author: Ostrander, J.

text:
    BARRETT v. MILLER.
    1. Trusts — Constructive Trusts — Purchase of Lands — Interest of Intermeddler.
    Complainant, knowing of an offer to sell a tract of land at a certain price, falsely represented to defendants that he had an option on a part of it at that price, and offered them the benefit of the option, reserving to himself an undivided interest in the tract as his compensation. His offer being accepted, an option was procured from the owners, who declined to give an option other than for the entire tract at the original price direct to the purchasers, including complainant, defendants, and a broker who had the lands for sale. On seeing the option, defendants refused to complete the purchase, and entered into negotiations with the owner direct, ultimately securing the lands at the original offer. Held, that complainant was not entitled to recover any portion of the land from defendants on the theory that they held in trust for him the part of the tract he attempted to withhold from them, or the undivided interest in the tract he proposed to secure for them.

      2. Same — Confirmation.
    A letter from defendantsJ;o the owner, written after discovery of the true condition of the offer, directing him to make the deed, provided for by the original option, to defendants,, leaving out complainant, was not such a confirmation of the option, made after discovery of the fraud, as amounts to forgiveness of the attempted deceit and entitles complainant to the benefits of the option.
    Appeal from Kent; Ferkins, J.
    Submitted February 6, 1906.
    (Docket No. 24 )
    Decided July 3, 1906.
    Bill by Ervin E. Barrett against Ward B. Miller and others to establish an interest in certain land. From a decree for complainant, defendants appeal.
    Reversed, and bill dismissed.
    Complainant, a timber cruiser of experience, learned that his son-in-law, one E. J. Hart, of Grand Rapids* Mich., had been employed in the capacity of a broker to dispose of 9,658.10 acres of land, situated in Gogebic county, Mich., at the price of $5.75 per acre, for a commission of 9J¿ per cent. The land was valuable chiefly for the„ growing timber, and, the owners’ estimates of the quantity of the timber being unreliable, complainant, upon the request of Hart, was employed by Hart, by the consent of the owners, to make a new examination of the lands and a new estimate of the timber, his services to be paid for by $465 — by the owners if a sale was made, and one-half that sum to be paid by the owners and one-half by Hart in case a sale was not made; the estimates to belong' to the owners. Complainant and his son visited the land and did make an estimate, spending some two months in the work. Returning to Grand Rapids, he found that Hart had not yet procured a purchaser for the land, and he conceived the idea of himself 4 procuring a sale of a portion of the lands at the price asked by the owners for the entire tract, and to secure for himself that portion of the lands not so sold, as well as an interest with the purchasers. Without making any arrangements with the owners, and without the knowledge or consent of the owners, he set about the carrying of his scheme to a conclusion. He made an arrangement with Mr. Hart, later reduced to writing and dated back to September 9, 1903, as follows:
    “ Memorandum of agreement made this 9th day of September, A. D. 1903, between Edward J. Hart of Grand Rapids, Mich., party of the first part, and Ervin E. Barrett, of the same place, party of the second part,
    “ Witnesseth: That said party of the second part agrees to secure customer or customers to accept on or before October 5, 1903, together with said second party, an option on lands 'in T. 46 — 45 and T. 47 — 45, Gogebic county, Michigan, owned, by Wakefield and- Thomas Estates; said customers to pay the sum of $56,000 or approximately $8 per acre for 7,040 acres of said lands contained in sections 13, 14, 19,-20, 21, 22, 23, 24, 25, 26, 27, 28. 29. 30. 31. 32, 33. 34. and 35 of T. 46 — 45.

      “ That said party of the first part as agent for said lands, agrees, in consideration of services of said party of second part in securing such customers, and negotiating deal, and in consideration of the sum of $5.00 to instruct Charles O. Brewster, attorney for owners of said lands, to make deed to the remainder of said lands, about 2,618/10 acres in sec. 28 T. 47 — 45 and sections 1, 2, 3, 4, 5, 6, 7, 8, 11, and 12 T. 46 — 45, to said party of second part and to make deed to said 7,040 acres to customers as said second party shall direct, when said customers and said second party shall have accepted said option by depositing 10 per cent, of purchase price of $56,000.
    “ Dated Grand Rapids, Mich., September 9, 1903.
    “Edward J. Hart.”
    Complainant made two plats of the land; one containing, describing, and estimating 7,040 acres, and the other the remainder of the land. He interested certain possible purchasers, and took some of them to examine the lands upon representations as to the quality and value of the timber, and upon undertaking to pay certain expenses if the lands were not as represented. He represented that there was in existence an option, given by the owners of the land, for the sale of 7,040 acres at the price of $8 per acre, which option he could and would procure for the benefit of the purchasers upon certain conditions. At one time, at least, his proposition was put in writing and submitted in the form of a letter or prospectus to certain of the persons whom he proposed to interest. Among other things which this letter contains is the following':
    “As evidence of the estimator’s confidence in his figures, he has an opportunity to sell the whole property, or, rather, his option on the same, to one of the large lumber dealers in this city and netting him a reasonable profit on his investment, which consists of two months’ time spent-in the woods estimating the timber and securing the option. But he is so confident of the value of this property that he prefers to organize a company in which he will have one-eighth interest for his option and work, and to that end offers to stipulate in the articles of agreement that the parties furnishing the money to handle the proposition may take any one of the following four options:
    “1. He will leave the management of the property and the question of whether it is sold, if a reasonable profit on the investment is offered, or a mill, railroad, and other equipment put in and the timber worked out, entirely to the investors, and share to the extent of o'ne-eighth interest in the profits accruing from either method.
    ■ “2. The investors to have the privilege of giving him
    for his one-eighth interest the timber over and above such estimates as furnished herewith.
    “3. The investors to have the privilege of giving him for his one-eighth interest the profits on the transactions over and above $190,000.
    “4. The investors to have the privilege of giving him for his one-eighth interest the mineral rights on the land after the timber is disposed of. * * *
    “The option on this property as it now stands expires September 15th and calls for $56,000 cash. However, we believe that an extension of 30 days’ time can be secured by making a reasonable showing of good faith in asking for time to confirm estimates. * * *
    “You will also bear in mind that this option is on a complete transfer of the property — includes the real estate, mineral rights, and timber.”
    This prospectus was dictated by defendant Stevenson on or about September 10th in the presence of complainant, and who knew then that the land belonged to two New York estates, but without knowing the names of the owners, and who was told by complainant that Hart was the local agent for the lands. This prospectus was issued before any of the defendants or any persons whom they represented had made an examination of the lands. An agreement was finally made by complainant with certain persons, whose interests are now represented by defendants, to purchase 7,040 acres of land for $8 an acre, or substantially $56,000, with the understanding, ho'wever, that there was in existence an option for said lands at said price, by means of which the lands could be secured. None of the defendants had seen the option. There was in fact no option for 7,040 acres, or for any of the land, and neither Hart nor complainant knew that an option could be procured. The agent of the owners, being applied to by Mr. Hart for an option, declined to give one until he was furnished with the names of the intending purchasers, and declined to give an option, except in accordance with the terms upon which Hart had authority to find purchasers for the land. Hart represented to-the owners’ agent that complainant was an intending-purchaser ; that some- of the lands he would purchase on. his own account and some of them with other persons. An option, drawn by Hart, was forwarded, but was not executed; an option in the following form being executed and returned to him, the names of the purchasers appearing therein, being furnished by Hart:
    “Memorandum of agreement between Charles O'. Brewster, of New York, as attorney for the estate of Cyrus Wakefield and the estate of Joseph B. Thomas, as first party, and E. A. Turnbull, of Grand Ledge, Michigan, and Edwin Owen, L. J. Stevenson, E. E. Barrett, Frayer Halladay, and Edward J. Hart, of Grand Rapids, Mich., as second party:
    “The first party grants an option to and including October 5, 1903, on the lands owned by his clients in township forty-six (46), range forty-five (45), and section, twenty-eight (28), township forty-seven (47), range forty-five (45), Gogebic county, Michigan, about ninety-six hundred and fifty-eight and 10/100 acres (9,658.10) at five dollars and seventy-five cents per acre.
    “This option is granted to the second party jointly and severally upon the following terms:
    “ Said second party, or any of them, shall have the privilege of examining said lands within the period of this option and to accept the same on or before October 5, 1903, on depositing 10 per cent, of the purchase price, or about fifty-six hundred dollars ($5,600), as a guarantee to take said lands if the deeds, abstracts, and tax histories show a clear and valid title in the grantors
    “ Upon acceptance of said option on or before October 5, 1903, and the deposit of fifty-six hundred dollars ($5,-600) in the Grand Rapids Savings Bank, to be held subject to the order of the first party, as guarantee and part payment for said lands, the proper deeds and abstracts, are to be forwarded by first party to said bank for examination, according to instructions to be given by said Edward J. Hart. \

