text:
    NOTT v. GUNDICK.
    1. Partition — Undivided Interests — Right to Question Plaintiff’s Title.
    The owner of an undivided one-half interest in land against whom partition proceedings were brought by the owner of the other one-half could not question plaintiff’s right to bring such proceedings because an intervener disputed plaintiff’s title, since defendant had no interest in such dispute.
    2. Same — Intervener’s Rights — Statutes.
    Since intervener’s right to intervene under 3 Comp. Laws 1915, § 12362, was “in subordination to, and in recognition of the propriety of the main .proceeding,” by submitting himself and his interest to the jurisdiction of the court he could not question the right of the court to determine his interest, and, when determined adversely to him, to grant the decree for partition.
    3. Same — Assignment—Validity—Evidence—Sufficiency.
    The conclusion of the court below that the assignment of a land contract to plaintiff was valid and that it antedated intervener’s quitclaim deed to the same interest from the same assignor, held, supported by the record.
    4. Same — Right to Maintain Partition Proceedings — Title-Sufficiency.
    Where plaintiff paid the balance due on the land contract and received from the vendor therein a warranty deed of the premises subject to said land contract, defendant’s contention that plaintiff’s title was insufficient to maintain partition, proceedings because the conveyance was nothing more than an assignment of the vendor’s rights in the property cannot be sustained, since the legal title was in the vendor and passed to plaintiff under said conveyance, subject only to vendees’ rights under the land con- ' tract.
    5. Same — Occutation of Premises — Rentals.
    Where defendant has occupied the house on the premises in question to the exclusion of plaintiff, the decree of the court below properly provided that any rental due from defendant to plaintiff from the .date of the assignment to the date of partition should be taken into consideration in making the partition.
    Appeal from Wayne; Hosmer (George S.), J.
    Submitted October 5, 1920.
    (Docket No. 13.)
    Decided December 21, 1920.
    Bill by Lettie Nott against Martha Gundick for partition of certain real estate. Edward E. Hill was permitted to intervene and filed a cross-bill, claiming an interest in the property. From a decree for plaintiff, defendant and intervener appeal.
    Affirmed.

      Charles C. Stewart and William C. Gottman, for plaintiff.

      Samuel W. Shier, for defendant.

      Fitzgibbon & Quail, for intervener.
   Sharpe, J.

On December 1, 1914, Albert Eastman entered into a land contract to sell and convey two lots in the city of Detroit to Albert Gundick and Martha, his wife, for a consideration of $2,600. On April 18, 1919, a decree of divorce dissolving their marriage was granted. In this decree each of the parties was awarded an undivided one-half interest in the equity they had under the land contract in the two lots. This decree was supplemented by another, made on May 12, 1919, which awarded the entire interest under the Eastman contract to Albert on condition that he should pay to Martha the sum of $555. This amended decree was vacated by this court in Gundick v. Gundick, 208 Mich. 34, except in so far as it corrected the description of the premises in the original decree. The opinion was filed oh December 22, 1919.

Pending the decision on appeal, the plaintiff, acting through her brother-in-law, Charles C. Stewart, procured an assignment from Albert Gundick of his interest in the Eastman contract, subject to the payment to be made to Martha under the amended decree, paying therefor $555, and on June 13,1919, Eastman conveyed the lots to plaintiff by warranty deed, subject to the land contract executed by him to Albert and Martha Gundick, upon which there was then stated to be due the sum of $1,700.

It further appears that the intervener, Edward E. Hill, who was a dealer in real estate, being informed that the property was for sale, entered into negotiations with one Anna Manderano for its purchase by her and procured a check from her for $100 as a down payment. This check was delivered by Hill to Mr. Gottman, who was attorney for Albert in the divorce proceedings, who held it a few days. Immediately after the signing of the amended decree, Gottman informed Hill that he would give him four or five days to sell the property and, Mrs. Manderano being absent from the city, Mr. Hill procured William Sherman Lyster to purchase it and delivered to Gottman a certified check from Lyster for $1,200, which check Gottman deposited in the bank to the credit of his personal account. This money was afterwards returned to Lyster.

There was a dwelling house on the lots, of which Martha had retained possession. The plaintiff deposited with the clerk of the court a check for $555, payable to the order of Martha, in compliance with the terms of the amended decree, and demanded pos-session. This was refused by Martha, and on application to the court a writ of assistance was granted plaintiff. Martha filed a bond to stay proceedings and took her appeal to this court. After the decision in this court the plaintiff, by permission of the court, withdrew the deposit made by her, demanded of Martha the amount due under the Eastman contract on her undivided one-half interest, and on her refusal to pay served notice of forfeiture of her interest under the contract. Plaintiff then began proceedings before Circuit Court Commissioner May to recover possession, whereupon Martha filed a bill against plaintiff to restrain such proceeding. This was, on motion of plaintiff, dismissed. Commissioner May finally determined that there was $887.45 due from Martha under the contract and this amount, together with the costs, she paid into court. This was accepted by plaintiff and the deed of an undivided one-half interest in the lots executed by her to Martha. Plaintiff then filed this bill for partition. The defendant Martha answered, denying that plaintiff owned the other undivided one-half interest in the lots and asked that the bill be dismissed. In the meantime, and on May 24, 1919, Albert Gundick conveyed the lots by quitclaim to the defendant Hill for a stated consideration of one dollar and other good and valuable consideration.

Pending the hearing, the attention of the trial court was called to the fact that Hill had secured such quitclaim deed and the attorney for Martha Gundick asked that he be made a party defendant. Later, Mr. Hill, when on the stand as a witness, requested that he be permitted to intervene. A petition therefor was presented by his attorneys and an order for intervention made, whereupon he filed an answer and cross-bill. In the latter he charged that the assignment from Albert to plaintiff was procured by fraud and collusion, that under his quitclaim deed he was the owner of Albert’s interest, and asked for a decree accordingly.

The proofs were taken in open court and a decree granted dismissing Hill’s cross-bill and for partition as prayed by plaintiff. Both of the defendants appeal.

It is claimed that plaintiff had no such title to an undivided one-half interest in the premises as entitled her to bring partition. Our attention is called to the decisions of this court in which it has been held that plaintiff in a partition suit must have a good-title to the interest claimed by him and that contested legal titles cannot be litigated in such a proceeding. Hoffman v. Beard, 22 Mich. 59; Fenton v. Mackinac Circuit Judge, 76 Mich. 405; Warren v. Warren, 151 Mich. 95. An exception to the rule thus stated is noted in Hoffman v. Beard, supra:

“If the title be an equitable one, or partly equitable and partly legal (Overton v. Woolfolk, 6 Dana, 371), the court of equity may very properly try the titles, and so probably when the title is of a purely legal character, but some obstacle exists to a fair and perfect trial at law.”

