text:
    SCHOENFELD v. KEMTER.
    Specific Performance — Land Contracts — Forfeiture—Equities.
    In proceedings by tbe assignee of the vendee for the specific performance of a land contract, where the record shows that while plaintiff was in default a judgment in proceedings before the circuit court commissioner was rendered against him, of which he had notice, that he neither paid the judgment nor took an appeal, that later he was dispossessed by writ of ouster, that he took no action until nearly three years later, when the present proceedings were instituted, held, to show no equities in the case in behalf of plaintiff, and that the bill should have been dismissed.

      Appeal from Wayne; Davis (Frank D. M.), J., presiding.
    Submitted June 11, 1920.
    (Docket No. 75.)
    Decided September 30, 1920.
    Bill by Israel Schoenfeld against Freda Kemter and others for the specific performance of a land contract. From a decree for plaintiff, defendants Kemter appeal.
    Reversed, and bill dismissed.

      Fixel & Fixel, for plaintiff.

      Millis, Griffin, Seely & Streeter (George B. Murphy, of counsel), for appellants.
   Moore, C. J.

The bill of complaint in this case was filed September 1, 1917. This is an appeal from a decree granting plaintiff the specific performance of a land contract dated June 23, 1910, upon the payment within 90 days of the sum of $1,186.37, the vacating of any deed or deeds given by defendants Kemter to William J. Stocker, Morris Zack or Julius Berman, and setting aside and vacating a chancery decree, as well as a judgment obtained against plaintiff in summary proceedings.

On June 23, 1910, Emma Krell was the owner of a certain parcel of land commonly known as 116 Wilkins street in the city of Detroit. She sold the premises under a contract in writing to Morris Srere, which contract included the ordinary terms and covenants of a land contract, among which were provisions for the forfeiture of the vendee’s rights in case of default. The selling price was $1,500, cash payment of $200, and the balance of $1,300 was to be paid in semi-annual payments from the date of contract of $25 or more, the entire principal sum to be paid within 5 years from date, with interest at the rate of 6% until due, and 7% thereafter payable quarterly. Possession was given the vendee. By various conveyances the plaintiff became the owner of this contract.

Emma Krell, the vendor in the land contract, died in December, 1913. Her estate was later probated. Defendant Freda Kemter is the daughter of Emma Krell. Theodore Kemter is the husband of Freda Kemter. Under the will of her mother Freda Kemter inherited $4,000. In part satisfaction of this inheritance the vendor’s interest in the land contract in question valued at $1,554.99 was assigned to her in the probate proceedings. This was done in July, 1914. In the spring of 1914 plaintiff was notified that defendant Freda Kemter had succeeded to the rights of her mother as vendor in the contract. May 22,1914, there was paid on behalf of plaintiff to Mr. Seely, attorney of the estate, on the contract $32.99. Thereafter no payments were made on the contract. Defendants Kemter started summary proceedings for possession of the land before Commissioner May in Detroit on December 8, 1914. Defendants .claim that prior to that time notice was given to plaintiff through the mails that if páyments were not made the contract would be forfeited and that they were not made. The return day of these proceedings was December 12th. Plaintiff was made a defendant in said cause and with him was joined the tenant occupying the cottage in question, a Mrs. Wilson. It is claimed that plaintiff could not be found, and substitutional, service was obtained on plaintiff December 11th, by service on Mrs.' Wilson. One of the defendants in said cause was before Commissioner May in the court room. On the return day the case was heard and judgment passed against the defendant in the sum of $88.73 rent due and $4.50 costs. Plaintiff was brought into court under the name of “M. Schoenfeldt,” and it is claimed now that this is fatally defective, though no objection was made at the time of the hearing on that ground.

Plaintiff’s version of what happened in the court room is as follows:

“I told the judge to adjourn the.case until I got my lawyer. I didn’t intend to go through with the proceeding at that time. * * * I never tried a case without a lawyer. I did not understand the things that were in that summons, the paper that was served on me. I did not understand everything the judge told nie. I did not have an interpreter there. * * * I don’t remember the day I went down to Commissioner May’s office when the proceeding was had to put me out of the property. I went a couple of times. I don’t remember. I remember the time they put the notice on the door and I went up to see if I could read it, and of course I couldn’t read and I got somebody to tell me that there was a case against me the next day, so I came down and they had the case. He told me where I had to go. I had somebody read it for me and he told me where to go. I went to the attorneys and asked them to read it for me and they told me what it said. * * * After I was. down before Commissioner May, Mr. May told me that I would have to pay $92 and some cents. I paid it once and I wasn’t going to pay it over again.”

For some reason which is not very satisfactorily explained the files in the proceeding before the circuit court commissioner were not produced by the commissioner, but he was sworn as a witness; he testified in part:

“I was one of the circuit court commissioners for Wayne county in December, 1914. I have been commissioner about fourteen years. I am still a commissioner.
“Q. I show you a certified copy of file No. 48583, that is the calendar entries, a case that was tried before you as circuit court commissioner. The file in the case is missing. The complaint was that there were certain arrears due on a land contract. Did you find a verdict in favor of the plaintiffs there?
“A. Yes, for $88 and some cents. The plea is not guilty. I do not recall the case personally now. If that action was based on the fact that the land contract was being canceled, there would have to be a declaration filed for that, together with a proof of service that was sworn to there in court that morning, or else the proof attached. That is our universal practice on a claim for arrears on a land contract. I have no recollection of this particular case, but that is done in every case for arrears on a land contract. So that it would have to be in writing and service would have to be shown by affidavit or testimony before me, unless there was a waiver some way or other. I cannot tell by looking at the instrument before me (a certified copy of the calendar entries) whether it was a proceeding under a land contract. The plea must be guilty or not guilty. I entered a plea in all cases, if the man does not plead. The statute requires that. Then I proceed with the proofs. In this case I did proceed with the proofs. There is such a thing as a special appearance before me in my court. Parties come in and put in a special appearance. I do not see any entry in that certified copy of the calendar entries that there was a special appearance in this case. If there had been a special appearance, I would have entered it.”

No appeal was ever takep from the judgment and in the same month a writ of restitution was issued and Mr. Schoenfeld was ejected from the premises and has never occupied them since, and never made a claim personally to the defendants that he had any interest in the premises until this chancery suit was commenced almost three years later. His claim is that the delay occurred because the lawyers he tried to get interested, and he names several of them, did nothing in his behalf until he secured the services of his present attorneys.

March 16, 1916, Mrs. Kemter deeded the property to Mr. Zack at the request of Mr. Berman to whom she had sold it before that for $1,600. September 1, 1917, a chancery proceeding was begun by the Kemters to remove a cloud from the title growing out of the fact that the record showed Mr. Schoenfeld some years before had conveyed an interest in his land contract which was of record. Mr. Schoenfeld was made one of the defendants. An unsuccessful effort was made to get personal service on him, an affidavit was filed, an order was made which was published in a newspaper to bring' in the defendants. He did not appear and later a decree was entered against him from which no appeal was ever taken. It is the claim of the defendants that the judgment before the commissioner and the decree in the chancery case are res adjudícala as to the present proceeding. It is the claim of the plaintiff that both were void for want of jurisdiction and the chancellor so held.

It is the claim of the plaintiff that the property had increased greatly in value when he was ejected so that he had a very substantial interest in the property. The defendants deny this claim and say plaintiff allowed the cottage that was on the premises to become badly out of repair and that the property had increased in value very little over the consideration named in the land contract when Mr. Schoenfeld was ejected.

Evidence that is persuasive of defendants’ contention is found in the fact that the property came to her from the estate and that she soon sold it for $1,600. It is doubtless true that, when the bill in this case was filed, due to the phenomenal increase in the value of Detroit property, the property in controversy was worth $8,000 to $4,000. This fact may explain why a proceeding which, to say the least, had remained dormant took on new life.

A great many interesting legal questions are presented and argued by counsel. In our opinion the facts in the case which are not in serious dispute should dispose of the case. Briefly "stated they are these: The last payment on the contract was made in May, 1914. The plaintiff knew when the others came due. A letter was sent him that he must pay or the contract would be forfeited. Forfeiture proceedings were commenced in December, 1914. He had knowledge of these proceedings and was present and had some talk with the commissioner on the return day. A hearing was had and a judgment was. rendered of which he had knowledge. He testified: “Mr. May told me that I would have to pay $92 and some cents. I paid it once and I was not going to pay it over again.” He neither paid nor did he take an appeal from the judgment. Within a month a writ of ouster was issued and the possession of the premises was delivered to Mrs. Kemter, who a little later sold the property, and a little later gave a deed of it. In the meantime the plaintiff made no offer of other payments. While plaintiff claims he tried to get attorneys. to pursue the litigation for him further, Mrs. Kemter and the other defendants were none of them advised of this, and it is not until nearly three years later and after property values have greatly changed in Detroit that this proceeding is brought. There can be no doubt that a good faith effort was made to forfeit this contract because of plaintiff’s failure to perform its conditions. Plaintiff was advised of this effort.