    “ In case the second party refuses to complete the purchase of the lands, a good and valid title being offered by thé grantors, the said deposit of fifty-six hundred dollars ($5,600) is to be forfeited to said first party as attorney as fiiforossid
    “ Dated New York, September 16, 1903.
    [Signed] “Charles O. Brewster,
    “Atty. for Estate of Cyrus Wakefield and Joseph B. Thomas.”
    There was and had been no other option. On the 5th day of October, 1903, defendants deposited in the bank at Grand Rapids the sum of $5,600, which they were told by the complainant was the sum required to be deposited according to the option. Complainant promised that the option should be deposited at the bank at the same time and could there be examined. It was not deposited until the next day, when it was examined by the defendants, or by some of them, and they then learned for the first time the owners’ terms of sale. They made a copy of it, consulted among themselves and with attorneys, and, without communicating with complainant, wired the New York attorney to make the deed to Luther J. Stevenson, as'trustee, and on the same day wrote him a letter to the same effect, as follows:
    “ Oct. 6th, 1903.
    “ Charles O. Brewster,
    “New York, N. Y.
    ‘ ‘ Dear Sir: In accordance with the option given by you Sept. 16, 1903, to myself and others, we deposited $5,600 with the Grand Rapids Savings Bank yesterday, to be paid on the purchase price of timber and land consisting of about 9,658 acres located in Gogebic county, Mich., upon our acceptance of the deeds to the property.
    “As we have not perfected our organization, I am instructed to advise you to make the deeds running to me, Luther J. Stevenson, trustee.
    “ Please advise me, upon receipt of this, when the deeds will probably be here, and oblige,
    “Yours respectfully.
    “Diet. L. J. S.”

      Up to this point complainant is shown to have been the veriest intermeddler in the affairs of others. He had no interest in the lands, was not employed by the owners, and was not an intending purchaser of any of the lands. Both he and Hart had misrepresented — one to the intending purchasers; the other to the owners — the facts. On the 8th of October defendants appointed a meeting, at which complainant was invited to be and was present. There is controversy as to what took place at this meeting. The following day another meeting was had, at which complainant charged the defendants with an attempt to deal around him and leave him out, and the defendants charged complainant with misrepresenting the deal to them. There was further correspondence:
    “10/12/1903.
    “ To Charles O. Brewster,
    “ 52 Liberty St.,
    “New York City:
    “ Make no deeds to Hart or Barrett for Gogebic county property covered by option of September sixteenth. Letter follows.
    “L. J. Stevenson.”
    “New York, Oct. 15th, 1903.
    “L. J. Stevenson,
    “ Widdicomb Bldg.,
    “G. Rapids:
    “Yours twelfth. Cannot give deed except to parties named in option, • unless all, including Hart, consent. Such deed now ready. Wire answer.
    “C. O. Brewster.”
    “In re T. 46-47, R. 45, Michigan.
    “ October 12, 1903.
    “ Mr. L. J. Stevenson,
    “Grand Rapids, Michigan.
    “ Dear Sir: I acknowledge receipt of your letter of the 6th inst.
    ‘ ‘ As all my dealings have been with Mr. Hart in this matter, I prefer that the instructions as to the names of the grantees in the deeds shall come from him.
    ‘ ‘ I hope you will be able to arrange matters so that there will be no further delay.
    “Yours truly,
    [Signed] “C. O. Brewster.”

      “New York, Oct. 15, 1903.
    “Messrs. Stevenson, Hall ad ay, Miller, Owen &
    Young,
    “ Grand Rapids, Mich.
    “ Gentlemen: I have received today by registered mail yonr letter of the 12th inst.-, and note its contents.
    “ I regret exceedingly that any dispute should have arisen between yourselves and Mr. Hart. As the broker in the transaction, and one of the parties named in the option dated Sept. 16th, I have confined my negotiations to him as a representative of the purchasers.
    “ In naming grantees in the deeds, I am bound by the terms' of the option, and have no right to insert the names of others without the consent of all the parties to the option, including Mr. Hart. The soundness of this proposition I am sur you will admit upon careful consideration.
    “As to the substitution of Messrs. Miller & Young in place of Mr. Turnbull, I must have a letter or telegram from Mr. Turnbull consenting to such a change in naming the grantees in the deed. Upon receipt of your letter I wire Mr. Stevenson as follows:
    “ ‘ Yours twelfth. Cannot give deeds exceptto parties named in option, unless all, including Hart, consent. Such deed now ready. Wire answer.’ Which I hereby confirm.
    “ At the present writing (5 p. m.) I have no reply to my telegram.
    “Hoping that the matter may be speedily adjusted, I am,
    “Yours truly,
    “C. O. Brewster.”
    Certain deeds were prepared and executed, and instructions given, for the purpose of permitting the lands to be conveyed directly to defendant Stevenson as trustee. On October 24th defendant Stevenson went to New York and had an interview with the attorney for the owners, where a new option was prepared and executed, in words and figures as follows:
    ‘ ‘ Memorandum of agreement between Charles O. Brewster, as attorney for the estate of Cyrus Wakefield and the estate of Joseph B. Thomas, as first party, and Luthei J. Stevenson, Frayer Halladay, Charles F. Young, and Edwin Owen, of Grand Rapids, Mich., and Ward B. Miller, of Clarksville, Mich., as second party:
    “ Whereas, an option was made by said first party to E. A. Turnbull and others for the purchase of said lands in Gogebic county, Mich., dated September 16, 1903, and under said option the sum of $5,600 has been paid into the Grand Rapids Savings Bank, October 5, 1903, said payment being made in the following proportions, viz.:
    “Luther J. Stevenson, $650-.
    “ Ward B. Miller, $1,300.
    “Erayer Halladay, $1,300.
    “ Charles F. Young, $1,300.
    “Edwin Owen, $i;050.
    “It is agreed by the parties hereto that said option, dated September 16, 1903, shall be terminated on or about October 27, 1903, and that thereafter the first party will tender proper deeds conveying the lands in question to the second party in proportion as they contributed to the sum of $5,600 on October 5th, 1903.
    “The second party shall deposit in the Commercial Savings Bank in Grand Rapids, Mich., the sum of $5,600 •on or before October 29, 1903, and thereupon the first party shall release the sum of $5,600 heretofore paid to the Grand Rapids Savings Bank October 5th, 1903; but, until such deposit is so made in the Commercial Savings Bank to bind this contract, the sum of $5,600 now in the Grand Rapids Savings Bank is to remain subject to the terms of the option dated September 16, 1903.
    “ Upon the payment of the sum of $49,934.07, in addition to the sum of $5,600 paid on account as above mentioned, the deeds are to be delivered by said bank to the second party.
    “In case the second party refuses to complete the purchase of the lands within a reasonable time after deeds conveying a good and valid title are offered by the grantors, the said deposit of $5,600 is to be forfeited to the first party, as attorney, as aforesaid.
    “It is understood and agreed that this agreement is subject and subsequent to the option of September 16, 1903, aforesaid, and shall be operative only and if and when the said option of September 16, 1903, has been terminated.
    “ Said party will immediately notify the parties to said option of September 16, 1903, that he elects to terminate the same unless performed by 3 p. m., October 27, 1903. But if any party thereto fully complies with the terms thereof on or before said date, 3 p. m., October 27, 1903, this agreement shall be null and void.
    “Dated October 24, 1903.
    “ Charles O. Brewster,
    “ Attorney for Estates of Cyrus Wakefield and Joseph B. Thomas.
    “ Luther J. Stevenson.
    “Ward B. Miller.
    “Frayer Hallad ay.
    “Charles F. Young.
    “Edwin Owen.”
    This last arrangement was finally completed by a deed of the lands to the defendant Stevenson as trustee. The defendants refused to pay complainant anything or to give him any interest in the land, and he filed his bill to have his interest in the lands determined and to compel a conveyance of them to himself. The decree which was entered requires the defendant Stevenson to convey to complainant in severalty all of the lands except the 7,040 acres, and to convey to him also an undivided one-eighth interest in all of the other lands, and in default of such conveyance it is provided that the decree may be recorded and that it shall operate as a conveyance of said lands. It is from this decree that the defendants have appealed.
    It is set out in the bill of complaint: That complainant learned on or about September 9th of the terms and conditions required by Mr. Brewster, and that Hart, in giving him the information, proposed that if complainant would find a purchaser for certain of the lands at a price which would pay the full sum asked for all the lands, he (Hart) would direct and cause a conveyance to be made to complainant of the balance of the lands. That the written memorandum of such proposition and agreement, already set out, was made. That, acting in reliance upon it, he procured purchasers upon the terms stated, and prepared and submitted to such intending purchasers a written proposition,—
    “Offering to do certain things in the way of realizing profits out of said lands in case of said purchase thereof, and among said things offered that, if said purchaser would pay substantially $56,000 for the said 7,040 acres of land, your orator would, attend to the lumbering operations thereon and have nothing for his services until the net profits amounted to $190,000 to said purchasers; your orator, after the $190,000 profits had accrued, to have whatever remained of said lands and timber, or your orator to have out of said lands, the mineral rights contained therein, or that your orator have a conveyance as a part of said purchase of an undivided one-eighth interest in all of said 7,040 acres of land. That your orator submitted said proposition to E. A. Turnbull, Prayer Halladay, Edwin Owen, and Luther J. Stevenson, and a little later to Ward B. Miller and Charles P. Young.
    “That the said first-named parties agreed, if your orator would go upon said lands and show the same to them, or to such of them as they might designate, they would purchase the said lands through your orator upon the terms of said written proposition, electing for themselves which interest they would give your orator as specified in said proposition, provided said lands turned out upon examination to be as good as the estimate then furnished by your orator to them. And ycur orator, acting upon said agreement and understanding, at great expense to himself, again went upon said lands with the said parties first above named and a man hired by your orator for that purpose and spent many days and suffered great hardships and privations in exhibiting the said lands and the timber thereon to the said parties, who, after examining the same with your orator, declared that said lands were better than your orator had represented, and accepted the said proposition of your orator, and agreed to buy an undivided seven-eighth interest in said lands for the said sum of $56,000, taking a conveyance to themselves of said seven-eighth interest and to your orator an undivided one-eighth interest therein.”
    That, agreeably with the premises, the said intending purchasers prepared a document to be deposited in the Grand Rapids Savings Bank, together with 10 per cent, of the purchase price, which specified that they were to receive a conveyance of said 7,040 acres of land ‘ according to the terms of a certain written option concerning the purchase thereof, which option is more fully described in a later part of this bill.” That at the same time said Stevenson, Owen, and Halladay, with Miller and Young, entered into a written contract and agreement, signed by all of them, that they would purchase said 7,040 acres and pay therefor $56,000, and that said instrument was signed with the distinct understanding between said persons and complainant that complainant was to have a one-eighth interest in said lands.
    “Your orator further shows that during all the negotiations with said parties none other than the said 7,040 acres of land were shown them by your orator, or talked of or considered by the said Halladay, Owen, Stevenson, Miller, and Young, or any of them. And according to this agreement and understanding between them and your orator, the said sum of $56,000 was to be paid by them distinctly as the full purchase price of the said 7,040 acres of land and no more; and that a one-eighth interest in said lands was to be conveyed to your orator.”
    The option which was first given by Mr. Brewster is set out, with the averment that it was deposited in the bank with the sum of $5,600 and with the written instrument prepared by'Stevenson, and that at the time the $5,600 was deposited—
    “None of the said proposed purchasers expected said option would be in their names at all, but it was understood and expected by all parties the said option would be in the name of your orator; that by mistake in instructions given to said Brewster the said option was prepared and sent to said Hart in the form above mentioned, but was allowed to remain in that form oh account of the short time remaining to comply with that option and in reliance by your orator upon the said proposed purchasers that they would carry out their agreement and understanding with your orator. * * *
    ‘ That up to the time said money was deposited in the bank as aforesaid,, none of said parties, except the said Hart and Brewster, knew that your orator, in addition to the one-eighth interest in said 7,040 acres of land, was to receive the other lands mentioned in said option; but shortly thereafter they learned that the said Brewster had agreed to convey all of said lands for the sum of $55,534, and thereupon began to endeavor to procure a conveyance to themselves of all of said lands, including said 7,040 acres to themselves, thereby taking and receiving the benefit of the consideration so performed and paid by your orator, with the purpose as your orator is informed and believes, and therefore charges, of depriving your orator of all the benefit and advantages of his time and services in said transaction and interest in said lands.”
    To this bill, defendants Miller, Halladay, and Owen filed a joint and several answer. The defendant Stevenson filed an answer and cross-bill. The cross-bill was answered by complainant. The answers aver that complainant represented, and all dealings with him were based upon such representations, that he held an option from the owners upon the lands he was attempting to' dispose of, and that the lands he described and sought to sell to defendants were all of the lands upon which he held such option, and were the entire holdings of the said estates in the towns in which said lands were situated, and that for said 7,040 acres of land the said estates were asking $56,000. They deny that they, with knowledge of the true facts, ever entered into any arrangement or agreement with complainant, or with such knowledge ever discussed with him the acceptance of any of his propositions, until, after learning of the alleged deceit practiced, they did so in an effort to compromise and settle with him and ■avoid expense and annoyance of possible litigation. It is •also averred that complainant expressly represented that Re was receiving no benefit or advantage out of the matter, excepting only the interest he proposed should be given to him by defendants; that the price he was paying to the owners was $8 per acre; that in an earlier option which he held upon the lands the price was fixed at $7.75 per acre; and that in seeking an extension of option to October 5th the price was raised to $8, which concession he was obliged to make to secure such extension. It is averred'that defendants sought to seethe alleged option before depositing their money in the bank and were put off with evasive and false assertions. Defendant Stevenson claims, in his cross-bill, that complainant agreed to pay him one-half what he (complainant) realized out of the transaction.
    The printed record contains more than 1,000 pages. The foregoing is an outline merely of facts and of claims disclosed by the record. Further references will be made to the testimony as discussion proceeds. The learned trial judge was of opinion that a valid contract, though one voidable for fraud at the option of defendants, existed between complainant and defendants, and- that defendants must perform it, saying:
    “ I can find no case where a contract, otherwise valid, has failed of enforcement on account of fraud, where the party seeking to avoid it has insisted, upon receiving its fruits.”