Irrespective of whether the facts in this case bring it within the exception, we are of the opinion that this question cannot now be raised by either of the defendants. Martha Gundick makes no claim to other than an undivided one-half interest and is in no way interested in the dispute between plaintiff and Hill.- The plaintiff, by virtue of her deed from Eastman and the assignment from Albert of his interest in the land contract, is the owner of the other one-half, unless her right thereto bé affected by the quitclaim deed from Albert to Hill. The only interest Hill could have was the right to be permitted to pay up the amount due by Albert under the contract and thus secure from plaintiff a deed to a one-half interest. He owned no title to any part of this land which could be made the subject of a suit at law. After he secured his quitclaim deed, he might have taken proceedings in equity to have his rights thereunder determined, but did not do so. He asked leave and was permitted to intervene under section 11 of chapter 12 of the judicature act (3 Comp. Laws 1915, § 12362) which provides:

“In an action either at law, or in equity, any one claiming an interest in the litigation may, at any time, be permitted to assert his right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding.”

- Having submitted himself and his interest in this property to the jurisdiction of the court by his intervention, which is declared by the statute to be “in subordination to, and in recognition of, the propriety of the main proceeding,” in which partition was the only relief sought, we do not think he could thereafter question, the right of the court to determine his interest and, when it was determined that he had none, to grant the decree for partition as between plaintiff and Martha Gundick.

Was the assignment from Albert Gundick to plaintiff a valid transfer of his interest in the land contract from Eastman? If so, as it antedates the quitclaim deed from Albert to Hill, the latter secured nothing by such deed. It will serve no useful purpose to review or quote from the testimony bearing on the claim that this assignment was procured by fraud or through collusion with Albert’s attorney. The trial judge heard the witnesses and concluded that no such fraud or collusion was established. While the consideration paid him was less than his interest was worth at the time of the hearing, the trial judge found this was due to the large increase in values of real estate in certain sections of the city of Detroit. After a careful perusal of the record, we find no reason to disturb the conclusion reached by him. .

It is claimed that the conveyance from Eastman to plaintiff “was nothing more than an assignment of the vendor’s rights in the property.” The legal title was in Eastman, and this was'conveyed to plaintiff, subject only to the rights of Albert and Martha under the land contract. As such rights had been severed by the divorce decree and the right of Albert to an undivided one-half interest had been assigned to plaintiff, the deed from Eastman conveyed an undivided one-half interest to plaintiff released from the provisions of the land contract and the other undivided one-half, subject to the right of Martha to secure a deed to the other one-half, a right which she afterwards exercised. The right of plaintiff under the assignment from Albert clearly became merged in her superior right under the warranty deed from Eastman. It cannot well be claimed that, had plaintiff secured from both Albert and Martha an assignment of their interests under the land contract to her, she would not then have had the absolute ownership of the premises as though the land contract had never been given.

The decree makes no specific provision as to the rent to be chargeable to defendant. It does, however, provide that the premises shall be divided equally “as near as may be, taking into due consideration any rental that may be due from the said Martha Gundick to the said Lettie Nott from May 22, 1919, to the date of partition.” (May 22,1919, was the date of the assignment from Albert Gundick to plaintiff.) The general rule is thus stated in 38 Cyc. at page 63:

“In the absence of statute or agreement to the contrary, a tenant in common, while merely in possession of the common property, not excluding his cotenants, nor denying them equal enjoyment, cannot be charged with rent for use and occupation. * * * If the nature of the property be such as not to admit of its use and occupation by more than one, and it is occupied by one of the tenants in common only; or if, although capable of occupation by more than one, it is yet so used and occupied as in effect to exclude the others, he so occupying will be held accountable to the others for the rents and profits.”

This is, in effect, the rule laid down by this court in Hunt v. Hunt, 109 Mich. 399, and followed in Fenton v. Miller, 116 Mich. 45 (72 Am. St. Rep. 502). See, also, Schultz v. Dennison, 159 Mich. 259 (25 L. R. A. [N. S.] 1249), wherein it is said:

“It is competent in partition proceedings to adjust the equities of the parties in the decree.”

We think the provision of the decree relative to rents was fully justified by the proofs.

We have given consideration to the other questions discussed by counsel. In our opinion, they are in no way controlling. The decree is affirmed, with costs to plaintiff against both defendants.

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


source: Caselaw Access Project

author: Sharpe, J.

license: Public Domain

text:
    DETROIT UNITED RAILWAY v. WAYNE CIRCUIT JUDGE.
    1. Mandamus — When Lies.
    Mandamus will not lie when there is a remedy by appeal or writ of error; a showing that appeal is not available must be made to make out a right to mandamus.
    2. Same — Will Not Issue to Compel Injunction When Appeal Available.
    Where a cause had been submitted to the court on bill, answer, and proofs taken, and its decision had been rendered thereon, which needed but the signing of a decree dismissing the bill to effectuate a final disposition of the case, from which an appeal could have been taken in the regular way, hut instead of signing a decree an order denying an injunction was made without notice to defendants’ counsel, an order to show cause why said injunction should not issue, granted by this court, will he dismissed on motion of defendants’ counsel, as having been improvidently granted.
    3. Same — Rights of City of Detroit — Misconception of Law.
    The questions in the original proceeding involving the right of' the city of Detroit to construct a street railway and to bond for the payment of same, being of grave interest to the people of said city, should he reviewed in this court in the orderly way of appeal rather than by mandamus, and since it appears that the action of the court below in entering said order was based on a misconception of the law mandamus will he denied.
    Mandamus by the Detroit United Railway to compel Henry A. Mandell, circuit judge of Wayne county, to grant a writ of injunction.
    Submitted October 20, 1920.
    (Calendar No. 29,425.)
    Writ denied December 21, 1920.

      Stevenson, Carpenter & Butzel (Donnelly, Hally, Lyster & Munro and H. E. Spalding, of counsel), for plaintiff.

      Clarence E. Wilcox, Corporation Counsel, for defendant.
   Sharpe, J.

Plaintiff asks for a writ of mandamus to compel defendant to grant a writ of injunction in a suit pending before him in which the plaintiff is plaintiff and the city of Detroit, several of its commissioners and officers, and a number of contractors are defendants. The suit involves the right of the city to contract a street railroad and to sell its bonds to raise the money for payment of same. It also seeks to enjoin the board of sinking fund commissioners from using its funds in the purchase of such bonds. The bill of complaint was filed on August 11, 1920. While the motion for a temporary injunction is not in the record,, it appears that one was made and the taking of testimony in support thereof was begun on August 20th. After considerable testimony had been taken, an adjournment was had until September 1st, when the answer of the city and its officers and commissioners was filed and the case proceeded to a hearing as for a final decree. It was argued on September 3d, at the conclusion of which the defendant delivered an oral opinion denying plaintiff relief. The opinion concluded:

“Let a decree be entered dismissing the bill. If the decree is entered at once, this case can be heard in the October term of the Supreme Court.”

Defendants noticed the decree for settlement on September 20th. The signing was postponed at plaintiff’s request for 30 days, — ■

"pending an effort to be made by plaintiff to ascertain whether upon an application to the Supreme Court for a writ of mandamus to compel respondent to grant an injunction as prayed for in plaintiff’s bill of complaint, the questions involved in this cause might be reviewed at the October term of the Supreme Court.”

Subsequently, and on October 6th, plaintiff’s counsel submitted to defendant, without notice to defendants’ counsel, an order denying the motion for an injunction, and the same was signed by him. This order was dated September 3d, the day the hearing was concluded. The following appears in the order:

“This order denying plaintiff’s motion for an injunction is not based upon discretionary grounds, but solely upon legal grounds, viz., that the plaintiff did not by the allegations of its bill of complaint and evidence in support thereof, make a case for equitable relief."