The proceeding was before an experienced and able commissioner. The files are not in the record to show just what occurred before him. A judgment followed. Later carné a writ of ouster and then a long period of silence as before stated. There are no equities in the case presented by the plaintiff. See Mills v. William Drueke Co., 172 Mich. 394; Tattan v. Bryant, 198 Mich., at p. 523.

The decree is reversed and the bill of complaint is dismissed with costs of both courts.

Steere, Brooke, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


source: Caselaw Access Project

author: Moore, C. J.

license: Public Domain

text:
    WHITE v. HOENIGHAUSEN.
    Brokers — Commissions—Exclusive Listing — Evidence—Directed Verdict.
    In an action by a real estate broker for 'commissions on the sale of a house and lot sold by defendant more than one month after listing same with plaintiff, where plaintiff claimed an exclusive listing, but admitted that the agreement drawn up by him did not truly represent the agreement between himself and defendant, and the latter testified that she understood that plaintiff had one month in which to make the sale, a judgment should have been directed in favor of defendant.
    Error to Wayne; Marschner (Adolph F.), J.
    Submitted June 11, 1920.
    (Docket No. 76.)
    Decided September 30, 1920.
    Assumpsit in justice’s court by Cólby E. White against Louise Hoenighausen for commissions on the sale of certain real estate. There was judgment for defendant, and plaintiff appealed to the circuit court. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Bishop & Kilpatrick (R. R. Weaver, of counsel), for appellant.
   Moore, C. J.

This case was commenced in justice’s court to recover $225 for commissions which plaintiff claimed he had earned. The defendant had judgment in justice’s court in her favor. The plaintiff appealed to the circuit court. After the testimony of plaintiff was in defendant moved for a directed verdict. This motion was overruled. The case was submitted to a jury which rendered a verdict for $231.58. Defendant made a motion for judgment non obstante veredicto. This motion was denied. A motion was made for a new trial for various reasons, among them that the verdict was against the clear weight of the evidence. The case is brought here by writ of error. There has been no brief filed on the part of the appellee. After reading the record this does not occasion us any surprise.

The plaintiff claims he is entitled to the 3% commission based upon a sale made to Mrs. Sloan, who bought the property of the defendant, April 6, 1919. He presents as his contract Exhibit 1 which is a small printed card reading:

“February 13th, 1919. Colby E. White. Exclusive agreement. In consideration of your agreement to list this property in your records, and to use your efforts to find a purchaser, I hereby appoint you my broker exclusively for one month from dáte hereof, and thereafter until you receive from me a ten days’ written notice, terminating this agreement, to sell my property as- described on reverse hereof, for the sum of $7,500, payable $3,000, or upon any other price, terms or exchange to which I consent. If such property is sold before the expiration of this agreement by you, or any other person, or if it be sold within three months after such expiration to any person with whom you have had negotiations, I agree to pay you the Detroit Real Estate Board commission of 3 per cent. In event of such sale I will execute and deliver to such purchaser a deed for said property with full covenants of warranty and release of dower, except mortgage. I represent the title to said property to be good and will furnish an abstract of title of the same to date of sale. You are hereby authorized to place a ‘For Sale’ sign on said property, and to remove all other signs.
(Signed) “Louise Hoenighausen.”

The defendant was called as an adverse witness and testified in substance that when the cards were presented to her to sign that she did not have her glasses, but by holding them at arms’ length she could read some of the provisions contained therein and refused to sign them for the reason that it was agreed that unless plaintiff made a sale for her in one month that he was not to be paid any commission, and that plaintiff then undertook to change the cards so that they would express her agreement with him by writing one month in place of two months and by striking out the words “and thereafter until you receive from me a ten days’ written notice terminating this agreement” and also by striking out the words “or if it be sold within three months after such expiration to any person with whom you have had negotiations.” She said he made these changes with a fountain pen and gave her one of the cards which she produced in court with the words stricken out as above stated. She further testified that she supposed he had made the changes on the other card before she attached her signature to it. The defendant’s husband testified he saw the card given to the defendant the evening of the day it bore date, and it then had the erasures as they appeared at the trial.

A Mrs. Sloan bought the house April 6th. Mrs. Gibb was living in the house at that time. Mrs. Sloan was a witness. She testified in part:

“We went and looked at this house. I asked Mrs. Gibb who the owner was and she called Mrs. Hoenighausen, who came down and met us there, and Mrs. Hoenighausen said that Mr. White had nothing to do with it, and that she would not sell through Mr. White, so we purchased through Mrs. Hoenighausen as the owner.”

The plaintiff admitted the defendant would not sign the cards until he had changed them from two months to one, but denied that, he made the other erasures on the card produced by the defendant. When pressed he testified: (We quote from his testimony.)

“At the time the signed card was delivered to me, there was a difference between Mrs. Hoenighausen and I between two months and one.
“Q. Yes, and you were distinctly told that you had one month to sell the place?
“A. She told me that, but she said after the one month is up, if you show any action on it, I will let you have it further. * * * It says on my card one month and thereafter until I receive written notice; that month would be up March 13th. Up to that time I had not sold the property. * * * I did scratch' out that ‘two months’ and put in ‘one month,’ there had to be something in there, one month or two months or something, or it could be terminated the next day by written notice.”

The plaintiff’s own testimony discloses that he did not write the cards so that they truly represented the agreement between himself and his client. See Boston Piano & Music Co. v. Pontiac Clothing Co., 199 Mich. 141; McCulley v. Rivers, 203 Mich. 417.

The trial judge should have directed a verdict in favor of defendant. Judgment is reversed and a new trial ordered, with costs to the defendant.

Steere, Brooke, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


author: Bird, J.

text:
    PORATH v. VILLAGE OF HIGHLAND PARK.
    1. Municipal -Corporations — Sewer Contract — Substantial Compliance — Approval op Engineer — Arbitrarily Withholding Approval.
    Although a sewer contract provided that the work should be done to the satisfaction of the village engineer, where there were attached to the contract plans and specifications which provided in detail what should be done, the contractor was entitled to the approval of the engineer on substantially complying with the terms of the contract.

      2. Same — Compliance with Contract — Question por Jury.
    Ah to whether there had been a substantial compliance with the contract, held, under the evidence, a question of fact for the jury.
    ■3. Same — Evidence—Expert Testimony — Collateral Issues.
    Expert testimony on the part of plaintiff to the effect that vitrified segment block sewers (the kind specified by defendant) had been failures in certain cities, held, objectionable, since it raised collateral issues difficult for defendant to meet.
    4. Same — Contracts—Engineer Agent op Village.
    A provision in the contract that the contractor should “carry on the work under the supervision and direction of the village engineer,” made the orders and directions of the engineer those of defendant.
    5. Same — Evidence as to'Approval op Engineer — Admissibility.
    It was competent for the plaintiff to show that he had done the work in such manner as to gain the approval of the engineer, which was one of the things the contract provided he should do, although the contract provided that the work was also subject to the approval of the council.
    6. Costs — Supreme Court Rule.
    Although defendant was entitled to costs, where little, if any, effort was made to comply with Supreme Court Rule No. 40, requiring the brief of the party bringing the cause into this court to contain a clear and concise statement of tbe facts distinct from argument, etc., the cost of printing its brief will be excepted.
    Error to Wayne; Mandell (Henry A.), J.
    Submitted June 9, 1920.
    (Docket No. 16.)
    Decided September 30, 1920.
    Assumpsit by Julius Porath against the village of Highland Park upon a paving contract. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Claude H. Stevens, for appellant.

      John E. Moloney, for appellee.
   Bird, J.

Early in 1914 defendant submitted plans and specifications for bids for the construction of a sewer extending across the village from north to south on Oakland avenue, a distance of .8,530 feet. Plaintiff’s bid was accepted and a contract made with him on June 24, 1914, with the plans and specifications made a part thereof. The contract called for a 48-inch sewer for about one-half of the distance, a 42-inch sewer for one-quarter of the distance, and for the remainder a 36-inch sewer, the entire sewer to be constructed of vitrified segment block. Plaintiff proceeded with the work and by the first of the following year he had it nearly completed. Before its final completion, however, the defendant became dissatisfied with the manner in which the work was being done, and took over the work and finished it, and, in addition, reconstructed a small portion of the 42-inch sewer and nearly all of the 36-inch sewer. It was the claim of the village that these portions were so defectively constructed that they spread at the springing line, thereby allowing the top of the sewer to fall in, and that the failure of the sewer was due wholly to poor workmanship and defective blocks. It is the claim of' the village that it expended upwards of $14,500 in bringing the sewer up to contract specifications, and on the trial it attempted to offset this sum against plaintiff’s claim.

Plaintiff contended that whatever defects existed in the sewer were due to design and selection of materials. In short that a good sewer could not be constructed of the vitrified segment block, which was stipulated for in the contract. This was the issue tried out in the trial court. The jury took plaintiff’s view of it and awarded him,the full amount of his claim, with interest, amounting to $21,754.76.

