance is sought, sufficiency of price or adequacy of consideration must be in accordance with the equitable, not the legal, rule.
    6. Contracts — Options—Revocation—Laches.
    Where defendant signed an unambiguous option contract for the sale of land, a copy of which she had in her possession for nearly a year, and she gave no notice of any revocation or intention to repudiate until, under changed conditions, plaintiff had made an advantageous agreement to sell, relying on his option, her claim of revocation is not tenable.

      7. Same — Fraud—Evidence—Sufficiency.
    ' The claim, of unfairness, overreaching, or deception by which defendant was led to sign the option agreement under a misapprehension as to its terms, held, not supported by the evidence.
    8. Same — Presumptions.
    Where defendant gave no indication that she did not understand the option, which she signed after it was read over to her and others, she will be presumed to have signed it understandingly.
    9. Same — Consideration—Equity.
    The finding of the court below that the option price of $1,000 per acre was, at the time the option was given, a fair market price and all that could have been obtained in the open market, held; supported by the evidence.
    10. Specific Performance — Options — Land Contracts — Vendor and Purchaser.
    The contract being complete in its terms, and not being shown to have been procured by any misrepresentation or fraud, and plaintiff having fully performed or made tender of full performance which was kept good by tender into court of the full contract' price, the decree of the court below in favor of plaintiff for specific performance will be affirmed.
    Appeal from Wayne; Kendrick, J., presiding.
    Submitted January 18, 1918.
    (Docket No. 148.)
    Decided July 18, 1918.
    Bill by Frederick E. George against Mary Schuman for the specific performance of a land contract. From a decree for plaintiff, defendant appeals.
    Affirmed.

      Charles R. Robertson, for plaintiff.

      Dohany & Dohany, for defendant.
   Steere, J.

Plaintiff’s bill is filed to enforce specific performance by defendant of the following option contract for the purchase of 37.95 acres of land, called the “George” homestead, situate on the “Miller road” beyond the westerly city limits of Detroit, in the township of Springwells:

“This contract, made this 22d day of May, A. D. 1915, by and between Mary Schuman, Catherine Haag, Caroline George and John George, children of Martin George, deceased, and Emma George Bull, Ada George Poet, Abbie George Reese and Robert George and Margaret George, his wife, children of Henry George, deceased, and grandchildren of the said Martin George, deceased, as parties of the first part and Frederick E. George as party of the second part, Witnesseth;
“That the said parties of the first part in consideration of the sum of one ($1.00) dollar, to them and each of them in hand paid by the party of the second •part, do hereby agree that they and each of them shall and will at any time within two years from the date hereof, at the written request of the said party of the second part, execute and deliver to him, the said party of the second part, or to any persons as he, the said party of the second part shall direct in writing, a good and sufficient warranty deed of all his, her or their interests in and to the following described land situate in the township' of Springwells, and described as (legal description of the land) for the sum of one thousand ($1,000) dollars, an acre, as their various interests in said land appear, payable as follows: One-half of the amount due each and every one at the time of conveyance and the remaining one-half within three years from date of conveyance.
“And the said parties of the first part do hereby further agree that they shall and will not within the period of two years from date hereof sell, convey, mortgage, or otherwise encumber the said land or any part thereof or do, or permit to be done, any act or deed to diminish or encumber the title to said land.
“It is agreed by and between the parties hereto, that if the said party of the second part at the expiration of the aforesaid limited time shall have declined or omitted to make application for the purchase of said land at the price aforesaid, then this instrument' shall be void and the above sum of one ($1.00) dollar, so paid aforesaid, shall be forfeited by the said party of the second part and the said parties of the first part shall have the right to retain the same as liquidated damages, and the said party of the second part shall relinquish to said parties of the first part all claim to the said land, either in law or equity, and all claim to any moneys paid under this contract and no claim of said party of the second part under this contract shall then be effectual.
“In witness whereof the parties of the first part have hereunto set their hands and seals the day and year first above written.
“Mary Schuman L. S.
“Catherine Haag L. S.
“Caroline George l! S.
“John George L. S.
“Emma S. Bull L. S.
“Robert H. George L. S.
“Margaret George L. S.
“Abbie George Reese L. S.
“Ada George Poet L. S.
“Frederick George L. S.”
“Witness:
“Charles R. Robertson
“Mary Malone.”

This instrument was duly acknowledged by defendant, and others, on May 26, 1915.