On October 15th defendants’ counsel moved to set aside or strike this order from the files for the reason that no notice had been given to him of the submission thereof to the court, and for the further reason tnat the motion for an injunction had been abandoned by plaintiff and the cause heard upon bill, answer and proofs taken for the purpose of a final decree. This motion was denied on October 16th.

In the meantime, and on October 12th, plaintiff filed its petition in this court. An order to show cause was granted, returnable on October 20th. The return of the defendant is now before us.

We are met at the outset by a motion of defendants’ counsel to dismiss the petition. He insists that the order denying the injunction should not have been made without notice to him or at all after the cause had been submitted to the court on bill, answer and proofs taken and its decision rendered thereon, but that a decree should have been made and an appeal taken therefrom in the regular way. It seems to be conceded that, had a decree been signed by September 14th and notice of appeal then filed and served, it could have been got on for hearing at the October term of this court. As the decree would have been simply a dismissal of the bill, we are impressed that this course could easily have been pursued.

We feel constrained to dismiss the order to show cause as having been improvidently granted. The order denying the injunction should not have been made after the cause was tried and submitted and a decision rendered by the court which needed but the signing of a decree dismissing the bill to effectuate a final disposition of the case. Should we now proceed to consider and dispose of the questions raised on this petition, all causes in equity in which the gist of the relief sought is an injunction might be brought before us in a mandamus proceeding to compel the issuance of the writ.

The purpose of a writ of mandamus and the uses to which it may be put to review proceedings in the circuit court have been many times expressed by this court. In Michigan Mutual Fire Ins. Co. v. Wayne Circuit Judge, 112 Mich. 270, the rule applicable to the issuance of such a writ is thus stated:

“It is a general rule that the writ will not lie where the law has provided another remedy. It is said a writ of mandamus issues because there is no other adequate remedy, and justice and good government require a redress of the wrong. A court will not be required by this writ to take any action when another remedy is provided. It will not take the place of an appeal or writ of error. Merrill, Mand. §§ 201, 20.9. To this rule an exception is made if the slowness of ordinary legal forms is likely to produce such immediate injury or mischief as ought to be prevented.” (Citing authorities.)

In 13 Enc. Pl. & Prac. p. 530, it is said:

“Mandamus will not lie when there is. a remedy by appeal or writ of error; that is, it will not take the place of an appeal or writ of error, and is not the proper remedy to be resorted to to compel an inferior court or judicial tribunal to reverse a decision already made; and the writ does not lie to revise judicial action. The relator must show that he cannot appeal, to make out a right to a mandamus.”

In Chesebro v. Kent Circuit Judge, 70 Mich. 650, the court said:

“This court will not enter upon an investigation of the merits of the issue involved in the chancery case upon this motion (for writ of mandamus). Before those can be considered in this court, they must be brought before us in the regular way, after final decree made.”

There are many cases in which a writ of mandamus has been issued to compel the dissolution of an injunction granted without jurisdiction where it appeared that the question was one of law merely. Ionia, etc., Ins. Co. v. Ionia, Circuit Judge, 100 Mich. 606 (32 L. R. A. 481); Board of Sup’rs of Wayne Co. v. Wayne Circuit Judges, 106 Mich. 166; Thomas v. Kent Circuit Judge, 116 Mich. 106; Bogert v. Jackson Circuit Judge, 118 Mich. 457; Central Bitulithic Paving Co. v. Manistee Circuit Judge, 132 Mich. 126; Titus v. Chippewa Circuit Judge, 168 Mich. 507.

The only cases we have been able to find in which the writ was issued to compel the granting of an injunction are Dodge v. Van Buren Circuit Judge, 118 Mich. 189, and Ideal Manfg. Co. v. Wayne Circuit Judge, 139 Mich. 92. In the former, it appeared from the petition and return that the defendant “substituted his judgment of what the law ought to be for the law itself, as determined by the repeated rulings of this court,” and in the latter it appeared that plaintiff’s property was in serious danger of destruction and its employees threatened with personal violence, and that defendant’s refusal was not based on any legal grounds.

In Baltic Mining Co. v. Houghton Circuit Judge, 177 Mich. 632, this court issued a writ of mandamus to compel the circuit judge to vacate an order made by him dissolving a temporary injunction, theretofore issued, by which certain acts of violence and intimidation incident to a labor strike had been restrained. This action may, in effect, be said to have been the' same as directing the issuance of such writ. In the opinion filed, many decisions of this court are cited in support of the power and duty of courts of equity to restrain—

“conspiring labor organizations and their members, as well as others in the conspiracy, from molesting by violence, threats and intimidation, or any other unlawful interference with, those engaged in any law-, ful employment and those employing them.”

The action of- this court was based, as in Ideal Manfg. Co. v. Wayne Circuit Judge, supra, on the failure of the circuit judge—

“to exercise the discretion which the law required of him under the circumstances” — :

and an apparent misconception by him of the law which should govern his action in determining the right of the plaintiff to such writ.

The questions involved are of grave interest to the city of Detroit and its people and should only be reviewed in this court in the orderly way of appeal as provided for by our statutes and rules of court.

The petition is dismissed, with costs against the plaintiff.

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


text:
    BIGNELL v. FRANKS.
    1. Vendor and Purchaser — Land Contracts — Breach — Foreclosure — Parol Evidence — Prior Contract.
    In proceedings to foreclose a land contract, parol evidence of a written contract, signed by tbe parties, pursuant to the terms of which the land contract in question was entered Into, but which had been lost, held, admissible, since its effect was not to modify or change the provisions of the land contract.
    2. Same — Evidence—Sufficiency.
    Evidence, held, sufficient to justify the finding of the trial court that such prior contract was entered into, and that its contents were Vas claimed hy defendant.
    3. Same — Amount Due — Accounting.
    Where the amount owing by defendant was in dispute, both parties appealing from the decree of the court below, and under the proofs submitted an accurate accounting cannot be had, the record will be remanded to the court below for the taking of an accounting, to be followed by decree in accordance therewith and with the provisions of this opinion.
    Appeal from Ottawa; Cross (Orien. S.), J.
    Submitted October 8, 1920.-
    (Docket No. 64.)
    Decided December 21, 1920.
    Rehearing denied February 3, 1921.
    Bill by James Bignell against James A. Franks and another for the foreclosure of a land contract. From the decree rendered, all parties appeal.
    Reversed and remanded.

      Charles E. Soule and Charles E. Misner, for plaintiff.

      Lillie, Lillie & Lillie, for defendant Franks.
   Sharpe, J.

The bill of complaint prays foreclosure of a land contract executed by plaintiff to defendant Franks, dated April 10, 1907, for the sale of certain land in the city of Grand Haven for the sum of $2,800. Payments were to be made as follows;

“$100 per year for three years, and, if he puts up an additional hot house on the land costing not less than $250, it shall include the first year’s payment of $100, and after three years the payments shall be not less than $250 per year, with six per cent, interest to be paid semi-annually on $2,500 from this date, and on the $300 balance to be paid within three years, there is to be no interest, if paid when due, otherwise six per cent, interest from this date.”