A directed verdict for defendant at the close of plaintiff’s case was requested on the ground that his proofs failed to show that the work was done to the satisfaction of the village. In urging this point, counsel asserts that plaintiff’s own testimony showed that 85 feet of the sewer was defective, and that no approval of the village was shown. That under these circumstances it was incumbent upon plaintiff, in making his case in chief, to show that the approval of the village was captiously and arbitrarily withheld. The portion of the contract which controls this phase of the case provides that:

“It is further agreed between the parties hereto that all of the work to be performed by the second party under and pursuant to this contract shall be done and performed to the satisfaction of the said village engineer and village council.”

Attached to the contract were plans and specifications which provided in detail what should be done, the size of the sewer, the materials out of which it should be constructed, and the manner of constructing it. This, together with other requirements of the contract, indicate that the parties never contemplated that the contract should be brought within the class of satisfaction contracts in which the taste or judgment of one of the parties is made the sole basis of acceptance or rejection. The terms of the contract place it among' the class of satisfaction contracts, which hold that when the contractor in furnishing materials and in performing the work has substantially complied with the terms of the contract, he is entitled to the approval of the other party. Such cases are Schliess v. City of Grand Rapids, 131 Mich. 52; Algate v. City of Lansing, 180 Mich. 484.

Under this view of the contract it was a question of fact whether, under the proofs, there had been a substantial compliance with the contract. Upon this question plaintiff’s testimony made a case for the jury. The trial court was in no error in refusing the request for a directed verdict.

Expert testimony to the effect that vitrified segment block sewers had been failures in certain cities in the United States and Canada was admitted in evidence, followed by the opinion of the expert that such failures were due to the' unfitness of the vitrified segment block for sewer purposes. It is argued that the admission of this testimony was error. We agree with defendant’s contention in this respect. This testimony raised collateral issues, which it was very difficult for defendant to meet. It raised an issue as to each sewer mentioned whether it was constructed under similar soil and other conditions, whether the blocks were similar in quality, and after this whether the failure was due to defective material or poor workmanship. Commenting on this class of testimony it is said by Rogers in his work on expert testimony that:

“While the opinion of experts may be based on their observation and experience in similar cases, yet the principle is well settled that such witnesses cannot, on their direct-examination, be questioned concerning the particular cases which have happened to come within their observation, and which have no connection with the case in hand. The reason for the rule is manir festly to prevent the introduction of innumerable side issues, which might render the trial of a cause interminable, distract the attention of the jury from the real issue, and render the costs in the case unnecessarily burdensome and enormous. Different experts might have different theories, and each theory might be founded on the observance of several and distinct cases, each of which the opposite party would have a right to controvert. And inasmuch as a party would be unable to anticipate the cases which the experts on the other side would mention, he would be unable to prepare for their investigation, and would, therefore, be unable to properly avail himself of his right to controvert them. Rogers on Expert Testimony, § 35.”

This paragraph was approved in People v. Holmes, 111 Mich. 364, where the same question was discussed. See, also, Jamieson v. Railway Co., 147 N. Y. 322 (41 N. E. 693); Emerson v. Lowell Gas Light Co., 3 Allen (Mass.), 417; Hammerschlag Manfg. Co. v. StruthersWells Co., 83 C. C. A. 198, 202, 154 Fed. 330; Crane v. Valley Land Co., 203 Mich. 359. The admission of this testimony was harmful to defendant’s case, as it bore directly upon the vital point in issue. Its admission was reversible error.

It appears that some question arose during the progress of the work whether certain blocks which were on the ground should be placed in the sewer. The village engineer was appealed to, and after an inspection of them, he directed the plaintiff to use them. The defendant contended that even if the engineer did direct their use the council was not thereby bound. He based this upon paragraph (d) of the contract, which follows:

“d. To do all work in a thorough and workmanlike manner and conform in every particular to the plans, specifications and directions of the village engineer and village council and to carry on the work under the supervision and direction of the village engineer and the duly authorized superintendents and inspectors of the village council, and at such points or places as the said village engineer shall, from time to time, direct.”

Upon this phase of the case the trial court instructed the jury that:

“I wish to say in that connection that under the terms of this contract it became the duty of the plaintiff to see that none except blocks that met with the requirement of clause 5 were used, and he would not be excused in using defective blocks, even though they had passed the inspection of the inspectors of the village of Highland Park. There is. just one exception to that, and that is in the case of a portion of the 42-inch sewer; it was claimed by the plaintiff and I think established by the evidence, that when a dispute arose as to whether or not certain of the blocks that were about to be used met the requirements of this clause, the matter was referred to the city engineer. It is claimed, at least by the plaintiff that he proceeded to insert and use those blocks in the construction of that portion of the sewer under the express direction and commands of the engineer.
“If that contention is established by the proofs and by a preponderance of proof, then I charge and instruct you that, under another clause which gave supervisory powers to the engineer, if those blocks— these particular blocks — afterwards proved defective, and were the cause of breaks or the disjointed condition of the sewer, that the contractor would not be responsible.”

It will be observed that the trial court drew a distinction between materials which went into the sewer, by express direction or permission of the engineer, and those which were furnished and used by plaintiff in the ordinary course of construction. The distinction appears to be well taken. The same distinction was pointed out in Boots v. Steinberg, 100 Mich. 134, where it was said:

“This contract clearly required that the work should be done to the satisfaction of the owner or his superintendent, as it progressed, and that it should not be fully paid for until completed to the satisfaction of the owner. Some of the matters complained of w;ere, according to our view of the evidence, approved by the owner and the superintendent, as the building went up. We think that was true of the concrete footings, which were not constructed according to the specifications, but which were discussed, and the course taken acquiesced in. There might be some force in the contention that the same is true of the construction of the flues, as to lining and rubbing, were there evidence that it was knowingly permitted, or if the facts were such as to make it plain that the owner or superintendent must have acquiesced. To go further, and say that the fact of such construction without interference is conclusive of the question of approval, would be, in effect, to say that whatever the contractor could succeed in doing must be taken as approved, — a proposition that would put such a premium upon bad faith as to be untenable. While the contractor may rely upon what was actually approved under the contract* he is supposed to understand the specifications and how the work should be performed as well as the superintendent, and as well as, if not better than, the owner; and he cannot be permitted to invoke the doctrine of estoppel where some of its elements are lacking, making it ‘a sword, and not a shield.’ ”

In Lamson v. City of Marshall, 133 Mich. 250, the distinction is again made.

It will hardly do to say that if the contractor follows the directions of the engineer he will incur the same liability as he would should he refuse to follow his directions. The contract provides, that the contractors shall “carry on the work under the supervision and direction of the village engineer, etc.” When the council so contracts, it makes the orders and directions of the engineer its orders and directions, and cannot thereafter complain because the orders and directions were obeyed.

Error is assigned upon the following instruction:

“It is claimed on behalf of the plaintiff, that the plaintiff, having done this work from day to day, under inspection of the village engineer, and an inspector appointed by him, that the village is estopped from complaining that the work from time to time was not done in accordance with the plans and specifications. I charge and instruct you, as a matter of law, that that is not true, but the fact that the engineer at times was on the work, saw what work was to be done, and the fact that the inspector was there constantly, or almost so, may be taken into consideration by you as evidence on the question — the disputed question, as to whether or not the work was done in all respects in accordance with the terms of the contract and specifications.”

Attention is called to the fact that the provisions of the contract under .consideration provide that the council, as well as the engineer, shall accept the work, and that even though the village engineer should accept the work, the council would still have a right to reject it. This, perhaps, is true, but we think that what was done in connection with the work by the engineer and inspector was admissible, as the court stated, upon the question,whether the work was done in accordance with the contract. It was certainly competent for the plaintiff to show that he had done the work in such a manner as to gain the approval of the engineer, because that was one of the things his contract provided he should do. The mere fact that he had been unable to get the approval of both the council and engineer would not preclude him from showing that his work had the approval of one of ■them.

There are further complaints concerning the charge of the court but we think they are not well taken. The charge was a very clear exposition of the law governing the rights of the parties.and was doubtless of great assistance to the jury in reaching a conclusion. The assignments Already considered will make it unnecessary to discuss the remaining ones. For the error in admitting the expert testimony the judgment must be reversed and a new trial granted. Defendant will recover its costa in both courts, except the cost of printing its brief. This exception is made because counsel made very little, if any, effort to comply with Rule 40 of this court.

Moore, C. J., and Steere, Brooke, Fellows, Stone, Clark, and Sharpe, JJ., concurred.


text:
    McCONNELL v. McCONNELL.
    1. Annulment of Marriage — Common-Law Marriage — Evidence—
    Burden of Proof.
    In proceedings by a husband to annul a marriage on the. ground that defendant had a former lawful husband living, the burden of proof is upon her to establish her clairm that after she obtained a divorce from the former husband! marital relations constituting a common-law marriage were resumed between herself and plaintiff.
    2. Same — Cohabitation—Mutual Pbomises.
    Mere cohabitation, without a mutual understanding that they should accept each other as husband and wife, would he insufficient to establish a common-law marriage.
    3. Same — Evidence—Sufficiency.