Mary Schuman, Catherine Haag and Caroline, John and Frederick George are the living children of Martin George who died in 1881 seized of this property, which was the family homestead, consisting of a square 40-acre farm less a right of way conveyed to the Pere Marquette railway. The remaining five of the ten partiesi to the contract are four nieces and a nephew of the others. Each of them owned an undivided interest in the land, acquired by devise or inheritance, that of each of the two brothers and three sisters, children of Martin, being computed as 164/960 each, and of their nephew and nieces 35/960 each. Martin George’s wife was given a life estate in this property by his will. Plaintiff was the youngest of the George children and remained at the old home. After his mother’s death, which, occurred some 20 years before this contract of 1915 was executed, he continued to reside there engaged in farming and teaming. He paid the other owners some rent for about 17 years, but for the last three years before the option contract was given had not done so. After the mother’s death there was talk from time to time amongst the owners of interests in this property, or certain of them, about selling it, but nothing was done, either from lack of market or of united effort or agreement, until 1915.

Mrs. Schuman, the defendant, who was the oldest child of the Martin George family, had married over 50 years before and gone with her husband to his farm in Taylor township located, as her son describes it, “on the Wabash railroad about 3% miles south of Dearborn village” in Wayne county (which is not over ten miles from Detroit), continuing to live there with him until his death, and then with her son until the hearing in this case, in 1917.

Just what the steps were which led up to signing this instrument is told in a fragmentary way and the parties to it are not altogether in harmony as to what was done and said. Plaintiff’s claim and testimony is that ever since their mother died they were talking from time to time about selling the property but not much could be got for it until 1915, when some of the owners, particularly the sisters who were anxious to sell and get the benefit of their interest in the estate, asked him if there was any sale for it, in answer to which he asked what they wanted for it and they said they did not know; that later he, John and Caroline George met at Mrs. Haag’s and discussed the matter when he offered to buy it at $1,000 per acre if they were all willing to sell; that defendant to whom a letter had been sent was not present nor the nephews and nieces but he told those present if they would get together and make a price he would buy; that learning later from one of the sisters Mrs. Schuman had heard of the meeting and was sorry she could not be there he arranged for another meeting at the' office of Mr. Robertson, an attorney who had done business for members of the family, and defendant attended with her sisters, niece and brother John when all present signed the option which the attorney had prepared at his request, read over and explained to them, the others in interest not present signing later.

It is not disputed that defendant, after meeting with her two sisters and a niece, went with them to the attorney's office and signed the instrument there, as did the others present, after it had been read to them, and she with the others was given a copy of it which she took home with her.

The first offer plaintiff obtained after receiving this option was $1,000 per acre from a Mr. Porath, in July, 1915, later a Mr. Beyers offered him $1,100 and some time that fall he received an offer from a Mr. Curtiss of $1,200 and offered to take $1,350 which Curtiss then refused to give, but in January, 1916, offered to take it at that price, which plaintiff declined. Mr. Fred E. Gregory, an attorney of Detroit who had formerly lived in Dearborn and later was in the employ of Henry Ford buying property for him in that vicinity had, about May 20, 1915, quietly begun buying land in Springwells township in the vicinity of the River Rouge, the secret purpose being to secure a site for the Ford tractor plant. He testified that he kept the knowledge of his action and of the man for whom he wanted it from persons in that neighborhood and everybody else so far as possible, but he met people there who knew he was representing and making purchases for Mr. Ford; that the owners of property wanted were offered fair prices and some of them sold considerably cheaper than they would the next year, saying further:

“This boom in the price of real estate in the west end of town started about June, 1915, after it became thoroughly known about the Ford tractor and from that time on until last year prices soared pretty high. * * * There was as I remember it and as I view since the announcement came out in the papers that we had bought this large tract of land there, that real estate men flocked in pretty thick in that section to buy something. Of course the owners of the property were offered fair prices, and they sold, some of them cheaper, considerable cheaper probably than they would the next year, than those that held their property; that next year would bring it up to 1916. I think those that held their property got higher prices for it in 1916 than they did in 1917. I don’t know anything about prices, particularly this year, I don’t know of any sales made this year out through there.”

As a result of this fortuitous trend of events plaintiff sold the property in question on March 18, 1916, to J. C. Hudson of Detroit for $80,000 on a land contract in which he agreed to secure deeds from the other owners according to the option he held, and perfect the title, sufficient being paid him on the contract for that purpose. Time was given him to perfect title, as probation of the estate of his father, Martin George, was then in progress before the probate court, and a difference between his brother John George and wife in the courts was also recognized in the contract as a cause of delay in perfecting the title ultimately to be conveyed by delivery of a deed and abstract showing a merchantable title.