The bill further alleged that Franks had contracted to sell a part of said land to Martin Van Doom, Jr., who is also made a defendant. Plaintiff claims default in payment, and asks for an accounting as to the amount due and an order for sale if the same be not paid by the defendants.

The defendants answered, admitting the facts above stated except as to the default. They set up facts by way of cross-bill, which on the hearing they were allowed to amend. The claim of the defendant Franks, supported by his own testimony, may be thus summarized: He had purchased the premises described in the contract and other lands under a land contract from a Mrs. Coburn. Being unable to meet his payments, there being $6,473.63 then due, he had certain negotiations with the plaintiff which resulted in plaintiff’s advancing this money; that, his vendor conveyed to him and he and his wife by warranty deed to plaintiff ; that prior to the execution of such deed there was an agreement between him and plaintiff, afterwards reduced to writing by plaintiff, whereby plaintiff agreed that he would take a certain part of the land on which stood a' residence at an agreed price of $2,500, that Franks should take a part on which stood a greenhouse for $2,800, and that the remainder should be sold by the parties and any balance, after satisfying the claim of plaintiff for the money advanced by him and interest thereon and expenses and a 10 per cent, commission, should be credited to Franks on the purchase price of his property; that this agreement, after being signed, was taken by plaintiff to have it typewritten, and defendant never saw it again.

The rights of the parties depend upon whether such a written agreement was made. The evidence tends to show that it was written by plaintiff on the same day the land contract was prepared by his attorney, and that such contract was executed by him pursuant to this agreement.

It is plaintiff’s claim that all evidence submitted to establish this agreement was inadmissible as tending to vary the land contract executed by plaintiff to defendant. With this contention we cannot agree. The effect of the evidence received was not to modify or change the provisions of the land contract. The purpose was to show that another written contract was entered into between plaintiff and Franks, and that the land contract was executed pursuant thereto. Evidence to establish such a contract was clearly admissible after its loss had been accounted for. The trial judge found that there was such an agreement, and after a careful reading of the record we are impressed that such finding was justified by the proofs. The plaintiff admits that a writing in pencil was prepared by him. He testified, in answer to questions by his own counsel:

“Q. You heard Mr. Franks’ testimony in regard to a contract that you and he had made before the contract was made in this suit?
“A. Yes, sir.
“Q. Was such a contract made, any such contract, was a contract made?
“A. There was.
“Q. Did you make any other contract than that and the contract in this suit?
“A. No, sir.
“Q. What was done with that contract and when did you see it last?
“A. I think the last time I saw it was on your desk. * * * So just before we made this one contract between I and Mr. Franks, I think then I wrote the contract off, and I .don’t know but what I took the two of them.”

Plaintiff’s attorney, who prepared the land contract, testified:

“I think Mr. Bignell had a contract that he had in pencil that he had made and I am not clear whether it was signed by both of them; that I put on my desk and from that I drew the contract being foreclosed in this suit.”

He denied, however, that its contents were as claimed by Franks. During the examination of defendant Franks a demand was made on plaintiff, and also on his attorney, to produce this writing. Plaintiff answered, “I have never seen one,” and his attorney said, “I have never seen it or heard of it before.” We believe the testimony sufficiently accounted for its loss to permit parol evidence to be received as to its contents. Had this writing been produced and its contents shown to be as claimed by Franks, we are of the opinion that it would have been admissible, and, if so, evidence tending to establish it was properly received.

In support of the claim of Mr. Franks that the provisions of the pencil writing were as testified to by him, he produced the following letter, written to him by plaintiff:

“Grand Haven, Mich.,'
“March 16, 1907.
“Mr. Franks,
“City.
“Dea/r Sir:
“I will stop Monday morning.
“If I buy the whole thing, what would be the most you could afford to take the hot houses and twelve lots for or would you be willing to rent for one or two years and about what can you afford to pay? Would you be willing to allow me 10 per cent, net on all money invested? You take the greenhouses and ten and one-fourth lots at $3,000. I will take the house and 6 lots at $2,000. You have all the net profit that is made to apply on contract.
“Resp.,
“James Bignell.”

The deed from Franks to plaintiff was dated March 9, 1907, and recorded on April 6, 1907. The date of its acknowledgment does not appear in the record. Plaintiff admits that “Mr. Franks did get purchasers for some of the lots.” It also appears that on or about April 10, 1910, plaintiff, at Franks’ request, furnished him with a statement in which he charged himself with the $2,700 Franks was to pay for his land and the $2,500 he was to allow for the residence and lots he kept and the sums received from the sale of lots to other persons. He credited himself with the moneys paid on the purchase, $6,473.63, interest thereon, taxes paid, expenses of various kinds, and a commission of $1,000. The balance struck thereon showed $249 then due him. Without further reviewing the evidence, we believe it fully justified the finding of the trial judge that such an agreement in writing was written in pencil by plaintiff and signed by the parties, and that its contents were as claimed by Franks. We have not overlooked the claim of the plaintiff that “written contracts cannot be set aside by parol,” nor the many cases cited by his counsel in support thereof. We again emphasize the fact that the contract which defendant Franks sought to establish, and, as the trial court found and we find, did establish by parol evidence, did not vary or modify the land contract. It expressed the agreement of the parties, pursuant to which the land contract was executed.

The trial judge found that there was $100 due on the land contract and ordered payment thereof by defendants within 30 days. Both parties appeal. The defendants claim that the proofs show that plaintiff has been overpaid and that defendant Franks should have a decree against plaintiff for the amount of such overpayment. Plaintiffs attorneys say there is no way in which the amount found due can be arrived at under the proofs submitted. Counsel for the defendants should have submitted to the court a computation of the amount due as claimed by them. This, apparently, was not done. We have examined Jthe evidence with much care and feel constrained to remand the record to the trial court in order that a more complete accounting may be had and a balance struck in such a way that it may be reviewed in this court if necessary. To that end additional proofs may be submitted by either party. The plaintiff should be credited with the purchase price paid by him and interest thereon, the expenses necessarily incurred in the care and sale of the property, and a 10 per cent, commission on the sums received therefor, excluding that received from Franks, and the value of the lots retained by him. He should not be restricted to the items of his statement of April 10,1910, if in the opinion of the trial court other sums should be included therein. The credit for sidewalk, if it be that provided for in the land contract, should be disallowed. He should be charged with the $2,500 agreed on as the value of the residence and lots retained by him and all sums received on the sale of lots other than those contracted to Franks. He should also be charged with the payments made by Franks on his contract, the purchase price to be $2,700. Interest on all sums disbursed and received by him should be computed and allowed.

The decree entered will be vacated and the record remanded for the taking of such an accounting, to be followed by a decree of the trial court in accordance with this, opinion and his finding thereon. The costs bn this appeal will abide the result of such accounting. Should it result as favorable to defendant as the decree made, he will recover costs; should the amount due plaintiff be increased, the costs of this appeal will be taxed in his favor.