      Held, that the record fails to establish a common-law marriage, and the decree of annulment is .therefore affirmed.
    Appeal from Wayne; Mandell (Henry A.), J.
    Submitted June 10, 1920.
    (Docket No. 31.)
    Decided September 30, 1920.
    For authorities discussing the question of presumption flowing from marriage ceremony, see notes in 45 L. R. A. 540; 16 L. R. A. (N. S.) 98; 34 L. R. A. (N. S.) 940; and L. R. A. 1915E, 186.
    On sufficiency of words and conduct to, constitute common-law marriage, or of circumstantial evidence to imply marriage, see note in L. R. A. 1915E, 60.

      Bill by James McConnell against Dorothy McConnell for the annulment of a marriage. From a decree for plaintiff, defendant appeals.
    Affirmed.

      Eugene L. Mistersky and William K. Campbell, for plaintiff.

      Edward S. Grece, for defendant.
   Bird, J.

The parties to this suit were married in October, 1910. Both had been previously married. They lived together until March, 1917, when their marital relations ceased. No children resulted from this marriage. The interruption in their relations was caused by information coming to plaintiff from the public authorities that defendant had another living husband. Plaintiff had supposed, up to that time, that she was divorced from him. She claims that she understood she was divorced. Inquiry by plaintiff led to the information that she had filed a bill for divorce'irn the Livingston circuit court, but that it had never gone to a hearing. Following the disclosure defendant took steps to have her suit carried to completion. In this she was successful, a decree being granted her in March, 1918. It is plaintiff’s claim that he never resumed the marriage relation with her after learning that she had another husband, although he admits that they lived in the same house, the house being his property. Defendant admits that the marriage relation ceased when plaintiff learned the situation, but claims it was resumed again after her decree was granted. It is conceded that no ceremonial marriage took place after her decree was granted. The chancellor could not find enough in the proofs to establish a common-law marriage, he, therefore, granted the prayer of plaintiff’s bill, annulling the marriage.

The burden of proof rested with defendant to establish a common-law marriage after her decree of divorce was granted. She testified that he invited her to his bed again and that they resumed the marital relations and thereafter continued them, as they previously had, and that he treated her as his wife and spoke of her to others as such. There is but slight corroboration of her claims. Plaintiff denied that they ever resumed the marriáge relations and denied that there was ever any agreement to resume them, and denied that he treated her or spoke of her to others as his wife. Should we give credence to her claim that cohabitation was resumed we think her proofs fail to show that the relation was resumed under conditions that would establish a common-law marriage. It is not enough that they cohabited after her divorce, the same as before, unless they did so with a mutual understanding that they should accept each other as husband and wife, otherwise their relations were illicit. The case must fall in the class represented by Van Dusan v. Van Dusan, 97 Mich. 70.

We are of the opinion that upon the whole record) defendant has failed to establish a common-law marriage and we, therefore, agree with the chancellor in annulling the marriage. The decree of the lower court will be affirmed. No costs will be allowed either party.

Moore, C. J., and Steere, Brooke, Fellows, Stone, Clark, and Sharpe, JJ., concurred.


author: Steere, J.

text:
    PEOPLE v. FOSTER.
    1. Homicide — Appeal and Error — Failure to Put in Available Defense.
    In a prosecution for murder the failure to put in an available defense, on the theory that the weakness of the prosecution renders it unnecessary, cannot, in the field of facts, be in itself recognized as a ground of relief against an adverse judgment.
    2. Same — Evidence—Confessions.
    Testimony by a police officer as to the voluntary admissions made by one of two defendants to him in the presence of the other defendant, held, admissible.
    3. Same — Voluntary Confessions — Admissibility—Duress.
    A statement by the officer to the accused that he “better make sure of. it and tell the truth,” where no attending threats, promises, trickery, duress, or inducements are shown, did not render the confession made in response thereto inadmissible.
    4. Same — Evidence—Hearsay—Identification of Accused by Wounded Person.
    The statements and declarations of the person injured, made in the presence of the accused, which charged him directly with the crime, or which were in any way relevant to his guilt, which he failed to deny, are competent evidence against him. ¡

    Error to recorder’s court of Detroit;- Jeffries (Edward J.), J.
    Submitted June 17, 1920.
    (Docket No. 88.)
    Decided September 30, 1920.
    Rehearing denied December 21, 1920.
    Charles Foster and William Burns were convicted of murder in the first degree and sentenced to imprisonment for life in the State prison at Jackson.
    Affirmed.

      Edward J. McCarthy, for appellants.

      Alex. J. Groesbeck, Attorney General, Matthew H. Bishop, Prosecuting Attorney, Van H. Ring and Allen W. Kent, Assistants Prosecuting Attorney, for the people.
   Steere, J.

Defendants were convicted by the verdict of a jury in the recorder’s court of the city of Detroit of the crime of murder in the first degree;. They were charged in the information filed against them with feloniously killing and murdering by shooting one Leo Ciesielski on December 31, 1919. Ciesielski was a fireman serving in the Detroit fire department. On the morning of December 31st he left his fire station on leave of absence for the day. He was found late that evening in the vicinity of Grand River avenue and Detroit Terminal Railroad in the western part of the city, as is claimed by the prosecution, seriously wounded. He was delivered at the city receiving hospital about midnight suffering from two bullet wounds, one in the left side of the neck and the other deeply penetrating his body. There appearing “evidence of perforation of some abdominal viscus” he was soon operated upon by the doctor in charge who found that the bullet in his body had perforated the lower lobe of his left lung and stomach. This caused his death, which occurred on the night of January 15, 1920.

The morning after he was taken to the hospital, detectives of the police department and so-called “homicide squad” were furnished with a description of the parties claimed to have assaulted him, and two officers of the detective force were put upon the case. The description of Ciesielski’s assailants then furnished the officers, as testified to by one of them named Lockwood, was, “of two colored men — 22 and 35 years old — one wore an army overcoat,” which he stated, however, on cross-examination “was not all the description,” but what further clues, if any, they then had does not appear.

On January 2d these two defendants were in a group of recently arrested prisoners brought to the central police station, also called “police headquarters,” where they were collected together in what the officers called the “bull pen” in the station basement. It is explained in the brief of defendants’ counsel to be a custom of the police department to bring prisoners in from the precinct stations where first locked up to this “pen!’ in the central station “for inspection, examination, etc., and to aid the detectives in working up their cases.” An officer named Heig, who had a description of the men wanted in this case, called attention to these two men, who had been picked up on other charges, as resembling the. description. Lockwood and other of the officers then went down and looked at the prisoners. After communicating with the physician in charge as to his condition they took defendants in company with another colored prisoner before Ciesielski at the hospital, to ascertain if he could recognize them. The men were lined up before his bed and he pointed out the two defendants, saying emphatically, as Lockwood testified, “There is the two men that done it, that shot me; don’t let them get away.” Asked about the other man and if he was sure, he repeated it was defendants “positively.” As told by Officer Price, “he raised himself up on his elbow and pointing at Bums and Foster, he said, “Hold those men; those are the two men that held me up and shot me.”

After full and positive identification by Ciesielski the men were returned to confinement and separately interviewed by Lockwood. Burns, the younger of the two, admitted they were the two men, related circumstances of the transaction, told where he met Foster, who had a gun, that they went out on a Grand River car, described the locality of the hold-up which he admitted he was in but insisted he had no gun and Foster was the one who did the shooting. Burns was then taken before Foster and in his presence. “told about the shooting.” Burns was. taken to the prosecuting attorney’s office where his statement was taken in writing. Foster denied that Ciesielski had identified him as the man who did the shooting,- and refused to make any statement. On January 3d, the men were again taken to the hospital owing to Foster’s denial of Ciesielski’s identifying him as the one who did the shooting, where he again identified them and said, “They are the men that shot me,” and being asked which man, he pointed to Foster and said, “That is the man that shot me.”

Upon the trial defendants were represented by two competent counsel, apparently as familiar with the case and at least as well prepared for trial as the attorney conducting the prosecution who, in reply to an objection made and sustained by the trial judge on his own motion to an answer by a witness who he stated “roams all over the field,” made the somewhat striking explanation (as applied to a murder case): “I never talked to the witness. I never knew of this case until we started to try it.”

The defense was content to rest on cross-examination of the people’s witnesses, conducted at times by the presiding judge, objections against and motions to strike out testimony. Burns’ written statement, or “confession” as it was called, appears, though somewhat hazily, to have been proven and introduced, or at least offered, in evidence as a motion was made by defendants to “exclude it,” which was overruled at the time but the question inferentially held open for testimony as to whether or not it was voluntarily made. The only testimony which followed touching the subject was further cross-examination of Lockwood by court and counsel as to the ‘circumstances under which Burns’ statements were made. The written statement does, not appear to have been finally admitted or read before the jury and before the conclusion of the case the court said: “The statement at the prosecuting attorney’s office and all statements made by Burns to this Lockwood will be excluded.”