      Ward & Brown, for complainant.

      Olapperton & Owen and Don E. Minor (Loyal E. Knappen, of counsel), for defendants.
   Ostrander, J.

(after stating the facts). The legal theory of complainant is thus stated in the brief:

“The defendants, having deliberately entered into the ■contract with full knowledge of all the facts now relied upon by them, are not in position to repudiate their arrangement with complainant as one brought about by his fraud and misrepresentation. They may not appropriate the benefits of a contract so far as it is to their advantage and repudiate it as to the rest. They must repudiate the contract entirely or not at all, and if they enter into the contract and claim its benefits they are in the same position as though no misrepresentations had been made.”

And again:

“At the trial in the court below cases were cited on the subject of specific performance of contracts, but in the present case the complainant is not seeking to compel the defendants to enter into a contract nor really to perform a contract entered into. The defendants, without the consent of the complainant, entered into a contract and thereby appropriated the benefit of complainant’s services, which by the clear agreement and understanding of all the parties was to constitute the consideration of all these lands, over and above seven-eighths of 7,040 acres. The lands were conveyed to Stevenson as trustee, and thereby the case relieved of much uncertainty that might otherwise have resulted. All the complainant asks or needs to ask is that the amount of complainant’s interest, already held by Stevenson as trustee, be declared. * * *

“The relation between complainant and defendants clearly became a binding contract, either upon' the theory of the complainant or upon the history of the defendants. First, upon his own theory, he established a written proposition made by himself, adopted and acted upon by the defendants and himself, and ratified by the written agreement signed by them October 5th, to take the lands. These documents, together with the plat showing the description and location of the lands, constituted a complete written contract between the parties. Second, upon the admission of the defendants, a partly performed contract was established. The answers and the yellow letter supply everything needful to tne establishment of this fact. There was, therefore, a valid and binding contract relation existing between the parties, which might have been enforced either by the defendants upon their depositing their money in the bank, or by the complainant on the basis of the contract he made with defendants. Complainant, therefore, had a legal and equitable right to complain when defendants purchased the land directly from the owners and attempted to exclude him from the benefits.”

It is further said:

“The fact that he [complainant] had no title to the land and no valid contract with the owners for their purchase would not prevent him from making a binding contract for their sale. Such contract could be enforced if he had the lands, and he could be held in damages if he did not have them.”

It is sufficient to say of this last-stated proposition that complainant did not make a contract to sell to defendants any lands. The most that can be said of the testimony is that it is made to appear that upon the representations made by complainant defendants had agreed to purchase 7,040 acres of land for substantially $56,000, according to a corresponding option, and to give to complainant a one-eighth or equivalent interest, in consideration of his knowledge of the lands and of such an option, and his securing them the benefit of such option. There was no such option. The owners of the lands had not agreed to sell 7,040 acres for $56,000. Complainant did not procure nor secure to defendants the benefits of such an option. He did introduce defendants to a portion of the lands which were for sale. If, therefore, complainant is entitled to any consideration from defendants, it must be because they accepted the benefits of a different option, which the broker Hart was in duty bound to offer them, which came into existence, so far as the owners were concerned, because Hart represented that he had secured, according to the terms of his agency, purchasers of the lands.