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

Moore, C. J„ took no part in this decision.


text:
    THOMAS CANNING CO. v. JOHNSON.
    1. Stipulations — Binding Upon Parties.
    A stipulation is equivalent to a finding of facts by the court or the special verdict of a jury in its binding force, upon the parties thereto.
    2. Same — Evidence — Proof of Omitted Pact — Admissibility— Discretion of Court.
    Where It appeared on the argument that the plaintiff had omitted to include in the stipulation a fact upon which its right of recovery depended, and which in no way tended to modify or change any fact so agreed upon, held, within the discretion of the trial judge to permit proof of such fact to be received.
    3. Contracts — Construction,
    A contract in writing, whereby defendant sold to plaintiff a quantity of- tomato pulp in tin containers, agreeing to store same free of charge until ordered shipped by plaintiff, which was to be within a certain fixed date, and also agreeing to repurchase the empty tins if returned to him “in as good condition as when received by buyer,” construed, and held, to mean that the tins were to be returned to defendant in the condition they were in when they actually came into possession of plaintiff.
    4. Same-Risks Assumed — Storage.
    The rusting of the tins while in storage in possession of defendant awaiting shipment to plaintiff, held, under the contract, a risk assumed by defendant.
    5. Same — Passing of Title Immaterial.
    Since the right of plaintiff to return the tins to defendant at the contract price depended upon the condition they were in when received by plaintiff, the question as to when title to the pulp passed, held, immaterial.
    6. Same — Delivery—Tender—Refusal to Accept — Effect.
    Defendant’s contention, that plaintiff cannot recover the price of the tins because of its failure to offer to return same, cannot be sustained, where it appears that defendant notified plaintiff that on account of the rusty condition of the tins he could not accept them, and did refuse to accept a car load which plaintiff shipped; plaintiff not being required to incur needless freight expense, or to assume that defendant might change his mind.
    7. Same — Finding of Fact-t-Evidence — Sufficiency.
    The finding of the trial judge that the tins, when emptied and ready for shipment to defendant, were in the same condition, so far as rust was concerned, as when received by plaintiff, held, supported by the proofs.
    Error to Kent; Brown (William B.), J.
    Submitted October 15, 1920.
    (Docket No. 2.)
    Decided December 21, 1920.
    Assumpsit by the Thomas Canning Company against Grafton Johnson for breach of a contract. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Norris, McPherson, Harrington & Waer {Ivory J. Drybread, of counsel), for appellant.

      Colin P. Campbell, for appellee.
   Sharpe, J.

On January 12, 1915, the plaintiff, a corporation doing business at Grand Rapids, and defendant, a resident of Greenwood, Indiana, entered into a contract in writing whereby the defendant sold to plaintiff “Twelve thousand dozen No. 10 Tomato Pulp at the Fame Canning Company’s plant, at Tipton, Ind., at $1.75 per dozen, F. O. B. cars, Tipton, Ind.” The other provisions of the .contract material to the issue here presented are as follows:

“Shipments: To be made as ordered. All of the goods to be shipped by Dec. 1st, 1915. * * *
“Storage: Seller agrees to store pulp free of charge until ordered shipped by the buyer.
“Insurance: "Seller is to insure pulp at his expense, until May 1st, 1915, when the buyer shall insure what portion still remains unshipped.
“Guarantee: Seller guarantees pulp against leaks and swells, until the pulp is received. It is agreed that any swelled cans shall not be considered a part of this contract.
“Containers: Seller agrees to repurchase from buyer, all empty tins, at 4c each, F. O. B. Grand Rapids, to be shipped in car load lots at buyer’s option, at any time that a sufficient quantity of the tins are empty to make a car load. Tins guaranteed to be in as good condition as when received by buyer.”

At the opening of the trial a stipulation of facts was entered into between counsel for the respective parties, the material parts of which are summarized and quoted from as follows:

Immediately after the execution of the contract, the cans sold were separated from other pulp owned by defendant and placed by themselves in a comer of the Fame Canning Company’s warehouse at Tipton. The containers were at that time free from rust and suitable for re-use. The defendant thereupon issued a warehouse receipt to plaintiff, which recited that the Fame Canning Company held such stock in storage as the property of plaintiff, “insurance at buyer’s risk after May 1, 1915,” which receipt was received and accepted by plaintiff. On May 1, 1915, plaintiff took out insurance in its favor and as owner of the pulp. Plaintiff’s president had visited the Fame Canning Company’s plant and inspected the warehouse in which it was understood the pulp was to be stored, and in which it was stored, and was familiar with the conditions surrounding such storage. It was built of brick, was in a good state of repair, and “was sufficient to and did fully protect said cans from the outside elements.” The defendant “exercised ordinary and usual care in the storage and protection of said pulp and the containers thereof.” Both parties knew that such containers could be used again for canning pulp if “bright and free from rust when emptied and were properly sealed, emptied, washed and dried, and otherwise properly cared for after emptying so as to prevent rusting,” and that they were of the value of 4 cents each for such purpose, but that if not in such condition they “could not be used again for such purposes or for any purpose whatever and were of no value.” The containers were in good condition when the contract was entered into.

“During the period from May 1st to October 1st, the defendant repeatedly requested plaintiff to remove said pulp from the warehouse, but no part of it was removed until the latter part of October, and the greater part of it not until the latter part of November, 1915.
“During the months of August and September, 1915, throughout the State of Indiana there was an unusual amount of rainfall and excessive moisture in the atmosphere, which fact was known to the plaintiff at the time.
_ “It was also a fact known to the plaintiff at the time, that under such weather conditions canned goods of the kind sold by defendant to plaintiff, stored in the ordinary factory warehouses without facilities for artificial drying, as said goods were stored, and as it was contemplated by the parties at the time of the contract that they should be stored, will condense a great amount of moisture from the air upon the cans, which causes the cans to rust if such weather conditions continue for any considerable length of time.”

Early in October, 1915, the defendant caused the pulp to be inspected and discovered that the containers were rusting because of said weather conditions, and on the 13th of that month notified plaintiff of that fact by the following letter:

“October 13, 1915.
“Thomas Canning Co.,
“Grand Rapids, Mich.
“Gentlemen: The writer just returned from a visit. to the Tipton factory. It strikes me that you should arrange to move your lot of No. 10 tins of pulp at the earliest possible moment. This stock is more or less rusty and getting worse all the time, stacked as it is in the warehouse — tins close together where the rust spreads easily.
“What you should do is to take it up to your place and what you are not going to use of it, either clean up or spread it out to a greater extent on the floor where the rust will Hot continue to spread as rapidly as it is at the present time.
“Now this is for your own good and you really. ought to take some action at.a very early date or you are going to meet with considerable loss.
“Very truly yours,
“Grafton Johnson.”
To this letter the plaintiff replied as follows: ■
“October 15th, 1915.
“Grafton Johnson,
“Greenwood, Ind.
“Dear Sir: We are in receipt of your favor of the 13th and note the results of your visit to the Tipton factory, and the inspection of the number ten tins of pulp.
“We would certainly recommend that you give these the proper care so they will not rust. We should think that this would be to your own interest, in view of the fact that we undoubtedly wish to return the cans as per our contract with you. We would certainly recommend that you sort this.pile over and any cans that look to you to be rusty and would be liable not to keep long, that you ship us in the car which we have just ordered from you.
“Very truly yours,
“Thomas Canning Company, “W. S. Thomas.”

Further correspondence followed, the defendant insisting that delivery under the contract had been made and that the risk of the cans rusting was on plaintiff, while plaintiff contended that until the cans were received by it the loss on account thereof must be borne by defendant. Extracts from these letters will be hereafter referred to.