After counsel for the defense announced they would put in no testimony and both parties rested the’ court said to counsel:

“Now then, gentlemen, leave these confessions alone, both of you. I will instruct the jury, so far as the confessions are concerned or anything said in relation to them, they shall obliterate it from their minds.”

The court did so instruct the jury.

Defendants’ counsel did not then request a directed verdict of not guilty but claimed that in any aspect of the case there was no competent proof of attempted robbery, or malice, and requested the court to instruct the jury there could be no conviction of murder in the first degree. This was refused and the case submitted to the jury on a very full and fair charge, defining each of the offenses covered by the information, burden of proof, reasonable doubt, the duty of the jury in determining the issue, etc.

Defendants subsequently made a motion for a new trial on various grounds, particularly insisting upon the prejudicial effect of incompetent testimony, as to deceased’s statements, given in the presence of the accused, against them, and urging that admission of statements made by Burns to Lockwood, though afterwards stricken out and the jury instructed to disregard them, was a prejudicial error which the subsequent ruling and instruction could not cure as the verdict showed; that relying upon its(elimination and the total insufficiency of the people’s evidence without it to make a cáse warranting conviction, though intending at the outset to introduce “strong evidence of their innocence,” defendants’ counsel were thus misled into offering no testimony since “it seemed unjustifiable to take up the time of the court with unnecessary rebuttal.”

Upon the last proposition we are not entirely convinced that counsel did not exercise good judgment in not calling defendants as witnesses, as is stated was at first proposed, in view of the very frank statement of a deterring influence appearing later in the brief to the effect that “Foster was unfortunate enough to have a criminal record, and the defendant Burns was a young and somewhat stupid fellow who, notwithstanding his probable innocence, might perhaps have been made to appear very unfavorable before the jury.” But the failure to put in an available defense on the theory that the weakness of the prosecution renders it unnecessary can not, in the field of facts, be in itself recognized as a ground of relief against »an adverse judgment.

That the testimony as to admissions by Burns, if erroneously admitted, though subsequently stricken out, was presumably prejudicial in its effect on the minds of the jury and materially affected the result is a more meritorious subject. As bearing upon that contention the door seems open to the rather unusual inquiry as to whether the trial court ruled erroneously against the prosecution, for if the testimony was admissible there could be no prejudice in the jury considering it. The contents of the written confession, which was ruled out, did not get to the jury and is not in the record. What Bums told to Lockwood and repeated in the presence of Foster and others is before us and a proper subject of inquiry. What he was originally arrested for does not appear, but when he made those statements he knew that he was under arrest and accused of participation with Foster in a holdup in which Ciesielski was shot, and that the latter had just positively identified them as the men who held him up and shot him. If it was a fact that he was in the affair, as his accuser who recognized him had asserted, but had no gun and took no part in the shooting as he stated, it was not an unnatural thing for him to form his own conclusion that the best thing for him to do was to tell the truth about it.

There is no proof or claim that any artifice or duress was resorted to or promise or threat made to him except as the court construed the language of Lockwood who had just seen him identified by the wounded man, and after his. return to the central station told him “he better make sure of it and tell the truth.” The presiding judge concluded a somewhat grilling cross-examination of this witness on that subject as follows:

“What did you mean by ‘you better tell the truth?’
“A. Tell the truth about this affair, whether he was out there or not.
“Q. What did you mean that he better do it, it would be better for him?
“A. No, I did not say that.
“Q. What did you mean by saying it would be better for him to tell the truth?
“A. Just an expression I used.
“Q. Is that all you had in mind when you said you better tell the truth? What did you mean by that?
“A. Just a way I had of expressing it, your honor.
“Q. You did not mean anything else?
“A. No, sir.
“Q. But you did say he better tell the truth?
“A. Yes, sir.
“The Court: Well, I think that comes within the rule, doesn’t it?
“Mr. W.: Decidedly it does.
“Mr. K.: Where has it been so ruled?
“The Court: Well, ‘better to tell the truth,’ it would be better for him.
“Mr. K.: He did not say that.
“The Court: That is what he said. What is the inference? You have my sympathy, Mr. K., my profound sympathy.”

It is difficult to conclude that the language actually used was in effect a threat or promise leading Burns to believe it was for his interest to make a confession, regardless of its truth or falsity, which is said in People v. Dunnigan, 163 Mich. 349 (31 L. R. A. [N. S.] 940), to be the true reason of the rule for excluding involuntary confessions.

In People v. Prestidge, 182 Mich. 80, where the repeated statement, by an officer to a prisoner charged with rape that he “had better tell the truth about it” is somewhat stressed in connection with certain other conduct clearly duress, there were three officers pressing the prisoner with questions for over three hours, and the one who told him he had better tell the truth, also told him in that connection that “he was lying” when he denied his guilt. To insist an accused is lying when he denies his guilt and had better tell the truth, is palpably to declare him guilty and a liar, if he tells anything else. An examination of that case shows the conduct of the officers and situation there generally are so entirely different from the instant case that the similarity of expression By the officer as there used is of little significance here. We are neither referred to nor find any case where it is held that the bare advice given by an officer to a prisoner that “you better tell the truth,” where no attending threats, promises, trickery, duress or inducements are shown, is held to preclude a reply because its effect is to impel a confession regardless of its truth or falsity. Phrases and sentences in an opinion applied to the facts in special cases are often appropriate in the connection used, where they are not in the abstract a rule of general application. This court has often cited and reaffirmed as containing the true rule People v. Barker, 60 Mich. 277, 295. It is there said:

“The presumption is that confessions have been freely made until the contrary appears: 1 Chit. Crim. Law, 571; Williams’ Case, 1 City Hall Rec. 149; Roscoe Crim. Ev. 43; Com. v. Culver, 126 Mass. 464.
“The_ practice to be pursued in the introduction of confessions in evidence has not always been uniform. In Phillips on Evidence it is said:
“ ‘For the purpose of Introducing a confession in evidence, it is unnecessary, in general, to do more than negative any promise or inducement held out by the person to -whom the confession was made:’ I Phil. Ev. 551.
“Mr. Chitty, ih his work on Criminal Law, at page 572, says:
“ ‘The practice, however, at present, is for the prosecutor’s counsel, on his examination of his own evidence in chief, to inquire of the witnesses all the facts, so as to satisfy the jury that the confession was voluntarily made and duly taken.’
“The question of the admissibility of the evidence is for the court, and not the jury, and is the subject of a preliminary inquiry: 1 Phil. Ev. 543; 1 Greenl. Ev. § 219.
“Unless it appears from the testimony of the witness, or other evidence in the case, that the confession was not voluntary, or was made through the influence of fear or hope; or unless the evidence offered is objected to upon the ground that the confessions were made in consequence of fear, or of favors held out to the prisoners, — no preliminary examination into the facts and circumstances is called for.”

Vide, also, People v. Owen, 154 Mich. 571 (21 L. R. A. [N. S.] 520).

The trial court erroneously struck out this testimony, and its lingering influence on the minds of the jury, if such was the case, involved no prejudicial error.

It is further urged for defendants that testimony as to what was said by Ciesielski when defendants were taken before him for identification was incompetent as hearsay evidence, not being an ante mortem statement put in legal form, or dying declaration, and proof of silence of the accused on that occasion was not competent because they were in custody, not expected to reply nor called upon to contradict such charge. Though mortally wounded, as eventuated, Ciesielski did not die until nearly two weeks later and no further statement by him is shown to have been procured. What he said on that occasion was manifestly not a dying declaration. Its claimed admissibility was to show the conduct and demeanor of defendants when identified arid charged by deceased with the assault committed upon him. Defendants’ counsel cite numerous authorities from other jurisdictions holding that proof of accusing stateriients made in the presence of an accused while in custody are inadmissible, and cite the case of People v. Courtney, 178 Mich. 137, as substantiating their contention. We do not so understand it, neither are we cited to any case where this court has so held. The authorities upon that question in other jurisdictions are not harmonious, which is noted in the Courtney Case as follows :

“Some of the States hold that statements made while the accused is under arrest are inadmissible, but we think the great weight of authority is to the effect that the mere fact that the accused is in custody, will not of itself exclude the statement, if the circumstances otherwise properly call for a reply or denial.”

In the Courtney Casé the defendant was charged with a burglary committed in Mt. Morris, Michigan, on November 24, 1908, and finally arrested by an officer in Oakland, California, on March 25, 1912. The Michigan sheriff who went to California after him was permitted to testify that the officer from whom he received the prisoner delivered also some burglar tools, stating in the presence of the prisoner they had been found on the latter. It was not shown that the conversation was addressed to the prisoner, that he said anything or that he heard it. The court held the' admission of this evidence of possession so long after the alleged burglary was too remote, citing authority. Such being,the case, what the prisoner did or said about the tools when turned over to the sheriff would seem to be immaterial, and what is said in reference to his silence not essential to a decision of the case.