I do not agree to the proposition advanced by counsel for complainant to the effect that, having discovered the terms of the option, defendants were, because of their relations with complainant, in duty bound to withdraw from its consideration and acceptance, with the alternative of paying the entire price asked for all the lands, giving to complainant a one-eighth interest in 7,040 acres and all of the remainder of the lands. The thing desired, the thing to be accomplished, was the sale and transfer of the lands. The terms according to which this transfer could be accomplished by the owners on the one side and the purchasers on the other were first discovered by the intending purchasers when the option was produced. This option was made after the fact, so far as any arrangement between complainant and defendants is concerned. The complainant had misrepresented to defendants the terms of sale which the owners proposed. The matter cannot be dismissed by the statement that the defendants were satisfied to pay for a part of the lands the price demanded for all of them. A different question would be presented if it could be found or assumed that, with knowledge of the price demanded for all the lands, they had agreed to accept fewer acres for themselves and give the remainder to complainant. The testimony strongly supports the. conclusion that the complainant had represented the fact to be that $56,000, substantially, was demanded by the-owners for 7,040 acres; that the price had been lately raised; that complainant was interested only to secure for himself an interest in the said 7,040 acres. The plats and estimates which he exhibited were of 7,040 acres only. To purchase those lands, and no others, he represented' would require $56,000, and he induced defendants to deposit one-tenth of this sum as an advance payment for the lands.

Treating complainant as an associate of defendants in the purchase of lands, the entire purchase price to be paid by defendants, we still are far from proper support for the decree. It is not claimed that defendants were to purchase more than 7,040 acres for the joint account. Suppose there had been no other lands, and, the deceit, not having been discovered, defendants had paid $56,000 for such lands, and the money in excess of $5.75 an acre had been taken by complainant. The fact being then discovered, would he be permitted to retain it ? Could he-have answered, legally, the demand for return of the money by saying that the transaction as made was a profitable one for defendants ? Or that, if they had never discovered the fraud, they would have been satisfied with the bargain ? And, if the deceit was discovered before payment of the purchase price, would the purchasers be precluded from acquiring the lands upon the terms of the owner because of their arrangement with their associate ?' The supposed case is not different, in substance and effect,, from the case presented. I know of no rule which requires, under the circumstances disclosed, that the associates, thus deceived, shall any longer recognize the deceitful associate or treat with him with reference to the subject-matter.

The argument that the letter, sent to Brewster on October 6th, was a confirmation of the option, and that, as the option ran to complainant, with others, this confirmation of the terms of the option, with knowledge of the deceit practiced, was in law a confirmation of the arrangement with complainant, or, what is the potential equivalent, it amounted to a waiver or forgiving of the deceit, and all effects of it, is not sound. It is clear that the interested and responsible parties did not in fact waive or forgive the deceit which had been practiced. They sought, as I think they had the right to do, to avail themselves of the terms of sale proposed in the option. Complainant did not propose to contribute as a party named in the option, and is not asserting rights based upon the action of either the owners or purchasers which excluded him from the benefits of the option according to its terms.

"Whether complainant be treated as an associate with defendants in the purchase of lands or a broker to invest their money, his relations were, in either case, fiduciary in character, requiring him to deal openly and truthfully with defendants. He did not do this. It should be said that but for the efforts of complainant it is probable that defendants would not have made a purchase, which, it may be assumed from the record, was profitable to them. It is, however, a long way from this fact to the conclusion, stated in the last paragraph of the bill of complaint, that—

“Your orator further shows that the said conveyance to the said Stevenson as trustee, aforesaid, was the sale procured by said Hart to your orator and the said Stevenson and his associates, and none other; that your orator actually paid the consideration for the conveyance of all of said lands [describing the 2,600 acres]; that the said conveyance was taken by the said Stevenson as trustee, without the consent and against the protest of your orator, and the said Stevenson holds all of the said lands last above mentioned as trustee for your orator, and also an undivided one-eighth part of all of said lands [the 7,040 acres].”

The decree is reversed, and a decree will be entered dismissing the bill of complaint, with costs of both courts to defendants.

Blair, Montgomery, Hooker, and Moore, JJ., concurred.


source: Caselaw Access Project

author: Grant, J. Ostrander, J.

license: Public Domain

text:
    BRINK v. CITY OF GRAND RAPIDS.
    1. Municipal Corporations — Torts — Acts in Governmental Capacity.
    Where a fire hydrant in a city is maintained solely as a part of the city’s fire department, and no water has ever been sold from it, or used for any other purpose than the extinguishment of fires, the city is not liable in damages to one injured by his horse being frightened by the flushing of the hydrant by firemen for the sole purpose of removing obstructions that may have been placed in the hydrant and might interfere with its use in case of fire.
    2. Same — Action—Evidence.
    Evidence of the use of other hydrants for purposes other than the extinguishing of fires is immaterial and properly rejected.
    3. Highways and Streets — Municipalities—Statutory Liability-Personal Injuries.
    A traveler injured on a street which is properly paved and in good repair, by reason of his horse being frightened by city firemen flushing one of the city’s fire -hydrants, cannot recover therefor against the city under the statute, on the theory that it did not keep the street in a condition reasonably safe for public travel.
    Error to superior court of Grand Rapids; Newnham, J.
    Submitted February 23, 1906.
    (Docket No. 23.)
    Decided July 3, 1906.

      Case by John A. Brink against the city of Grand Rapids for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.
    Two employés of the fire department of defendant city were engaged in flushing the hydrants Of the city. They were just about to open a hydrant on a high part of Canal street in the city when the plaintiff drove along in a wagon drawn by one horse. One of the men tried to give him notice that they were about to open the hydrant, and evidently supposed he had done so. Plaintiff did not notice the men until he was within a short distance of them, though they were in plain sight, and had just flushed a ■hydrant which plaintiff had passed. When nearly opposite the hydrant the water flowed suddenly out upon the street, frightening his horse, which ran away, and plaintiff’s leg was broken by a kick of the horse. Plaintiff brought suit, claiming (1) that defendant is liable under the statute for not keeping its streets in a condition reasonably safe for public travel, and (2) that the two firemen “were engaged chiefly, or at least partly, in performing a function which belonged to the city in its private or proprietary character.” The court directed a verdict for the defendant, for the reason that the men operating the bydrant were ■ performing a function wholly governmental in character.

      Jesse F. Orton, for appellant.

      Mo¿es Taggart ( Q an son Taggart, of counsel), for appellee.
   Grant, J.

{after stating the facts). 1. Thecharterof the defendant city provides for a board of fire commissioners, which is entrusted with the entire control of the fire department. It also has a board of public works, which is authorized to cause its inhabitants to be supplied with water, to'furnish the same at established rates, and to construct all necessary works. Counsel do not disagree as to the law. The learned counsel for the plaintiff admits that the doctrine that—

“ A municipality, in the absence of a statute to the contrary, is not responsible for injuries caused by the negligence of its employés engaged in so-called governmental functions, is too well established in this State to be questioned at the present time. * * *

“ Without doubt, according to the weight of authority, a municipality is not responsible for negligent injuries to persons or property committed by members of a fire department when engaged in work pertaining exclusively to-the extinguishment of fires.”

Under this concession, which is undoubtedly the law,, the citation of cases in this court or any other jurisdiction is unnecessary.

Counsel for both sides have shown great diligence in examining and citing cases, not so much for the purpose of stating the law as of finding facts similar to those in this case, and thus showing, the one that it is within, and the other that it is without, the rule. The question becomes one of fact. The court found, and so instructed the jury, that this hydrant had never been used for any other than fire purposes; that no-water had ever beén sold by the city or used by it for any other purpose than for the extinguishing t of fires; that-the sole object of opening and flushing this hydrant was. for the purpose of removing sticks and stones which might have accumulated or been put there, so that in case of fire its use would not be obstructed. It was immaterial that these firemen opened and flushed other hydrants in the city for other purposes, such as purifying-the water, or that they rendered that service for the city or board of public works at the same time that they were-flushing the hydrants used exclusively for fire protection.. It was also immaterial for what purpose other hydrants, were used. All such testimony was therefore properly excluded. There was no evidence introduced showing-that this hydrant had been used for other purposes, and no testimony offered for that purpose was excluded.

The city had no pecuniary interest in establishing or maintaining this hydrant. It received no compensation for its use. It was maintained entirely by taxation upon the entire city, and its use was for the sole benefit of the-city. It was constructed, maintained, and used in a governmental capacity. Welsh v. Village of Rutland, 56 Vt. 228; Edgerly v. Concord, 62 N. H. 8; Fisher v. City of Boston, 104 Mass. 87.

. 2. This action cannot be maintained under the statutory liability. The street was paved, was in good condition, and reasonably safe for travel. Its condition had nothing to do with the accident. The sole cause of the accident was the sudden flow of the water, which frightened the horse.

Judgment affirmed.

Montgomery and Hooker, JJ., concurred with Grant, J.

Ostrander, J.