Having entered into this agreement plaintiff proceeded to avail himself of his option rights and so notified all parties to it. They all executed deeds conveying their interests to him on receipt of the amount due them by the terms of the contract except defendant, who refused, and his brother John George, who was then willing but unable to do so because of his pending domestic entanglements. Plaintiff then gave defendant a written notice and request for a deed under the terms of her contract, followed by tender of the amount due her with deed to him for her signature. Upon her refusal to accept the money and sign the deed this bill was filed.

Defendant’s contention is, as stated in her counsel’s brief:

“First, that plaintiff was guilty of unfairness, and overreaching in procuring her signature to Exhibit 1 (the option contract) and that she signed Exhibit 1 under a misapprehension as to its terms; second, that Exhibit 1 is void because it is not based upon a substantial consideration.”

As to the latter it is urged that the nominal consideration of one dollar was never actually paid and the gratuitous offer to sell was revoked before accepted in writing as the option provided and therefore it never became an enforceable contract. The testimony is conclusive that when the contract was signed and delivered plaintiff tendered defendant and others who had signed payment of a dollar each which they recognized but declined as not wanting it then, defendant saying, as plaintiff testified, “never mind, we don’t need the dollar.” That the agreed amount tendered was not accepted does not make the contract gratuitous for want of consideration. An unconditional tender of the specified amount for the purpose of avoiding loss of any rights or privilege is equivalent to payment as. to all things incidental or consequential to the obligation to pay.

As to the sufficiency or adequacy of the consideration it is to be borne in mind that an option is not an agreement to sell, but a mere offer to sell with a contract not to withdraw that offer within a specified^ time. For this contract there must be some legal consideration to .validate it. Upon this proposition it is said in James on Option Contracts, § 325:

“It is established by the great weight of judicial authority that a nominal sum of money is a sufficient consideration for an option contract, meaning thereby that an option contract supported by a nominal money consideration is not revocable by the optionor during, its time limit.”

But as to the distinct consideration for the contract of sale which follows or results from acceptance of the offer chancery courts, though recognizing the rule of law as applied to the option consideration, hold that in cases where specific performance is sought the value of the property sold, sufficiency of price or adequacy of consideration must be in accordance with the equitable, not the legal, rule on that subject. While all facts and circumstances connected with the transaction are to be weighed together, including the nature of and consideration for the option which leads into the contract of purchase, when passing upon questions of misrepresentation, unfairness, fraud or other characteristics which militate against the relief asked, the sufficiency of consideration to support the option is properly to be determined by the rule of law, and the adequacy of consideration for the contract of sale which it is sought to enforce by equitable principles.

It is urged for defendant that this court has held in effect that a nominal consideration of one dollar is not adequate to validate as a binding contract an option for purchase of land, citing Axe v. Tolbert, 179 Mich. 556. The court was there considering an instrument of mixed phraseology purporting to be an option, but held otherwise, for which no consideration was in fact paid or tendered when obtained, although it contained a recital and acknowledgment of a “valuable consideration” which was nominal in the sense of “existing in name only; not real or substantial” (Black’s Law Dictionary) — not substantial as something of value actually existing, because merely seeming or imaginary. In that case the instrument was not signed by the claimed optionor and was gratuitous because without payment, tender or assumption of obligation to pay. Here plaintiff signed the option contract which obligated him to pay $9 for the right to purchase within a specified time the varied, outstanding interests in a piece of then farming land of which he was part owner and in possession, making tender of payment as specified to defendant and the other parties present at the time they signed it. There was no occasion or intent to say or hold in the Axe Case that a consideration of one dollar actually paid or legally tendered was not adequate to render an. option contract binding as a legal proposition. In Mier v. Hadden, 148 Mich. 488, where the consideration in an option contract giving the right to purchase a farm within a stated time was $1, this court plainly said:

“Options for the purchase of land, where based on a valid consideration, are valid contracts, and may be specifically enforced.”

This option was a written instrument relating to an interest in land requiring acceptance to be in writing. Defendant’s claimed revocation was not in writing, but an oral refusal to deed on payment to her of the purchase price according to the terms of her written agreement, a true copy of which she had received when she signed the original and taken home with her, nearly a year before. Its terms are not ambiguous. She had all that time to examine it and consult others about it. She gave no notice of any revocation or intention to repudiate until under changed conditions and enhanced prices plaintiff had made an advantageous agreement to sell and convey, relying on his option, against which she had during all the time he held it made no suggestion of objection. Her claim of revocation is not tenable.