The court said in concluding the opinion:

“The trial court stated during the argument of respondent’s counsel before the jury that they (the jury) could consider the ‘satchel and stuff’ in California, ‘for anything they desire.’ Just what was meant by this remark we do not know, but it was certainly broad enough to permit the jury to consider the possession of such tools by respondent in California, as evidence of a burglary committed nearly 3% years before. We think this was reversible error.”

In People v. Flynn, 96 Mich. 276, proof was admitted of statements, made by the person assaulted to the sheriff in the presence of the accused. Of this it was said:

“The statements of Lizzie in the presence of Flynn were admissible, in connection with Flynn’s failure to deny them. She stated the fact of the intercourse, which he had already admitted. She gave as a reason that she feared him because of his threats, which he did not deny. This failure to deny the charge of threats was a matter for the jury.”

Many authorities are cited from other jurisdictions in 12 Cyc. p. 431, well sustaining the following proposition :

“The statements and declarations of the persons injured made in the presence of the accused, which charge him directly with the crime, or which are in any way relevant to his guilt, which he failed to deny, are competent evidence against him.”

In State v. Hamilton, 27 La. Ann. 400, it is held that the declarations of a person injured identifying the accused when brought into his presence under arrest, and hand-cuffed is competent.

It has also been held that such testimony is competent, although the accused did not remain silent. In State v. Nash, 10 Iowa, 81, is found a somewhat similar state of facts to that presented here, except that the accused denied his identity. One Harrison was shot on the 2d of April and on the 4th one Nash was brought into his presence in company with others, to ascertain whether Harrison could recognize the person who shot him. Harrison pointed out Nash and said to him'that he was the man. Nash answered that Haxrison was mistaken and Harrison replied that he was not mistaken. The court there said:

“We know of no rule or principle which forbids such evidence going to the jury. It is admissible, leaving its weight to them. The practice is common of showing what the accused said or did, or what manifestation of feeling or passion he exhibited when arrested or when charged with crime. The weight of such proof may be slight but this is left to the judgment of the jury; we have to do with its admissibility only.”

That decision is cited and followed in State v. Dillon, 74 Iowa, 653 (38 N. W. 525).

We conclude in this case that what occurred at the time defendants were taken before the deceased for identification was admissible, its weight, whether slight or great, being for the jury and properly left to their judgment. For the foregoing reasons and after an examination of the entire cause we'are not of the opinion that it affirmatively appears that the assigned errors complained of have resulted in a miscarriage of justice.

The judgment will therefore stand affirmed.

Moore, C. J., and Brooke, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


text:
    GREENBERG v. SAKWINSKI.
    1. Trial — Pleading—Abandonment of Counts.
    A statement by plaintiff's counsel, in the course of the trial, that he was ready to plant his action on the second count of his declaration, but nothing further was done, held, not to amount to an abandonment of the other two counts.
    2. Same — Election of Counts.
    Where the three special counts fully advised of all plaintiff claimed, were cumulative, and not inconsistent, no election could be required.
    3. Same — Brokers—Commissions—Termination of Agency — Notice — Question for Jury.
    In an action by a real estate broker for commissions, where one count of his declaration charged an exclusive listing, and that his agency could not be terminated without notice, and the testimony as to whether there was notice of its termination was in conflict, the issue was properly left to the jury.
    4. Brokers — Commissions—Liability of Seller on Refusal to Perform
    A provision in the contract between a broker and his client that payment of the commission was to be “made at the time of settlement of the sale,” could not be taken advantage of by the client to evade liability for the commission, where the consummation of the sale was prevented by his refusal to perform.
    5. Same — Statute of Frauds — Written Agreement to Pay ComMISSION.
    A written agreement to pay a commission for the sale of real estate is valid, although it fail to state the selling ' price or terms of sale, etc.
    6. Same — Compliance with Statute.
    Where the seller accepted in writing a legal and enforceable land contract to. sell the property to the purchaser produced by the broker, the statute of frauds was satisfied.
    Error to Wayne; Goff (John H.), J.
    Submitted June 15, 1920.

      On right of broker to commissions where he procures purchaser at price stated by his principal, but on slightly different terms in regard to cash or time of payment, and the owner refuses to consummate the sale, see note In 21 L. R. A. (N. S.) 935.

      (Docket No. 49.)
    Decided September 30, 1920.
    Assumpsit by Nathaniel J. Greenberg against Nicholas Sakwinski for commissions on the sale of real estate. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Charles Bowles, for appellant.

      McIntyre & Robinson, for appellee.
   Steere, J.

In July, 1917, defendant and his wife owned a recently completed apartment building called the Cadillac apartments, located at Nos. 1860-1866 East Grand boulevard in the city of Detroit, which they desired to sell. Plaintiff was engaged in the real estate business with offices in the Penobscot building and some time after July defendant authorized him to secure a purchaser, stating a selling price of $110,000. Plaintiff worked to effect a sale and presented the matter to various prospective purchasers. In the fore part of September he succeeded in interesting with fair assurance of success a prospective purchaser named Louis I. Frank. Up to that time no agreement, oral or written, had been made between the parties in regard to a commission. On September 13, 1917, defendant went to plaintiff’s office to discuss propositions plaintiff had told him of and the latter then asked for a written agreement regarding the amount of his commission for selling the property. This was agreed upon and put in writing, as follows:

“Nathaniel J. Greenberg,
“Real Estate,
“730 Penobscot Building,
“Detroit.
“September 13, 1917.
“I, N. Sakwinski, hereby agree to pay you, Nathaniel J. Greenberg, the sum of eight hundred dollars ($800.00) as your commission upon the sale of my apartment house, located at 1360-66 East Grand boulevard, known as the Cadillac apartments, payment to be made at the time of settlement of sale. No other parties to be connected with the sale.
“N. SAkwinski.
“I hereby accept the above.
“N. Greenberg.”

They discussed various possible deals plaintiff had ■worked on, and, as Frank seemed the most promising, they went together on that day to his office where, after considerable discussion and negotiation regarding price, terms, etc., a written agreement was entered into between defendant and wife and Frank by which they agreed to sell him the property for $101,000 payable as follows: $300 down on signing the contract, $41,000 to be paid by delivery of a warranty deed from Frank to them of certain property-he owned, at an agreed value of $50,000 subject to a mortgage of $9,000 which they agreed to assume, Frank to assume a mortgage of $46,000 on the apartment building he was purchasing, and the balance of. $13,700 in cash on concluding the transaction, which was to be done' within 25 days after delivery by the respective parties to each other of abstracts of their properties brought down to date. The $300 eash down was paid by Frank when the contract was signed and the abstracts agreed upon between the parties were duly delivered, but the deal was never consummated owing, as plaintiff claimed, to the fact defendant later agreed to take a certain contract worth $14,000 from Frank in lieu of the final cash payment of $13,700, Frank, however, being ready and willing at all times to pay cash if defendant wished, and while that matter was pending defendant unexpectedly and without any notice to plaintiff or Frank sold the property to other parties.

Defendant claimed on the other hand that Frank did not have the money and could not make the cash payment to him, but was attempting to raise the money on a land contract which he owned and desired defendant'to take, which was not acceptable; after which plaintiff advised defendant that Frank could raise $5,000 in cash which defendant agreed to take rather than let the deal fall through and the parties met at Frank’s office where he admitted he could not even raise the $5,000 in cash which he had offered, whereupon defendant called the deal off and sold to other parties.

When plaintiff learned that defendant had sold the property to others he demanded his commission and on defendant’s refusal this action was brought. Upon the trial the court permitted the parties to go fully into what was said and done subsequent to the signing of the written agreement for a commission, but held that all testimony as to previous negotiations or understandings upon the subject was. merged in the writing and was not admissible to vary its terms or affect its construction.

At the conclusion of plaintiff’s testimony defendant’s counsel' moved for a directed verdict on the two grounds that the writing was not sufficient under the statute, and the condition precedent in it was not fulfilled, which was denied. This motion was renewed -at the conclusion of all the testimony, and plaintiff’s counsel then also asked for a directed verdict in his favor. Both motions were denied and the case submitted to the jury resulting in a verdict and judgment for plaintiff in the sum of $865. Defendant moved for a. judgment non obstante, which was denied, followed by a motion for a new trial with request for written findings and conclusions of law, which were filed denying said motion. Written exceptions were thereupon filed to the court’s findings.