I concur in affirming the judgment upon the ground that the periodical inspection and flushing of hydrants, which was being conducted at the time' the plaintiff was injured, was undertaken and supervised by the officers and agents of the fire department pursuant to the duty to see that the hydrants were in proper condition to be used in case of fire, in the performance of which duty they acted as independent public officers. I do not think the testimony shows — and, if it did, it would be entirely immaterial — that the city had no pecuniary interest in establishing and maintaining the particular hydrant, received no compensation for its use, and that it was constructed, maintained, and used in a governmental capacity. The water system of the city of Grand Rapids is a single system, constructed, owned, and operated by thp city in its private, proprietary capacity. The testimony discloses, and it is matter of common knowledge, that such use may be made of the system, and of each hydrant in the system, as convenience or necessity may require. It could not be well said that the same men, under the same direction, acting for the same purpose, were independent public officers when flushing one hydrant, and servants and agents of the city when flushing the hydrant next in line, because the city derived a revenue from one hydrant and none from the other. A certain control over the system, or over parts of it, for certain purposes, is given to the fire department of defendant city, as it is in most, if not all, cities owning a system of waterworks. The distinction' between the uses of the system made by the servants and agents of the city and the uses made by the fire department, as well as the doctrine of the responsibility of the city for the proper erection and maintenance of a city water system as a whole, have been often stated by the courts. See cases cited by Mr. Justice Grant, and also Aldrich v. Tripp, 11 R. I. 141; Aschoff v. City of Evansville, 34 Ind. App. 25; City of Chicago v. Selz, Schwab & Co., 104 Ill. App. 376, 202 Ill. 545; Esberg Cigar Co. v. City of Portland, 34 Or. 282 (43 L. R. A. 435).

Blair, J., concurred with Ostrander, J.


author: Montgomery, J.

text:
    CHEEVER v. ELLIS.

    1. Executors and Administrators — Coexecutors — Contribution — Bill—Amendment .
    On a bill by the representative of a deceased executor against his coexecutor for an accounting of the deceased executor’s transactions as executor, it is within the power of this court to permit an amendment to the bill and remand the case for the purpose of securing to complainant the right to have adjudicated the question of the coexecutor’s responsibility for certain losses occurring through the executors’ neglect.
    2. Same — Form of Order — Collateral Attack.
    Where the court in making the order designate the bill to be filed as a supplemental bill instead of an amended bill, but all parties understand, and the order recites, the purpose of the bill which is authorized, the propriety of the practice is not open to collateral attack while the order stands.
    3. Equity — Supplemental Bill — Demurrer—Effect.
    Where a supplemental bill filed by order of the court admits that no new evidence has been discovered, and the former pleadings and the testimony taken on the former hearing are made a part of the bill, a demurrer to the supplemental bill raises the question whether the whole record presents a case prima facie entitling complainant to relief.
    4. Executors and Administrators — Coexeoutors—Contribution — Bill—Evidence.
    On a bill by the representative of a deceased executor against a coexecutor for. an accounting and for contribution as to losses to the estate occurring through the fault of an agent appointed by both executors, evidence examined, and held, to show that the deceased executor assumed, through the agent, the sole management and control of the business entrusted to the agent.
    5. Same — Pleadings—Bill and Supplemental Bill — Inconsistent Averments.
    An averment in the original bill that the coexecutor entrusted practically the entire management of the estate to decedent . is not inconsistent with an averment in the supplemental bill that the two executors joined in the first instance in appointing the agent.
    6. Same — Joint Inventory — Estoppel.
    Where on a bill by the representatives of a deceased executor against his coexecutor for an accounting and contribution, the record shows the exact relations of the parties to the trust fund, the fact that a joint inventory was filed by them does not, as between the parties, estop either.
    7. Same — Joint Accounts — Conolusiveness.
    Nor does the filing of joint accounts conclude them.
    .8. Same — Joint Executors — Liability—Acquiescence in Acts OF COEXEOUTOR.
    An executor who assents to a certain course by his coexecutor is, at least in a suit by the legatees or creditors, changeable equally with the active trustee.
    8. Same — Appointment of Agent — Subsequent Negligence-Liability.
    Where no fault is attributable to joint executors in appointing an agent to conduct certain business for them, but after one of the executors has assumed the entire management of the business through the agent, losses occur through his negligence in failing to keep proper control of the agent’s acts, the coexecutor is not responsible.
    10. Same — Executor as Legatee — Qualification of Rule.
    The rule that an executor is not liable to his coexecutor for losses occurring through the negligence of the coexecutor having the entire management of the estate, is not qualified by the circumstance that the nonmanaging executor is also a legatee under the will.
    11. Same — Estoppel.
    Where losses to an estate occur through the negligence of one of two executors, who assumes the entire management of the estate without molestation from his coexecutor, and the coexecutor is also a legatee under the will, the coexecutor and legatee cannot be estopped to assert the consequences of the devastavit against the managing executor by any other or different acts that would be effective to estop her in her capacity as executor.
    Appeal from Washtenaw; Kinne, J.
    Submitted February 6, 1906.
    (Docket No. 36.)
    Decided July 3, 1906.
    Supplemental bill by Noah W. Cheever, individually •and as special administrator of the estate of Leonhard Gruner, deceased, and others, against Caroline P. Ellis, individually and as executrix of the last will and testament of Joseph J. Ellis, deceased, Hudson P. Ellis, and John J. Ellis, for an accounting. From an order overruling a demurrer, defendants appeal.
    Reversed, and ■bill dismissed.

      Lawrence & Butterfield (B. M. Thompson, of counsel), for complainants.

      Arthur Brown and Thomas A. Bogle (E. B. Sunder-land, of counsel), for defendants.

       Rehearing denied December 17, 1906.

   Montgomery, J.

The original bill in this case was filed by Cheever, as administrator of the estate of Leon-hard Gruner, and by the bondsmen of Leonhard Gruner, given as executor of the last will and testament of Joseph J. Ellis. The bill was filed against Caroline P. Ellis, co-executor with Gruner, and Hudson P. Ellis and John A. Ellis, legatees named in the will of Joseph J. Ellis, and prayed an accounting of Gruner’s transactions as executor. The answer and cross-bill sought to surcharge Gruner’s estate with certain items lost through his neglect. On the hearing in this court the account of Gruner was so ■surcharged with items amounting in the aggregate to a large sum. The case is reported in 134 Mich., at page 645. On the settlement of the decree it was ordered that such decree be without prejudice to the right of complainants, or any of them, to institute proceedings to enforce any rights of contribution from the coexecutrix which they might have; and upon further application a provision was inserted in the final decree as follows:

“Leave is hereby granted to the complainants to file a supplemental bill in the nature of a bill of review in this cause in said circuit court for the county of Washtenaw, in chancery, to enforce any rights of contribution from Caroline P. Ellis, coexecutrix of the estate of Joseph J. Ellis, deceased, that they may have.”

Such a bill has been filed, setting up no newly-discovered testimony, but amplifying the statements in the original bill, and setting up certain facts which are claimed to establish complainants’ right to contribution which were omitted from the original bill. To this supplemental bill the defendants demurred on numerous grounds, many of which relate to the propriety of adopting this remedy, and some go to the merits of the whole case as presented by the supplemental bill, so called. It is perhaps inaccurate to refer to this bill as a bill of supplement. It is manifest that when the original case was before us the aim of counsel for the complainant was to secure to his clients the right to have the question of Mrs. Ellis’ responsibility considered. It was quite within the power of the court to permit an amendment to the bill and to remand the case for that purpose. Instead of making the order in this form, the amended bill authorized was designated a supplemental bill. All parties understood, and the order recites, the purpose of the bill which was authorized. While that order stands the propriety of the practice is not open to collateral attack.

The question remains, Does the supplemental bill present a case entitling complainants to the relief sought ? as the complainants expressly state that no claim is made that there is any newly-discovered evidence, but insist rather that Mrs. Ellis was liable upon the record as it was presented in the original case, and that the order permitting the filing of a supplemental bill was asked for and granted for the purpose of presenting that question. As the complainants have made the former pleadings, and the testimony taken on the former hearing as well, a part of this bill, it would seem that the demurrer may well be treated as raising the question whether the whole record presents a case showing prima facie that Mrs. Ellis should be surcharged with any portion of the loss accruing to the estate through the default or fraud of French in connection with the Ogemaw securities.

The original bill averred that Mrs. Ellis was coexecutrix; that the inventory of the estate was a joint inventory; that joint annual accounts were filed down to 1898. The sixth paragraph reads as follows: .

“Your orators further show unto the court that while the said defendant Caroline P. Ellis was appointed coexecutor with the said Gruner of the estate of said Joseph J. Ellis, deceased, she entrusted practically the entire management of the affairs of said estate and trust to the said Gruner, except as hereinafter set forth, and that she expressed from time to time the utmost confidence in his integrity and ability and the utmost satisfaction with the manner in which the affairs of said trust were carried on.”

The important averments by way of supplement or amendment made in the supplemental bill are' briefly stated: That Myron H. French was, after due deliberation, appointed by Gruner and Mrs. Ellis as their joint agent in the management of the affairs of the estate in Ogemaw county, and that he acted as joint- agent and never as Gruner’s sole agent; that French frequently visited Ann Arbor, and at such times gave her all the information which Gruner possessed in regard to the affairs of the estate in Ogemaw county; that all the losses to the estate charged against Gruner in the. final decree were losses which were due to the conduct and acts of said Myron H. French; that Mrs. Ellis signed and swore to the annual accounts; that she participated in the management of the affairs of the estate, repeatedly signed discharges of mortgages and assignments of mortgages, and understood fully what was being done in the management of the affairs of the estate; that during the administration she received |900 as fees for her services as executrix. As to the averments in the sixth clause of the original bill, the supplemental bill avers that “while it was true that said Caroline P. Ellis, executrix, intrusted practically the entire management of the affairs of said estate and trust to said Gruner, * * * it is also equally true that said Gruner, as executor, never had the exclusive management of any of the affairs of said estate and trust, and that such affairs were managed jointly by said coexecutors ; that said Gruner and said Caroline P. Ellis frequently consulted together, and also advised together with legal counsel in regard to the affairs of said estatethat books of account were kept by said Gruner, and were open at all times to the inspection of said Caroline P. Ellis, executrix.