“Following the -letter of October 13th from the defendant to the plaintiff, above set out, the plaintiff did nothing in the way of cariiig for said property or to prevent further rusting of said cans except to take out one car load, but allowed all of the remainder of said pulp to remain in said warehouse as before, until the latter part of November, during which time the damage to said containers by reason of said rusting greatly increased, and affected and damaged a large number of said containers which were not damaged at the time said notice was given on October 13th.
“By- the first day of December, 1915, the plaintiff removed said entire lot of pulp from said warehouse and shipped the same to its plant at Grand Rapids. Plaintiff caused said cans to be opened, washed and sterilized as required by said contract.”

In December plaintiff shipped a car load (about 1,000 dozen) of the empty containers to defendant, who caused them to be inspected by competent persons, and all were found “rusty^and unfit for use again for any purpose, and were of no value whatever except as junk.” The defendant refused to accept them, and so notified plaintiff. No further shipment of cans was made or offered to be made.

“Plaintiff realized from the sale of the cans retained by it the sum of $282.30, and plaintiff claims that it is entitled, on the foregoing facts, to judgment against the defendant in- the sum of $5,760 less the amount thus realized, with interest at 5% from January 16, 1916.
“The plaintiff is indebted to the defendant in the sum of $710.47, with interest at six per cent, per annum from December 15,1915, being the balance due on one of. the $2,500 notes given pursuant to the contract in question.”

The case came on for trial before the circuit judge without a jury, and after the conclusion of the arguments of counsel on the facts as stated in the stipulation’“the court suggested that possibly the stipulated statement of facts lacked certain facts essential to plaintiffs recovery,” and later such testimony .was offered. To this, defendant objected “on the ground that the stipulated facts heretofore entered into embody all the facts in the case, and make it incompetent for the plaintiff to present any further testimony.” The court permitted plaintiff to put in testimony to show that after the cans had been emptied by plaintiff and were ready for shipment back they were in the same condition as when received by plaintiff. The defendant’s attorney was given opportunity to offer any testimony he desired at the conclusion of that put in by plaintiff, but announced that he had none to offer. The plaintiff recovered a judgment for $5,651.14.

Was such testimony admissible? We agree with counsel for defendant that the stipulation is equivalent to a finding of facts by the court or the special verdict of a jury in its binding force upon the parties thereto. Goodrich v. City of Detroit, 12 Mich. 279; Gillett v. Board of Trade, 46 Mich. 309; Cofrode v. Wayne Circuit Judge, 79 Mich. 332 (7 L. R. A. 511). But when it appeared on the argument that the plaintiff had omitted to include therein a fact upon which its right of recovery depended and which in no way tended to modify or change any fact so agreed upon between the parties, we believe it was well within the discretion of the trial judge to permit proof of such fact to be received. We can see no distinction in principle between the granting of such a request in this case and in one where, after the proofs are closed, the case is reopened to permit an omitted fact to be established. That the trial court has such discretion has been many times held by this court. Thompson v. Ellsworth, 39 Mich. 719; Gray v. Willcox, 56 Mich. 58; Minkley v. Township of Springwells, 113 Mich. 347.

Construction of the contract. Exception was taken to the following finding of the trial judge:

"I find and conclude, as a matter of law, that the word 'received’ in the contract between the parties of January 12,1915, meant the time when the goods were received at the factory or the warehouse of the plaintiff in Grand Rapids, Michigan.”

Defendant’s counsel insist that the title to the pulp, including the containers, "passed to the plaintiff at the time the contract was made, or at least at the time of the issuance and acceptance of the warehouse receipt,” and cite • many authorities to support such claim. In our opinion the rights of the parties are in no way dependent upon when the title to the pulp or the containers passed to' the plaintiff. Ownership of property may be in one person and possession of it in another. In the contract the defendant agreed to repurchase the empty tins if returned to him "in as good condition as when received by buyer.” When were*these cans received by the plaintiff? While the meaning of the word “received” in such contracts is ordinarily understood to be "delivered into the possession of,” we are of the opinion that the entire contract must be scrutinized to ascertain what the parties hereto intended it to mean. The defendant agreed to store the product sold free of charge until ordered shipped by the plaintiff, subject to the limitation that it should all be shipped by December 1, 1915. This undertaking on his part must be considered as a part of the consideration moving to plaintiff in the making of the contract. The containers were thus to be left in defendant’s possession and under his care and control uhder his agreement to store them until shipment was ordered by plaintiff. It may well be inferred that no thought of damage by rust owing to weather conditions entered the mind of either at the time the contract was made. We are impressed that the duty rested on the defendant to see to it that they were so stored and cared for pending shipment as to reach the plaintiff in a condition that if cleaned, dried and sealed by it in the manner set forth in the stipulation they would be repurchased by defendant at the price agreed upon. Our attention is called by plaintiff’s attorney to the fact that the product was guaranteed “against leaks and swells, until the pulp is received.” The word “received” here clearly means delivered by the defendant to plaintiff from the storage in which he had placed the cans. This but confirms the conclusion reached that the rusting of the containers was a risk assumed by the defendant until the cans were in the actual possession of the plaintiff.

It is insisted by defendant that the failure of the plaintiff to offer to return the tins to defendant bars its right of recovery. On October 14th defendant had written plaintiff that—

“On account of the tins being in this rusty condition at this time we wish to go on record in advising you that we cannot accept the return of these tins as was contemplated when the purchase was made,”—

and on October 20th defendant again writes—

“Although we have taken the best possible care of them, they have rusted very seriously, as we have heretofore written you, and consequently are not in a merchantable condition.”

The tins were at that time in the warehouse at Tip-ton and presumably had been inspected by the defendant. Notwithstanding this positive notice that defendant would not accept a return of the containers, plaintiff shipped him a car load when emptied, all of which were rejected “for the reason that the cans returned do not comply with our contract to. repurchase same,” and the plaintiff was asked to “give the railroad company instructions regarding the disposition of same.” Under our construction of the contract, it was the duty of the defendant to have accepted the tins shipped. He did not -do so, but left the burden on plaintiff to pay the freight on them .and dispose of them as best it could. We'think such refusal, when considered in connection with the letters above quoted from, advising plaintiff that defendant would not accept a return of the tins, absolved plaintiff from making further shipments.. It was not required to incur expense and render itself liable for freight in attempting further performance, nor was it under obligation to assume that defendant might probably change his mind about it.

In Roehm v. Horst, 178 U. S. 1 (20 Sup. Ct. 780), in which the facts were somewhat similar, the English and American decisions are reviewed at length and the rule announced as above stated. The following language of Mr. Justice Brewer in Anvil Mining Co. v. Humble, 153 U. S. 540 (14 Sup. Ct. 876), is quoted with approval:

“Whenever one party thereto is guilty of such a breach as is here attributed to the defendant, the other party is at liberty to treat the contract as broken and desist from any further effort on his part to perform; in other words, he may abandon it, and recover as damages the profits which he would have received through full performance. Such an abandonment is not technically a rescission of the contract, but is merely an acceptance of the situation which the wrongdoing of the other party has brought about.”