On the claim that relief should be denied because of unfairness, overreaching, or deception by which defendant was led to sign the agreement under a misapprehension as to its terms defendant testified that she never talked with plaintiff about his buying the farm and there is no testimony in the record that he or any one for him ever made any misrepresentation, deceptive proposal or promise, or false statement to her by which she was deceived into signing the option. The most which can be claimed upon that proposition is that he had present special knowledge of material facts bearing upon the value of the property unknown to her and concealed his knowledge from her. There is no evidence that he had any knowledge the Ford tractor plant or other new industries would be, or were likely to be, located in that vicinity and as a result a sudden real estate boom would develop in that section the following year, when “the real estate men flocked in pretty thick.” He positively denies any knowledge of the situation or prospects beyond that open to all. The land purchased for or to be used in connection with the site of the Ford plant, which was secured as secretly as possible by Gregory, lies along the south side of the Michigan Céntral railroad track, between it and the River Rouge, nearly a mile from the property involved in this suit which was not wanted for that purpose. This land was purchased by Hudson from plaintiff nearly a year after his option was obtained. Gregory, who quietly engineered and financed the purchase, testified that while if was likely to have gone to Henry Ford,

“The real purchaser of the Martin George homestead is Robert Oakman, who is a large stockholder in a corporation known as the Ford Highway. * * * Mr. Robert Oakman claimed he was going to build what is known as the Ford Highway from the contemplated site of the tractor plant extending around to Woodward avenue.”

On the day defendant signed this option she was driven in an automobile from her home to that of her sister Caroline, in Detroit, by her son, a middle-aged man who testified at the hearing of his mother’s mental condition, “As far as her mind goes it is as good as ever.” She went with her sister to the office of Mr. Robertson, who, Caroline testified, had takén care of her law matters for many years and who had prepared the option at plaintiff’s request according to the terms he stated. He testified that when the parties came to his office to sign it he assumed they had agreed on the terms as given him by plaintiff, that he had no interest in the matter except his employment to draw up the papers, had not given plaintiff any advice as to advisability of the investment and knew nothing about Gregory buying any real estate down there or anything of that kind; saying of the transaction:

“I explained to them that I had been asked to prepare this option and I read the option over to them and it was discussed. After reading this over, Caroline George carried on the conversation for the others. I presume it was probably because she knew me better than the others. She said in a few words, ‘What does all that mean, Mr. Robertson?’ I says, ‘It means that if Fred George offers to pay you at the rate of $1,000 an acre for your interest in that land within two years, you are to deed it to him,’ and then we had a talk and I explained to them how I would send this option, together with a copy of it to Mrs. Poet in Colorado. I explained to them the different interest that they severally had in the property. * * * I also explained to them at that time how Fred George was to take care of the expenses in closing up the father’s estate which was satisfactory to them. * * * I had known from Caroline George that they wanted to sell the property. * * * No indication was given to me that Mrs. Schuman did not have the full use of her faculties, I didn’t think in matters of this kind she ought to have the benefit of counsel because I knew they wanted to sell the property, they accepted it after it was explained to them,”

It is very manifest that as the result of industrial developments which came to that locality and the real estate boom of the ensuing year, the entire aspect of that rural district changed physically and in values to the marvel of all. Ordinary farms from which those who owned and ran them could extract little beyond a modest living became fortunes. There, as in other sections of Detroit and its environments, viewed in the light of subsequent events, many of those who parted with their holdings too soon found difficulty in viewing the fact complacently, as this record and others from that county somewhat analogous show. In that frame of mind, as their testimony plainly indicates, Catherine Haag, Caroline George and Emma Bull, who, after holding copies of the option for near a year, had signed deeds and accepted the money due them according to its terms when requested, join with defendant in testifying that they supposed they were signing an agreement giving plaintiff the right to sell the property for them. None of them testifies to any statement, conversation, or agreement by or with plaintiff to that effect, nor do they relate any previous talk between themselves indicating that such was the expressed bargain and they intended to only give him an agency. Mrs. Haag, called by defendant, said all members of the family had spoken about wanting to sell the old homestead a few years before 1915, and some of them talked it over at her house that winter; that she went to the attorney’s office and sat listening to the conversation without asking any questions, could not say whether the paper was read to her before signing, did not know what it purported to be or how she came to sign it; and asked by defendant’s counsel:

“When you went to Mr. Robertson’s office to sign the deed, did you go and sign it because you wanted to sell to Fred at the rate of $1,000 an acre or because you had to sell on account of having signed the option.?” answered, “Well, I don’t know.
“Q. You are unable to tell?
“A. No.”