It is claimed by defendants’ counsel that the averments of the supplemental bill are wholly inconsistent with the averments of the sixth clause of the original bill and with repeated references in said bill to French as Gruner’s agent. We agree with counsel’s contention to this extent: We think the whole case as made by the original bill and by Gruner’s testimony showed that Gruner assumed to manage and control the Ogemaw securities through French. We quote from Gruner’s testimony, taken in another court and appearing in the former record:

Q. You may state whether or not you are executing the duties of executor at the present time ?

“A. I am.

Q. You may state who has exercised mainly these duties, yourself or Mrs. Ellis ?

“A. I have mainly exercised these duties, but Mrs. Ellis has been generally informed.

Q. But has taken no part in adjusting or taking care of the business ?

“A. Well, no direct part; no * * *

“ Q. Since you were appointed you have had the possession of all the notes and mortgages and other papers belonging to the estate, have you not ?

“A. Yes, sir.

Q. Including the notes and mortgages and other matters in Ogemaw county?

“A. Yes, sir.

Q. And during all the time since you have been executor you have kept possession of all the notes and mortgages that were made and executed on loans in Ogemaw county, have you not ?

“A. Yes, sir.

Q. You have also controlled what should be done with them, have you not ?

“A. Yes, sir.

Q. When anything was necessary to be done you have directed Mr. French or some one else to do it ?

“A. I have. * * *

“ Q. You kept control of these matters under your discretion ?

“A. Yes, sir; and I could accept or reject any of the mortgages that were sent in.

Q. You had the absolute control of the property in Ogemaw county ?

“A. Yes, sir.

Q. And the absolute control of what should be done with it ?

“A. Yes, sir.

Q. And kept them from the beginning of your administration up to the present ?

“A. Yes, sir.”

It is true that French testified that he talked to Mrs. Ellis about the Ogemaw investments in a general way, but there is nothing to indicate that any of the individual transactions were taken up or considered by her. In fact, the averments on the original record, and the testimony taken therein and made a part of the supplemental bill, negative this. It is not inconsistent with the averments of the original bill to assert that Mrs. Ellis joined in the first instance in constituting French agent. If the fault in management had consisted of making this appointment, it would be clear that Mrs. Ellis should share the loss. The decision of the original case shows that no fault was imputed to the executors in retaining French as agent. 134 Mich. 650.

The question here presented would therefore appear to be this: Where one of two coexecutors intrusts to the other practically the entire management of the affairs of an estate, or of. a particular part of it, and that other assumes to take practically complete charge of that part of the estate, and a loss occurs through his negligent performance of such assumed duty, shall the coexecutor be surcharged with any portion of the loss, in a case where the question arises between the two executors, and where no rights of creditors or legatees are involved ? And, secondly, if in general a negative answer should be returned to question 1, is the result different where the executor not in default is a legatee ? As the record shows the exact relations of the parties to the trust fund, the fact that the inventory was a joint one does not, as between the two executors, estop either. Hall v. Carter, 8 Ga. 407; Hilton v. Briggs, 54 Mich. 265. Nor does the filing of joint accounts conclude the executors. White v. Bullock, 20 Barb. (N. Y.) 91; Gaultney v. Nolan, 33 Miss. 569; Clarke v. Jenkins, 3 Rich. Eq. (S. C.) 318. The general rule of liability of executors for a devastavit is stated with clearness in Peter v. Beverly, 10 Pet. (U. S.) 532, as follows:

“ It is a well-settled rule that one executor is not responsible for the devastavit of his coexecutor any, farther than he is shown to have been knowing and assenting at the time to such devastavit or misapplication of the assets; and merely permitting his coexecutor to possess the assets, without going farther, and concurring in the application of them, does not render him answerable for the receipts of his coexecutor. Each executor is liable only for his own acts, and what he receives and applies, unless he joins in the direction and misapplication of the assets.”

See, also, Sutherland v. Brush, 7 Johns. Ch. (N. Y.) 17; Wilson’s Appeal, 115 Pa. 95; Myer v. Myer, 187 Pa. 247; Nanz v. Oakley, 120 N. Y. 84 (9 L. R. A. 223). On the other hand, an executor who assents to a certain course by his coexecutor is, at least in a suit by the legatees or creditors, chargeable equally with the active trustee. Irvine’s Estate, 203 Pa. 602; In re Niles, 113 N. Y. 547; In re Peck’s Estate, 31 App. Div. 407, 161 N. Y. 655. These cases are cited by complainant to sustain their contention that when one of two executors, who' is interested in the funds of the estate, turns them over to the other executor, and he is intrusted with the principal management of their investment, and a portion of the funds are lost, in an accounting between the coexecutors each will be surcharged with one-half the loss.

A careful examination of the cases cited satisfies us that they do not make for any such hard and fast rule. In re Niles, supra: The items with which Mrs. Miller sought to surcharge the.amount of her coexecutor were loans made in the name of Mrs. Miller. The rule for the retrial of the case was stated by Gray,-J., as follows:

“Where concurrence in the -action of Niles can be proved, or with adequate knowledge of it, she is proven to have assented expressly, or by her passiveness should be deemed to have acquiesced, in it as coadministratrix. She is chargeable with its consequences, and as beneficiary she is estopped from objecting to it.”

This falls far short of holding that the exclusive control of one of two executors may not, as between himself and an interested coexecutor, be such as to fix upon him the sole responsibility for a devastavit. Irvine’s Estate, supra: There were three executors.'. Ih determining that all were chargeable the court said: '

“It must be remembered that the executors were acting jointly. They were in constant contact, and the acts of each might easily have been known to the others by the exercise of reasonable diligence. Moneys were sometimes paid to one and sometimes to another, but it was the intention in all cases * * * that all collections were to be reported to Mr. Parmalee as the accountant, and the proceeds turned over to him as custodian of the funds of th.© ©stat© h» h*

'“As was said * * * in Weldy’s Appeal, 102 Pa. 461:

“ ‘However it may be as to the responsibility of one executor who has passed the money of the estate over to his coexecutor, there is not noV and never has been any difference of opinion as fo their joint responsibility for a loss resulting from their joipt negligence.’” *

In Re Peck’s Estate, 31 App. Div. 407, the appealing executor is stated to have “ admitted with commendable frankness that he should be charged personally with such ■of those investments as had been made upon his own responsibility and without the acquiescence of his coexecutor.” The rule, stated in Be Niles was reiterated.

In the present case it sufficiently appears that Gruner took upon himself the duty of caring for the Ogemaw securities. All the correspondence was with him. No fault is imputed to him in the fact of having selected French as agent, but the negligence for which his account was surcharged was after negligence in failing to give due and proper attention to the business which he assumed to control and did control without molestation from his co-executor. The negligence must be held to have been the sole negligence of Gruner. We cannot impute a fault to Mrs. Ellis in thus reposing confidence in Mr. Gruner. In re Daly’s Estate, Tuck. (N. Y.) 95; Cocks v. Haviland, 124 N. Y. 431; In re Hunt, 78 N. Y. Supp. 105. We are not able to see how the general rule is qualified by the circumstance that Mrs. Ellis was also a legatee. That circumstance would not relieve her coexeeutor from, the consequences of a devastavit. Nor would she be estopped by any other or different acts than would be effective to estop her in her capacity as executrix.

The decree is reversed, the demurrer is sustained, and, as the whole case is apparently stated, the proper decree would seem to be one dismissing the supplemental bill. The defendants will recover costs of both courts.

Blair, Ostrander, Hooker, and Moore, JJ., concurred.


author: McAlvay, J.

text:
    KAUFMANN v. BURTON.
    1. Statute of Frauds — Contract — Offer and Acceptance — .Contract for Sale of Land.
    Where a landowner addresses a written proposition to another person stating the terms upon which he will convey certain lands to the addressee or his assigns, the receipt and retention by him of the acceptance of the proposition by a third person, to whom the addressee has not assigned it, does not constitute a contract to convey, since the acceptance by the stranger amounts at most to ■ a counter proposition, which the landowner may accept or reject.
    2. Same.
    A letter to the attorney of the third person, in which the landowner states, that the title to certain lands, which under his proposition he is to receive, is defective, but that he does not refuse to perform under the contract, but will insist on full performance of all conditions precedent to performance on his part, does not constitute an acceptance of the stranger’s counter proposition, but is a mere statement that the original proposition is still open.
    Error to Wayne; Hosmer, J.
    Submitted February 13, 1906.
    (Docket No. 145.)
    Decided July 3, 1906.
    Assumpsit by Minnie Kaufmann against Charles F. Burton for breach of a contract to convey certain real estate. There was a judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      Frederic T. Harward, for appellánt.