In Wigent v. Marrs, 130 Mich. 609, a similar question was presented to this court. The syllabus reads:

“A party to an executory contract may always stop performance by the other party by an explicit direction, but renders himself liable for such damages as the other has sustained by reason of having the performance stopped.”

It contains the following quotation from 2 Mechem on Sales; § 1091:.

“The law is well settled that a party to an executorycontract may always stop performance on the other side by an explicit direction to that effect, though he thereby subjects himself to the payment of such damages as will compensate the other for the loss he has sustained by reason of having his performance checked at that stage in its progress.”
“The contract is not rescinded, but broken; and, while the other party has the right to deem it in force for the purpose of the recovery of his damages, he is under no obligations, for that purpose, to tender complete performance, nor has he the right to unnecessarily enhance the damages by proceeding after the countermand, to finish his undertaking.” Id. § 1092.

Was the finding that the cans when emptied and ready for shipment to defendant were in the same condition as when received by plaintiff supported by the proofs? Adrian E. Heyboer, an employee of plaintiff, testified that he saw all of the cans after they were emptied and that they were in the same condition so far as rust was concerned as when received by plaintiff.

What has been said disposes of the questions raised and discussed by defendant’s counsel in their brief. We have, however, examined the other errors assigned and find them without merit.

The judgment is affirmed.

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


text:
    QUISLE v. BREZNER.
    1. Contracts — Construction—Ambiguity—Parol Testimony.
    Where an agreement is reduced to writing, and there is no uncertainty as to the extent of the obligation assumed by each, all parol agreements or understandings are merged in it, and extrinsic evidence is not admissible to explain its meaning or determine the construction which shall be placed upon the writing.
    2. Same — General Expressions Restricted by Particular.
    In the construction of a contract in writing, it is a general Tule followed by courts that general expressions will be restricted by particular descriptions or additions following them, and where both the general and special expressions may be given reasonable effect, both must be retained.
    S. Same.
    A contract in writing whereby plaintiff agreed to "furnish all labor and material required for the mason work necessary for the erection and completion of brick building, including trick, sand, lime, partition tile, tile coping, setting cut stone, etc., which said building is being erected” for defendant, construed, and held,, that the purpose of the italicized words was to limit the obligation of plaintiff to the furnishing of the material therein particularly stated, and to include the furnishing of labor to be performed on the material not so furnished; and that, as so construed, said contract is not ambiguous.
    4. Same.
    Material included in the specifications, which were made a part of the contract, and which was in no way excepted in the contract as construed, held, chargeable to plaintiff.
    5. Same. •
    Where a change in the construction of a cornice resulted in a saving of ?100 to plaintiff, said amount should be deducted from the contract price.
    On the general rule that parol evidence not admissible to vary, add to, or alter a written instrument, see note in 17 L. R. A. 270.
    Appeal from Wayne; Mandell (Henry A.), J.
    Submitted October 13, 1920.
    (Docket No. 103.)
    Decided December 21, 1920.
    Bill by Oscar Quisle against Wolf Brezner and others to enforce a mechanics’ lien. Defendant Brezner filed a cross-bill for an accounting. From a decree for plaintiff, defendant Brezner appeals.
    Modified and affirmed.

      Ezra H. Frye, for plaintiff.

      Denby, Kennedy & O’Brien, for appellant.
   Sharpe, J.

The plaintiff and defendant Brezner entered into a. contract in writing on the 27th day of February, 1917, in which plaintiff agreed to “furnish all labor and material required for the mason work necessary for the erection and completion of brick building, including brick, sand, lime, partition tile, tile coping, setting cut stone, etc., which said building is being erected” for Brezner in the city of Detroit, “according to the plans, drawings, details and specifications made or to be made by Emil A. Drolet, architect,” for the sum of $6,146. The plaintiff, claiming a balance due him on the completion of the contract, filed the bill of complaint herein to enforce a lien he had theretofore filed against the building and the land on which it was erected. Mr. Brezner, who will, hereafter be called the defendant, claims that plaintiff was overpaid, and by way of cross-:bill seeks decree for the amount of such overpayment. The trial court found $1,742.73 (which included some interest) due plaintiff, and a decree was entered adjudging such amount to be a lien on the premises. The defendant Brezner appeals. The rights of the other parties who were made defendants are not involved in the appeal.

The principal question in dispute is as to what material and labor plaintiff was required to furnish under the agreement. The specifications, which were made a part of the contract, read in part as follows:

“The bidding shall be in a lump sum for each class of work as follows:
“Mason work:—
“All brick, tile, stone, concrete, iron and all work and materials usually furnished and done by the mason contractor.”

Tn separate paragraphs the particular work to be done is specifically described under the following headings : “Excavation,” “Footing Tiles,” “Crock Drains,” “Footings,” “Sidewalks,” “Brick Work,” “Brick,” “Brick Laying,” “Mortar,” “Flue Lining,” “Fire Wall,” “Basement,” “Stone Work,” “Iron Work,” “Foundation for Boilers.” Without such heading it is provided: “Mason to furnish ceramic floors in bathrooms and at front entrances and where called for,” and that “The furnishing of all structural work and iron work is included in this specification.”

The plaintiff was permitted, over the objection of the defendant, and for the reason that the contract was found to be ambiguous, to testify to the understanding had between himself and the defendant as to what materials he was to furnish and what work he was to do under the contract. It is his claim that he was not required to furnish the iron or the cut stone used in the building, or to put in the concrete floor in the basement, or to furnish the ceramic floors as provided for in the specifications. He insists that the language, “furnish all material required for the mason work,” in the contract is so modified by the words which follow ’‘including” as to make its interpretation uncertain; that it may be “understood in more senses than one” and therefore parol evidence was properly received to inform the court as to what the parties in fact agreed upon.

The law in this State is well settled that where an agreement is reduced to writing, and there is no uncertainty as to the extent of the obligation assumed by each, all parol agreements or understandings are merged in it, and extrinsic evidence is not admissible to explain its meaning or determine the ..construction which shall be placed on the writing. Grand Rapids Wood Finishing Co. v. Hatt, 152 Mich. 132; Wenzel v. Kieruj, 168 Mich. 92; Boston Piano & Music Co. v. Clothing Co., 199 Mich. 141. To permit the reception of parol evidence would defeat the very object sought to be accomplished by reducing the agreement to a •written form.

-Is this contract ambiguous? We must determine this question from a reading of the contract itself. We have no right to seek the aid afforded by the testimony of witnesses or to consider the practical construction the parties have placed upon it. If, aided by such rules of construction as have been announced and followed by courts, we are able to ascertain what the parties really intended by the words used in the contract, we must, in its interpretation, be governed thereby. One of such rules is that “general expressions will be restricted by particular descriptions or additions following them.” 13 C. J. pp. 537, 508, and cases cited. Where, however, both the general and special expressions may be given reasonable effect, both must be retained. The reasoning of the court in Fisher Electric Co. v. Bath Iron Works, 116 Mich. 293, and Wenzel v. Kieruj, supra, will be found instructive. Were it not for the insertion of the italicized words in this contract, no claim of ambiguity could be made. ' It provides in no uncertain terms that the - plaintiff shall furnish all the material and perform all the labor to complete the “mason work” on this building according to the specifications.