Defendant’s 24 assignments of error are grouped into five propositions as follows:

"1. The written agreement here sued upon, Exhibit 1, is void under the amendment to the statute of' frauds.
“2. Under the terms of Exhibit 1, no commissions were payable or owing until title passed and the sale was consummated, which was never done, and, therefore, no commissions were earned.
“3. Plaintiff did not prove such performance of his contract as would entitle him to a commission.
“4. The court erred in charging the jury that Exhibit 1 gave plaintiff an exclusive agency for the sale of defendant's property, and if terminated by him without notice, the plaintiff would be entitled to recover.
“5. Plaintiff did not procure a purchaser ready, able- and willing to buy.”

Of the last contention it is sufficient to say that the testimony of the parties was in conflict upon whether Frank, the purchaser whom plaintiff produced, was ready, able and.willing to pay. A special question was submitted to the jury upon that issue and answered in the affirmative.

As to the fourth contention the court held the concluding sentence in the agreement (“no other parties to be connected with the sale”), gave plaintiff an exclusive agency of the sale of the property, upon which there was no time limit, instructing the jury, “that-said agreement could not be terminated by defendant without a notice to plaintiff, and, if defendant did not give plaintiff such notice, the plaintiff is entitled to recover the commission agreed upon when the sale of' this property was made through other persons.”

Defendant’s fourth contention, to the effect that the court committed error in instructing the jury plaintiff was given an exclusive agency for the sale of this, property by the terms, of the agreement and if terminated by defendant without notice plaintiff would be entitled, to recover, is based chiefly on the claim that plaintiff’s counsel elected to stand on the second count in his declaration, which averred that on signing and delivering the land contract, between defendant and his wife and Frank, plaintiff’s commission was earned and he was entitled to the same. The election is claimed to have been made early in the trial during the argument of an objection to a line of cross-examination of plaintiff by defendant’s counsel when the latter asked plaintiff’s counsel: “Q. Do you claim your right to recover exclusively on that proposition?” and he replied, “I have three counts in my declaration, if any one of them is decided in my favor plaintiff is entitled to a verdict. I am ready at this time to plant it on one count in the declaration,” and being further interrogated met the challenge by asserting he did so. Asked by the court which count, he named the second and said, “We might as well have that question determined now.” To which the court assented and both counsel made lengthy arguments upon various phases of the case, the jury in the meantime being excused. During this exchange of views various matters were discussed and counsel for defendant apparently changed his attitude somewhat. With permission of the court he withdrew his previously given consent to admission of the agreement in evidence and interposed an objection to it. This proceeding was objected to by plaintiff’s counsel for various stated reasons, but after the discussion had run its course the court ruled that the written agreement as to a commission was admissible and overruled plaintiff’s objection to the cross-examination which started the debate. Taking of testimony before the jury was then resumed at the point where it had been halted for a time.

We do not find anything further in the course of the trial to indicate that counsel abandoned all but one of his counts, or the court or opposing counsel then, regarded his assertion in side-bar» debate, that he was ready “at this time” to plant it on one count was a formal election or went beyond the -argument then in progress, or were in any way misled. When both parties rested plaintiff’s counsel requested the court to direct a verdict on the ground that plaintiff’s agency was exclusive with no time limit and defendant could not terminate it without notice to plaintiff. No suggestion was then made that he had elected to abandon that claim. The three special counts fully advised of all plaintiff claimed, were cumulative, not inconsistent and required no election. The testimony was in conflict as to whether there was notice of termination of the agency and that issue was left to the jury by the court under proper instructions. We discover no error in that particular. >

The claim that no commission was payable, or owing, until title passed and the sale was consummated, under the language of the contract that payment was to be “made at the. time of settlement of the sale,” calls for no extended discussion. If plaintiff fully performed on his part and defendant’s mal-conduct rendered it impossible to make “settlement of the sale” according to the land contract he had signed he is estopped from taking advantage of his own wrong.

Counsel’s contention that this written agreement is void under the amendment to the statute of frauds, Act No. 238, Pub. Acts 1913 (3 Comp. Laws 1915, § 11981), requiring agreements for commissions on sale of real estate to be in writing, is predicated on its failure to specify the selling price, or terms of sale; and it is urged that to be valid under the statute of frauds a contract to pay a commission on sale of real estate, like any other contract required to be in writing, must be complete in all its parts and leave nothing to rest in parol. It may be conceded that the agreement as executed by the parties was an awkward effort, left by the scrivener in the particulars mentioned unilateral and what might in a sense be called a satisfaction contract. But it was a valid contract of agency so far as it went. It contained a promise in writing to pay a commission “for or upon the sale of any (an) interest in real estate.” It specified plainly the parties to the agreement, nature of the service to be performed, property to be sold and commission to be paid. That plaintiff accepted this contract with a disadvantageous contingency to him, does not impair its validity. All such contracts necessarily involve a contingency that the agent may not be able to produce a purchaser ready, able and willing to purchase at the generally specified price and terms the seller has agreed to accept, and in this case for a price and on terms the seller was satisfied with and willing to accept. Until he did so, it may be conceded the contract was not much of an asset to the agent. But the seller in this case did accept them in writing, by signing a legal and enforceable land contract to sell the property to the purchaser plaintiff produced, thus satisfying the statute of frauds.

This situation is well illustrated in principle by Justice Ostrander, in Cochran v. Staman, 201 Mich. 630, as follows:

“The writing relied upon, in my opinion, is a promise to pay a commission for or upon a’ sale of real estate. So far as the statute of frauds is concerned, no more is required. Suppose that the seller, in this case, and the proposing buyer, produced by plaintiff, had agreed upon terms of payment and completed a sale and conveyance of the premises for $100 an acre. In an action for the commission, could the seller defend upon the ground that the promise to pay the commission was not in writing. I think not.”

As we have pointed out, there were material issues of fact as to events subsequent to the parties entering into this written agreement for a commission. Apparently the most vital and square cut of these was whether Frank was ready and able to pay the $13,700 final payment according to the terms of the land contract between him and defendant and wife. This was submitted to the jury as a special question at defendant’s request and answered in the affirmative.

The material issues of fact raised by the testimony were left to the jury under proper instructions.

We find no prejudicial error in this record calling for reversal, and the judgment will stand affirmed.

Moore, C. J., and Brooke, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


text:
    MARTIN v. CRITTON.
    1. Equity — Jurisdiction—Exchange of Properties — Fraud.
    In a suit to enjoin defendants from dispossessing plaintiffs, on a writ of restitution, of a farm received in exchange from defendants, in the payments on which plaintiffs had defaulted, and to set aside said exchange on the ground of fraud, defendants’ contention that the court was without'jurisdiction to entertain the proceeding, held, answered adversely by what was done in the case of Gregor v. Olde, 209 Mich. 43.
    2. Fraud — Exchange of Properties — Evidence—Sufficiency.
    Evidence as to misrepresentation of the value of the farm, the character of the soil, and the condition of the orchards and vineyard which induced plaintiffs to part with their business in exchange therefor, held, to justify a finding that defendants were guilty of fraud.
    Appeal from Van Burén; Des Voignes (L. Burget), J.'
    Submitted June 10, 1920.
    (Docket No. 39.)
    Decided September 30, 1920.

      Bill by Martin A. Martin and another against Glen W. Critton and another to enjoin an action at law, and to set aside an exchange of property for fraud. From the decree rendered, all parties appeal.
    Affirmed.

      Thomas J. Cavanaugh, for plaintiffs.

      W. J. Barnard, for defendants.
   Moore, C. J.

On the 20th day of September, 1917, the plaintiffs were owners of a stock of furniture which was in a leased store at 2929 Woodward avenue, Detroit. Glen W. Critton, the defendant, was the owner of 160 acres of land in Antwerp township, Yan Burén county, Michigan. On the.' 20th' day of September, 1917, plaintiffs exchanged their stock of goods for the 160 acres of land and certain tools, implements and stock which were on the farm and entered into a written contract whereby they were to make other payments. The defendants reserved the right to remove the east tenant house and the barn known as the hay barn; plaintiffs were to pay $1,000 •on or before October 1, 1917, $1,800 on or before 90 days from September 20, 1917, at which time defendants were to convey the lands by deed, taking back a mortgage for $7,000. Plaintiffs took posséssion of the farm and the personal property. Defendants took ■over the stock of goods and a súb-lease of the premises. Plaintiffs defaulted in their payment of $1,000 due ■October 1, 1917, and on the $1,800 payment due December 20, 1917. January 28, 1918, defendants caused to be served upon plaintiffs a notice of forfeiture. February 27, 1918, defendants instituted a summary proceeding at law, before a circuit court commissioner at Paw Paw, to obtain possession of the premises. Summons was served on the Martins in Detroit. The case was heard March 1st. The Martins did not appear and judgment for restitution of the premises was awarded Critton.