      E. A. Fink, for appellee.
   McAlvay, J.

Plaintiff sued defendant in assumpsit to recover damages for the nonperformance of a certain written agreement, whereby it is claimed defendant agreed to sell and convey, and plaintiff to purchase from him certain land situated in Barry county in exchange for lands to be sold and conveyed to him by her. Defendant pleaded the general issue, and denied under oath the execution of any contract with plaintiff. Upon a trial had in the Wayne circuit court before a jury plaintiff recovered a verdict. This was set aside on a motion by defendant for a new trial, on the ground that the evidence ..did not show that there was a written contract between the' parties relative to the sale and exchange of real estate. Afterwards, by stipulation between the parties, the evidence taken on the former trial was considered as introduced, and the court instructed a verdict for defendant. Upon such action and instructions on the part of the court errors are assigned.

The question to be considered is whether the written proposition of defendant to McBride, the indorsement on it signed by plaintiff, and the letter of defendant, constitute a written agreement between the parties to this suit relative to a sale and exchange of real estate. It is immaterial, and therefore unnecessary to state the circumstances surrounding this transaction, for the reason that the case must be disposed of upon a construction of the writings.

The following is the proposition in writing made by defendant upon which plaintiff’s acceptance appears:

“Detroit, Michigan, Nov."28, 1903. “Louis C. McBride, Esq.,

“Detroit, Michigan.

‘ ‘ Dear Sir: I will give you or your assigns a warranty deed of my farm, located in Hastings township, Barry county, Michigan, and described as .the northwest one-quarter (i) section 26 (twenty-six), town three (3), range eight (8) west except one acre on the northwest corner, which the school district has the right to use so long as it is occupied for school purposes, for a warranty deed of' the two-story double frame house located on the southwest corner of Hubbard and Brandon avenues, Detroit, Michigan, and the two-story double frame house situated immediately on the rear, all being better known and described as lot one (1) Martin’s subdivision of lots thirty-eight (38) and thirty-nine (39) of Scotten’s subdivision of Hubbard’s subdivision of private claim No. 77, situated on the southwest corner of Hubbard and Brandon avenues, Detroit, Michigan. Said last-mentioned property to be deeded to me subject to mortgages of thirty-seven hundred ($3,700) now on said property,'same being payable on or before two years from their date, and bearing interest at the rate of six per cent. (6;í) per annum, payable semiannually.

“ I further agree to place a mortgage for you or your assigns on my above-described property for the sum of twenty-five hundred dollars ($2,500), payable on or before three years from its date, bearing interest at the rate of six per cent. (6* )per annum, payable semi-annually from its date. In case there is any commission to pay for said loan of twenty-five hundred dollars ($2,500) you or your assigns are to pay an amount up to fifty dollars ($50) for procuring same.

“I further agree to take a second mortgage on my above-described farm for the sum of seven hundred dollars ($700), for you or your assigns, payable on or before one year from its date and bearing interest at the rate of six per cent. (6*) per annum, payable semi-annually.

• “In addition to the warranty deed above mentioned to be given to me, I am to receive one thousand dollars ($1,-000) in cash and the above mentioned seven hundred dollars ($700) mortgage.

“ Each to furnish a satisfactory abstract brought down and certified to date and showing good marketable title and property free and clear of and from all liens, taxes and incumbrances, excepting the above-mentioned mortgages of -thirty-seven hundred dollars ($3,700)' on the property located.on the southwest corner of Hubbard and Brandon avenues, it being agreed and understood that I shall have the privilege of removing twenty-one oak trees (21) from said farm.

“ Charles F. Burton.”

“ I hereby accept the above proposition and agree to ^arry out my part of the same.

“M. Kaufmann.”

The material facts relative to the' crucial question are practically undisputed. This, written proposition to sell bn the part of defendant was made in duplicate to Mc.Bride and his assigns. It was not accepted or assigned by him. Both duplicates were delivered to McBride. When one of them was returned to defendant an acceptance under the signature of defendant was signed by plaintiff. It is disputed whether prior to this time defendant had any knowledge that McBride claimed to be acting for a third person.

Plaintiff contends that because defendant received this paper with plaintiff’s acceptance written thereon without objection, he accepted her as a party to the agreement; and also that his letter to plaintiff’s attorney constitutes a written acceptance. The following is the letter referred to:

“Detroit, Mich., Dec. 30, 1903.

“Mr. Lemuel H. Foster,

“50? Hammond Bldg.,

“Detroit, Mich.

“Dear Sir: In reference to the agreement of which you wrote me on the 28th inst.

‘ ‘As I wrote you yesterday, I have not met Mr. Kaufman, and do not know what relation he has to the property mentioned in the paper. There was brought to me in the course of negotiations an abstract of the property beginning with Mr. Daniel Scotten and closing with Mr. Peoples, such an abstract does not show any title, because there is nothing to indicate where Mr. Scotten obtained title.

“On the partial abstract which was presented, there was apparently an outstanding dower interest in Mrs. Peter Lane, I think, anyhow, the wife of the first grantee from Mr. Scotten.

“ The partial abstract that was brought me shows that' there is on the property or was on the property one mortgage for $1,800 and one mortgage for $100. The mortgage for $1,800 runs five years, whereas the contract provided for a mortgage to run to be payable on or before two years. I am informed that there are other mortgages on the property not shown by the abstract, that differ both in time of payment and in amount of payment and in terms of interest from that specified in the contract. The full contents of these mortgages I am not informed of, nor did I give the abstract that careful and thorough investigation and study which I should desire to give to a full and complete abstract before accepting the title.

“ I will frankly say that the contract was not prepared by me nor under my instructions, it was brought to me in the condition in which it is (I think one change was made after it was first presented), and its full force and effect was not carefully considered at the time it was signed. I think that probably both the signing parties affixed their signatures without a full and careful consideration of the full scope and bearing of the writing.

“ I have not and shall not refuse to perform under the contract, but because of the facts I have stated above, I shall insist upon the full and complete performance of all conditions precedent to such performance on my part, and my present opinion is that the conditions precedent to my action cannot be complied with, at least I do not see how they can.

“Very respectfully,

“ C. F. Burton.”

We do not think that receiving this paper signed by plaintiff amounted to a substitution of her for McBride. The writing was made by defendant with a party of his selection. It was enforceable by McBride or his assigns, if properly accepted in writing.. The indorsement was by a stranger to the agreement, and must be considered in the nature of a counter proposition. The claim of McBride that defendant knew he was acting as agent for a person named Kaufmann, even if true, can make no difference. It is fundamental that an agreement relative to the sale or exchange of real estate must be in writing signed by the party to be charged or some person lawfully authorized. The mere receipt of plaintiff’s counter proposition by defendant, and not signed by him, does not create a contract between the parties to this suit.'

After an examination of the letter from defendant to plaintiff’s attorney, which is relied upon as an acceptance in writing of plaintiff’s counter proposition we agree with the court below, that “it was not an agreement to enter into contract relations ” with plaintiff, and that the effect of the language “ is a statement on the part of Mr. Burton that the offer to McBride is still open,” and that the evidence did not show a written contract between the parties, relative to an exchange of properties. It is not necessary to consider other questions raised.

The judgment is affirmed.

Grant, Blair, Montgomery, and Moore, JJ., concurred.


author: Blair, J.

text:
    CONRAD v. VAN BUREN CIRCUIT JUDGE.
    Arrest — Affidavit—Sufficiency—Facts Within Knowledge of Affiant — Conclusions.
    An affidavit for a capias ad respondendum from which it appears that the most important fact attempted to be stated therein, i. e. the debauching of plaintiff’s wife, is a mere inference of the affiant from facts and circumstances not disclosed by him in the affidavit, is insufficient to justify the issuance of the writ and the arrest of the defendant under article 6, section 26, of the Constitution.
    Mandamus by William Conrad to compel L. Burget Des Voignes, circuit judge of Van Burén county, to vacate an order denying a motion to discharge relator from arrest and avoiding his bail bond.
    Submitted March 13, 1906.
    (Calendar No. 21,579.)
    Writ granted July 3, 1906.
    Relator was arrested on a writ of capias ad respondendum on the 11th day of September, 1905, and was taken into custody by the sheriff of Van Burén county in ac-. cordance with an order to hold to bail indorsed on said writ. Relator, having given a bond in the sum of $2,000, was released, and afterwards, on the 26th day of September, 1905, put in special bail as required by law. On the 10th day of November, a copy of the declaration in the cause was served upon relator, to which he filed his plea of the general issue on the 24th day of November, 1905, and, thereupon, made a motion to quash the action on the writ of capias in arresting the relator, to discharge the relator from bail, to avoid the bail bond, and discharge the sureties thereon for the following reasons:
    “(a) Because it appears from the affidavit that the said affidavit, upon'which the writ of capias ad respondendum was issued in pursuance of section 9996 of the Compiled Laws of 189?, was issued after the said writ had been issued.
    “ (b) Because the affidavit does not state a single fact or circumstance, but conclusions drawn by the deponent therein.
    “ (c) Because the affidavit does not state in terms, nor does the fact appear from what is stated in the affidavit, that it is made on the personal knowledge of the deponent, Howard Clowes.
    “ (d) Because the affidavit does not show that that which is stated therein is within the knowledge of the deponent, Howard Clowes.