Caroline George admitted the paper was read over to them and thought it was read no different than as she heard it in court, did not think anything was done to mislead, knew the price of $1,000 per acre was decided upon, knew plaintiff had two years’ permission to sell the place, and in the talk she had with him he never told her the rest would share equally in the profits with him, and said “my idea of an option was that I was to sell the property.” Emma Bull said she heard the paper read and Miss George asked questions about it and the attorney answered them, but she did not remember the exact words of the answer. John George testified that he was not present at the attorney’s office when his sisters signed the option, but was at Mrs. Haag’s home once with Caroline and Fred who in a conversation about selling the property inquired of the rest if they would take $1,000 an acre and give him an option for it, and they said they would. Robert George, the nephew, also was not present when his. aunts signed, was in the real estate business when he testified and had previously been a motorman in Detroit, stated that the option was read to him, that he considered as real estate values then were $1,000 an acre was a fair value for the property and he signed the paper understandingly. His wife signing with him said she knew she was. signing an option aqd had “learned through family gossip, I suppose, what price was going to be fixed on this land.”

It is urged that defendant was old and feeble, not experienced in business matters, living in the country with her son who looked after her business matters for her and who was not informed of this transaction, at the time of its occurrence. She owned other property beside her interest in this homestead, and, according to her own. testimony and his, the extent to which he looked after her business was leasing her farm from her, paying her taxes on it, sometimes going to the bank for her and buying a tract of land, called the Adams property, of which she was part owner, and a party to giving him an option and selling it to him in 1914. She also was a party to an important real estate deal in 1916, in which her son admitted she transacted her own business when she joined the other owners, Caroline George, Mrs. Haag, John George and his wife, in an option to Hudson for the sale of a piece of land, called the Tice property, at $2,000 per acre. When cross-examined as to this transaction she suggested it had nothing to do with the George case, but she understood that transaction quite clearly “because it was my business” and she knew the place was sold at $2,000 per acre. Although making general denials and insisting on lack of knowledge or remembrance of details as to the transaction under consideration, suggestive of the possibility of effect of price upon memory, she stated as to it

“If I got what I wanted I would sign a deed. I told him I would not deed him that property according to that option.”

She had spent her life in the vicinity of Detroit and was familiar with this property upon which she grew to womanhood and which lay between the home in which she lived thereafter and the city. She was not acting alone in this transaction nor under the influence of those who would intentionally ill advise her, against her own interest, for plaintiff’s benefit. The interests of those with whom she was most closely associated were on the same side of the deal as hers. She is presumed to understandingly have signed this option which was read to her before signing and if, as she claims, she did not fully apprehend its import the fact was not made manifest by her at that time nor until prices and conditions had radically changed, although she was in possession of a copy of it all the time with ample opportunity to satisfy herself of its contents by personal examination of it or by consulting others. Her son testified that her mentality was unimpaired, and of the claim that she was “feeble in mind and body” the trial judge before whom the testimony was taken in open court states in his opinion:

“I think the testimony shows that she was 71 years old at the time, but a careful view of her and inspection of her abilities upon the trial indicated to the court, she was a woman of fair understanding. It developed that she transacted certain very large negotiations herself and that while she claims she advised with her son there has been no testimony developed that he ever gave her any advice concerning the sale of her property; that she took that upon herself and managed it. She seems to be clear in her mind at the present time, fully comprehending and understanding her affairs, somewhat enfeebled physically as the testimony shows, which has grown upon her since the transaction of making this option some two years before.”

There were ten owners of undivided interests in this property including plaintiff, and the estate of their common ancestor from whom their varied interests were acquired was yet in probate. Relying upon the option plaintiff after a considerable lapse of time negotiated a sale of his own interest and those for which he held the option together, for a stipulated price, obligating himself to perfect through the option and probate court a merchantable title. That no objection or question of any kind was raised against the option by defendant or the others until after he had assumed those obligations is at least an equitable element in support of his request for relief. We agree with the trial court that the evidence before the court indicates that at the time this option was given $1,000 per acre “would be a fair market price and all that could have been obtained in the open market for this property” in the condition it then was as to title and otherwise. The contract was complete in its terms and is not shown to have been procured by any misrepresentation or fraud. Plaintiff has fully performed or made tender of full performance on his part which he has kept good by tender into court of the full contract price, and we see no reason to disturb the conclusion of the trial court that he is entitled to performance by defendant on her part according to thé terms of her written understanding.

The decree will therefore stand affirmed, with costs to plaintiff.

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