On the 2d day of April, 1918, the plaintiffs filed this bill. They allege fraud and misrepresentations made by defendants in the exchange of property and charge collusion by defendant and his brother and their agents to cheat and defraud them; that Mr. Watson, the agent of defendants, told Mr. Martin the farm had a vineyard of 20 acres, an apple orchard of 20 acres, a pear orchard of 7 acres; that the owner asked $26,000 for the same; that after one or two interviews the defendant Glen W. Critton told him the farm was located in the Michigan fruit belt; that as soon as the Dixie Highway was built the land would be worth $250 an acre; that the 20 acres, of grapes were well worth what he was asking for the farm; that the previous year the vineyard produced 50 tons of grapes and that they brought $50 a ton; that the 7 acres of young pear trees were all in bearing; that there was an apple orchard of 20 acres, young and healthy and all bearing; that the apple orchard alone was worth $9,000; that the soil was sandy loam, with clay bottom sub-soil; that for the 8 acres, across the road from the buildings he was offered $500 an acre, and that he would not sell it; that he was asking $26,000 for the farm and stock and implements, but would be willing to take $25,000.

It is further alleged that Mr. Martin told Mr. Critton that he knew nothing about farming or fruit; that he would rely on him as an Odd Fellow to do the square thing. That in all that was done the plaintiff relied on the representations of defendant and his agents; that he was ignorant of land values, or the condition, cultivation and requirements for the production of fruit and its value; that defendant led him to believe that he could easily make his payments from the income from the farm and could easily secure a loan to satisfy the balance he was owing on the purchase price; that when the payments became due, he having no other means to malee such payments, only by security on the place which defendant knew, he sought to secure a loan on the land and then learned that it was poor land, such land that no one cared to take as security for a loan for the balance due on the contract.

Upon the filing of this bill a temporary injunction was made by the court restraining defendants from dispossessing plaintiffs on the writ of restitution for which judgment was taken in March, 1918. The de-i fendants answered the bill of complaint denying every act of wrongdoing and averred that the plaintiff visited the premises twice; that he could see and determine for himself what the land, the orchard, the vineyard and all its. appurtenances were, and that the plaintiffs acted on their own judgment; that they took possession of the premises and received for the crop of grapes alone nearly $2,100; that Mr. Martin shipped beans and potatoes to Detroit, sold pears in the market, and that the farm was well worth with the stock and tools he turned over $18,000 in cash and $25,000 on an exchange basis. The proofs were taken in open court, the taking of the testimony covering a period of four days. The trial judge was of the opinion that the land and personal property conveyed to the plaintiffs was worth not more than $7,000, and that the stock of goods exclusive of the 3 years’ lease which was sublet to the defendants was worth $4,000.

A decree was made from which we quote:

“On motion of Thomas J. Cavanaugh it is ordered, adjudged and decreed and this court by virtue of the authority therein vested doth order, adjudge and decree that the allegations of the bill of complaint have been sustained and that the defendant shall pay or cause to be paid to the plaintiffs or their attorney, the sum of $4,000 within thirty days from this date, and in consideration thereof the said plaintiffs shall quit, surrender and deliver up possession of said farm to the said Glen W. Critton, including the contract of sale and such of the personal property mentioned and described in said contract as is now on said farm.
“Should the said defendant fail to pay to the said plaintiffs within the time above limited said sum then the said plaintiffs may continue! to remain in operation and control of said lands and all of the other property described in the contract upon payment to the said Glen W. Critton of the sum of three thousand dollars in which event the said Glen W. Critton is hereby directed to convey to said plaintiffs or to such other person or persons as they shall direct said premises by a good and sufficient warranty deed free and clear from all encumbrances whatsoever, and if for any reason the defendant should fail so to do then upon the payment of said $3,000 the plaintiffs may record this decree which shall be effective to convey to plaintiffs title to said lands. Under this latter clause of the decree the defendant is given the right to remove the tenant house and hay barn from the land as reserved in the land contract, at any time within six months from this date.”

This decree suited neither of the parties and both plaintiffs and defendants have appealed. It is the claim of the plaintiffs that they have fully proven the averments of the bill and that the stock of furniture, good will of. the business and the lease were worth fully as much as the farm, and that it should be decreed to. be theirs without any further payments by them, inasmuch as the parties cannot be placed m statu quo. ,

Counsel for defendants quotes section 790 Cummins and Beecher’s Judicature Act (3 Comp. Laws 1915, § 12667) and contend that the court was without jurisdiction to entertain this proceeding without first requiring plaintiffs to give the bond mentioned in the section quoted. We think this contention is answered by what was done in the case of Gregor v. Olde, 209 Mich. 43.

The important question raised by counsel for defendants may be gathered by excerpts from his brief as follows:

“It is our contention that this was an exchange of properties, and that both plaintiffs and defendants exaggerated the value of their properties in said exchange, in fact, the plaintiffs committed an actual fraud, wilfully and intentionally. * * *
“This court has repeatedly held that they will not balance equities between parties where both are in the wrong, nor give the plaintiff relief against his own vice and folly. Rozell v. Redding, 59 Mich. 338.”

This contention is based upon the claim that an inventory made by Mrs. Martin was padded and that the debts against the stock were misrepresented. The inventory mentioned was not made until after the contract was made and when the list of creditors was furnished it was not untrue.

A reading of the opinion in the case cited by counsel will show it is easily distinguishable from the instant case. It may be well here to recall some of the testimony. We quote from a witness who had known the farm 12 years and who was supervisor of the township in 1917.

“Well, there are trees in the orchard, at a hasty examination, that look pretty good. There are other trees that are very badly peppered with scale. There are a good many trees where the water-sprouts have not been trimmed for so long that the water-sprouts are in some places higher than the'trees; grown up through the bottom right through the trees. They have not been trimmed for some time. There is a few trees back in the center of the orchard that have been trimmed some time past but they are well healed over and I would say it had been some few years since they had been trimmed at all from any evidence that I could see. There is a few trees that is cleaned out and they look better than the rest of them. These water-sprouts must have been growing for several years; two or three years, anyway. I would say the apple orchard was at least 12 years old, anyway. I saw the pear orchard; I didn’t think the pear orchard was in as good shape as the apple orchard. It seems to be neglected and the bark was in bad shape and the twigs were brittle on the end to the few trees I touched. I thought the pear orchard was in very bad shape. The vineyard has not been properly trimmed. The wood on there, I would say, was two years old. There was some sassafras growing there six or seven feet tall and a few oak grubs. The soil is sandy.
“Q. Was there any clay sub-soil?
“A. I don’t know.
“Q. What sort of sand?
“A. Yellow sand. That is the greater portion of it, and there is some blow sand, I would say, from where I looked at it. I observed the buildings just as we went by them. I am acquainted with the value of lands in that community. The fair market value of this farm in the fall of 1917 was about $4,000 this 160 acres, including buildings.”

There were a number of other witnesses who lived near the farm whose testimony was substantially the same.

We now quote in part from the testimony of defendant Glen Critton:

“I am acquainted with the value of farming land in and through the State of Michigan, and a fair cash value of that farm traded Martin in September, 1917, was $18,000, and a fair exchange value on trade wasi $25,000. There was very few apples that year on the; farm I traded. There was a lot of pears. I did not! tell Martin at any time that this land was worth $250' an acre when the Dixie Highway went through. I did not tell him that the year before the vineyard produced 50 tons of grapes and brought $50 a ton; I did not tell him that the apple orchard was worth $9,000 alone; I did not tell him that the persons who had previously occupied the farm had made money there; I did not tell him I had been offered $500 an acre for the three acres across the road; no, sir.”

His testimony as to values is not sustained by that of any other witness and notwithstanding his testimony that he did not make the statements as to the orchards and vineyard as sworn to by the witnesses for the plaintiffs, it goes to show the probabilities of his having made those statements for it is difficult to see how the value of the farm could be fixed at $18,000 unless the orchards and vineyard were in fine condition as the witnesses for the plaintiffs say he represented them to be.

Much stress is laid by counsel upon the testimony of two building contractors who place the value of the buildings at over $9,000. On the cross-examination they testified:

“I place the value on the buildings as buildings, regardless of their surroundings, neither did I consider that it made any difference where the buildings were located, so that my figures were based on the value of the buildings whether located in the country or in a village or in a city.”

The undisputed testimony is that many of these buildings were put up as shelter for sheep, cattle and other stock which were fed by grain and fodder that were brought from another large farm owned by the person putting up the buildings. The testimony is that their value on a fruit farm would be negligible.

It would profit no one to go over the testimony in detail. It is impossible to read the record without reaching the conclusion that representations were made as to the value of the farm, the character of the soil and the condition of the orchards and "vineyard which induced the plaintiffs to part with their business in Detroit, and that the statements were not true. We think the case is within the reasoning of Smith v. Werkheiser, 152 Mich. 177 (15 L. R. A. [N. S.] 1092); Yanelli v. Littlejohn, 172 Mich. 91; Face v. Hall, 177 Mich. 495; Merlau v. Kalamazoo Circuit Judge, 180 Mich. 393; Haener v. McKenzie, 188 Mich. 27, and the many cases cited therein; Pound v. Clum, 204 Mich. 28.

The decree of the lower court is affirmed. As both parties have appealed, no costs will be given in this court.

Steere, Brooke, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.