      “ (e) Because the deponent, Howard Clowes, states in the affidavit in these words: ‘All of which said actions
    and doings took place at the village of Lawton and at other places in said county unknown to this deponent. ’
    “ (/) Because the affidavit does not allege, as provided by section 9996 of the Compiled Laws of 1897, that the affiant believes that the plaintiff is entitled to recover against the defendant for the cause of action stated.
    “ (g) Because the affidavit does not set out any cause of action.”
    This motion, having been brought on to be heard, was overruled by the circuit judge, and thereupon relator made a motion to set aside the order denying his motion, which motion was also denied. Relator thereupon applied to this court for writ of mandamus to require the circuit judge to vacate the order and to enter an order discharging the relator from arrest and avoiding the bail bond.
    The affidavit upon which the.capias was based is, so far as necessary to be considered here, as follows:

      “That on or about the 15th day of April, A. D. 1905, at the village of Paw Paw, in said county, this deponent married one Phoebe McPadden (since known as Phoebe Clowes) and that at the time of the commission of the wrongs hereinafter mentioned, the plaintiff and his said wife were living together as man and wife in the village of Lawton, in said county; that immediately after the marriage of this deponent and the said Phoebe McFadden, they were living together as husband and wife in the said village of Lawton, and that the said William Conrad lived with them in their said home; that immediately thereafter, the said William Conrad laid plains to separate the said plaintiff from his said wife, and wrongly and wickedly and without the privity or connivance of the plaintiff, at various times since the said 15th day of April, 1905, debauched the said Phoebe Clowes, all of which said actions and doings took place at the said village of Lawton and at other places in said county unknown to this deponent and prior to the date of the commencement of this suit, by means whereof, the affections of the said Phcebe Clowes for the said plaintiff, which had hitherto existed, was wholly alienated and destroyed; that, by reason of the premises, the plaintiff has wholly lost the comfort, society, aid, and assistance of his said wife, which, during all the time aforesaid, he otherwise ought to have had and' enjoyed.
    “Deponent further says that during all of said time since the said marriage, the said William Conrad has, by false and fraudulent representations to the said Phoebe Clowes, endeavored and has succeeded in destroying the affections of the said Phcebe Clowes for the said plaintiff and has induced the said Phoebe Clowes to leave the home of this plaintiff, whereby his home is broken up and his domestic happiness destroyed; that the said Phoebe Clowes and the said William Conrad have together left the home of this plaintiff and now are residing together, and that the said Phoebe Clowes is living with and caring for the home of the said William Conrad, instead of living with this plaintiff and caring for his home, as she ought.
    “Deponent further says that, in furtherance of his scheme to rob this plaintiff of the affections of his said wife, the said William Conrad has endeavored to hire other people to induce this deponent to drink intoxicating liquors and to become intoxicated, that he might picture this deponent in an unfavorable light to the said Phoebe Clowes and thereby assist him in his nefarious scheme to rob this plaintiff of the affections of his said wife.
    “Deponent further says that in furtherance of the scheme of the said William Conrad to rob this plaintiff of the affections of his said wife and to debauch and carnally know her, the said Phoebe Clowes, he has offered the said Phoebe Clowes large sums of money if she would leave this plaintiff and go and live with him, the said William Conrad.
    ‘ ‘ This deponent further says that he is informed and believes that the said William Conrad and Phoebe Clowes intend and are about to elope and leave the State of Michigan; that they have taken possession of this plaintiff’s money and property amounting to a large sum, to wit, the sum of six hundred dollars, and are together scheming and conniving to take away from the State of Michigan with them all of this plaintiff’s said money and property.
    “ Deponent says that the said William Conrad has so thoroughly supplanted this deponent in the affections of his said wife that she has left his home and refuses to have anything more to do with this deponent, and that the conduct of the said William Conrad with the said Phoebe Clowes, has become the talk and scandal of the village of Lawton; that it has broken this plaintiff’s home, and that the said William Conrad has alienated all the plaintiff’s wife’s affections for him, the said plaintiff, causing him great sorrow and anguish.”

      Eugene W. Lawton, for relator.

      Bussell M. Chase and W. J. Barnard, for respondent.
   Blair, J.

(after stating the facts). In my opinion, this affidavit was not sufficient to justify the issuance of the writ and the arrest of the relator thereunder. The Constitution of the State (article 6, § 26) provides that “ no warrant to search any place or to seize any person or things shall issue without describing them nor without probable cause, supported by oath or affirmation.” In Brown v. Kelley, 20 Mich. 27, this court had occasion to construe this provision of the Constitution as applied to a warrant issued by a justice of the peace upon an affidavit setting out the facts relied on in the following words:

“That heretofore, to wit, on the seventeenth day of September, 1866, he placed in the hands of Jacob L. Brown the sum of three hundred dollars for safe keeping, to be kept by the said Jacob L. Brown until such time as this deponent should call for it; .that the said'Brown instead of restoring to this deponent the said sum of money so intrusted to him, converted two hundred dollars of the same to his own use and now wholly refuses to return the same to this deponent.”

Chief Justice Campbell, writing the opinion of the court, says:

“The affidavit is clearly defective.. The statute requires it to set forth the facts and circumstances, within, the knowledge of the person making the affidavit, constituting the grounds of the application. There is not a single fact or circumstance alleged here within the plaintiff’s knowledge, tending to make out a case. The oath is to a mere conclusion of law. It does not show when or where or by whom any demand was made, or even that any demand was made at all upon Brown, or how he met the demand, if made. The necessity of. such a showing is made more apparent in this case, when the plaintiff showed the facts and circumstances on the trial negativing the truth of his conclusions. The facts to be stated in the affidavit must be given in the same way as on the stand, by a distinct averment of each fact upon knowledge, and the facts must be such as in law tend to make out the cause of complaint. It is not for the party to draw his own inferences. He must state matters which would justify others in drawing them. The rules heretofore laid down in this court have always required the facts themselves to appear upon knowledge. No other rule would preserve the constitutional right against warrants not based on probable cause, supported by oath or affirmation. Const, art. 6, § 26; Proctor v. Prout, 17 Mich. 473.”

In Sheridan v. Briggs, 53 Mich. 569, Mr. Justice Champlin, delivering the unanimous opinion of the court, says:

“ The principle deducible from these cases is that an affidavit wfyich is used as the basis of a writ which will deprive a person of his liberty, must not only set forth the facts and circumstances in detail, and not conclusions or inferences from facts, but they must be facts within the personal knowledge of the deponent.

“Applying these principles to the affidavit in question, it appears to be defective in that portion which contradicts the alleged representations; their falsity does not appear to be alleged upon the personal knowledge of the deponent, and the statements respecting the falsity of the representations are too indefinite to possess the quality of legal proof. If the deponent was called to the witness stand for the purpose of proving the falsity of the representations, it would not be competent for him to testify in the general, loose, and vague manner contained in his affidavit. Such testimony would not be admissible to establish the fact that the representations made were false. The affidavit upon which a person is held to bail must be of the same legal quality, as evidence, as would be required at the trial to establish the facts set up or relied on for cause of arrest.

“ The authorities referred to in plaintiff’s brief apply to cases of pleadings, and not to affidavits or examinations which form the basis of a writ or warrant to arrest or imprison a person. What would be quite sufficient in a pleading would, in. most instances, be entirely insufficient in an affidavit to hold to bail. The reason is obvious. In pleading,’ the evidence is not required to be set forth. But no arrest can be made except upon sworn evidence of facts.”

The affidavit in the case before us is substantially a declaration in an action of trespass on the case for alienating the affections of the affiant’s wife. While it is not essential that it should be stated in the affidavit in so many words that the facts relied upon are within the personal knowledge of the affiant, it is essential that facts and not conclusions should be stated, which are necessarily, or, at least, apparently, within the knowledge of the affiant. The most important fact attempted to be stated in this affidavit, the debauching of the affiant’s wife, is manifestly an inference of the affiant from facts, and circumstances not disclosed by him in the affidavit, since it is stated that “said actions and doings took place at the said village of Lawton and at other places in said county unknown to this deponent.” I do not think that the affidavit in the case now under consideration is as definite and positive as either of the affidavits considered in the cases above cited. See, also, Robinson v. Branch Circuit Judge, 142 Mich. 70.

The writ is granted, with costs.

Ostrander and Moore, JJ., concurred. Montgomery and Hooker, JJ., concurred in the result.