We must, however, assume that there was some purpose in inserting the italicized words. After careful consideration, we can discover no other possible purpose than to limit the obligation of plaintiff to the furnishing of the material therein particularly stated. Fairly construed, we think it obligates the plaintiff to perform all the labor included in the specifications and to furnish the brick, sand, lime, partition tile and tile coping. While it may be said that the use of the abbreviation “etc.,” is significant and indicates the inclusion of all other material provided for in the specification “mason work,” it follows the words, “setting cut stone,” which is the only reference therein to the performance of labor, and we think may fairly be said to thus include the labor to be performed on the material not so furnished. As thus construed, the contract is not ambiguous and the rights and liabilities of the parties must be determined as therein stated.

The plaintiff admits that he was properly chargeable with $4,912.67 for money paid him and for brick, sand, gravel, lime, cement and certain other items, paid for him by the defendant. This left a balance due him of $1,503.33, to which the trial court added $168.55 for extras. We think this allowance Justified by the proofs. But while concluding that defendant has no right to charge plaintiff with the amount paid by him for the iron work, cut stone and ceramic floors, we are of the opinion that the item of $380 for concrete floor and furnace foundations in the basement is properly chargeable to plaintiff, as such work is particularly included in the specification and in no way excepted in the contract as- we have construed it.

We are also impressed that the claim of defendant of $100 for reduction in cost by reason of a change in the cornice should be allowed. That such a change was made is admitted by plaintiff. The defendant swears positively that a saving thus resulted to plaintiff and that it was agreed that $100 should be deducted from the contract price on account thereof. The plaintiff does not deny that the change resulted in a saving to him of the amount claimed, and in reply to a question as to whether the matter was discussed between him and defendant answered, “I can’t remember.” We have examined the evidence bearing on the other items in dispute, which are not foreclosed by the construction we have given to the contract, and agree with the trial judge as to the disposition made of them by him.

From the $1,671.88 found due the plaintiff by the trial court will be deducted the sum of $480 herein allowed to defendant, leaving a balance due plaintiff of $1,191.88, to which should be added $109.90, interest at 5 per cent, from July 23, 1917, to the date of the decree, May 17, 1919, in all $1,301.78. The decree will be modified accordingly, and as thus modified affirmed. The defendant will recover costs of this court.

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


text:
    RANDALL v. DETROIT & MACKINAC RAILWAY CO.
    Cabbiees — Negligence—Damage by Fbost — Release ekom Liability — Effect.
    Where plaintiffs, potato buyers, accepted a box car in which to make a shipment of potatoes, because at that time a refrigerator car was unavailable, ana signed a release of defendant from liability for freezing, defendant could not be beld liable for damage by frost, in an action therefor, although plaintiffs alleged that said damage was caused by unusual delay in transportation and delivery, since said damage by frost was within the contemplation of the parties when the release was signed. Lardie v. Railroad Go-., 192 Mich. 77.

      On duty of carrier to carry perishable goods in refrigerator ears, see note in 10 L. R. A. (N. S.) 317.
    On duty of carrier to protect goods in transit from freezing, see note in 39 L. R. A. (N. S.) 645.

      Error to Bay; Houghton (Samuel G.), J.
    Submitted October 21, 1920.
    (Docket No. 87.)
    Decided December 21, 1920.
    Assumpsit by Charles L. Randall and others, co-partners as C. L. Randall & Company, against the Detroit & Mackinac Railway Company for damages to certain potatoes in transit. Judgment for plaintiffs. Defendant brings error.
    Reversed.

      Henry & Henry, for appellant.

      W- B, Henry, for appellees.
   Sharpe, J.

Plaintiffs, who are copartners, were engaged in buying and selling potatoes in the fall of 1917. They operated at more than 50 stations, 9 or 10 of which were on defendant’s railroad. Louis C. Freidrich was their buyer at Rogers City. The car involved in this suit was loaded and shipped on November 10, 1917. It contained 900 bushels. Defendant was unable at that time to furnish a refrigerator car, and an ordinary box car was used. A false floor of lumber was put in it and double thicknesses of heavy building paper were laid over the bottom and sides of the car. Mr. Freidrich, as agent for the shipper, P. B. Glaspie, signed an order bill of lading consigning the car to “C. L. Randall; notify, New York & New Jersey Produce Co., destination, Hoboken; route, Erie Despatch and H. & M. delivery.” Before signing, a release from freezing was stamped upon the face of the bill of lading, in red ink, reading as follows:

“For valuable considerations by me received and acknowledged, the Detroit & Mackinac Railway Co., is hereby relieved of liability for loss occasioned by heat or frost when shipment is transported in ordinary box cars, between points where no refrigerator or heated car service is operated.”

In addition to the above release, the shipper, by Mr. Freidrich, signed the following request for and acceptance of the box car, which was attached to the shipping order:

“In consideration of the acceptance of this shipment for transportation, and anticipating the possibility of damage because shipment is transported in an ordinary box car, the carrier is released from all liability for loss or damage from freezing, heating or other cause due to shipment being handled in an ordinary box car. Carrier has offered to furnish refrigerator service when possible, this shipment is made however in a box car at shipper’s especial request.”

The following notice, prepared by defendant, was posted in the waiting room of the defendant’s depot at Rogers City:

“Detroit & Mackinac Railway Co.
“Car Service Department.
“Circular No. 341
“All Agents:
“On and after November 1st, box cars will not be placed for potatoes, apples and vegetables, except under the conditions shown herein. Refrigerator cars will be furnished when available.
“Should shippers desire to accept and load box cars on and after November 1st, the shipper must assume responsibility for protection of the freight and release the carriers by signing the release, a copy of which is attached. When this release is signed it will be attached to your shipping orders and placed on file. Endorse on way bills. ‘Protective Service Assumed by Shipper.’
“Our rules require shippers to provide stoves and send man in charge of refrigerator cars loaded with potatoes, apples and vegetables after November 1st. If shippers do not wish to furnish this protective service, you will insist upon the shipper filling out the release on Form 389 before accepting the shipment, attach the release to the shipping order, and place on file.
“We will furnish additional copies of box car releases on application. You should have a supply of Form 389 on hand, or a supply can be obtained from the General Superintendent’s Office.
“(File T 12-3)
“C. A. Pinkerton,
“Superintendent of Car Service.
“East Tawas, Michigan.
“October 30, 1917.”

The car left Rogers City at 2:20 p. m. of the same day it was loaded. It arrived at the North Bay City yard, defendant’s southern terminal, on November 12th at 5 a. m., having traveled a distance of 155 miles. The car was turned over to the Pere Marquette railroad at 3 p. m. of the same day and forwarded according to the routing direction, reaching Weehawken, New Jersey, on November 19, 1917. A notice of the arrival of the car was sent by mail to Mr. Randall, the consignee, on November 22d, and one to the New York & New Jersey Produce Co. (the party to be notified) , on November 28th. A diversion order was received by the agent at Weehawken on December 4th and the car moved, pursuant thereto, two days later, to 28th street, New York City, where it' arrived on December 12th. Notice of arrival was given to the produce company on the day following. Unloading was begun on the 15th and completed on the 19th. Inspection on the 13th by one of plaintiffs revealed the fact that the potatoes were badly frozen. Plaintiffs brought suit against the defendant as the initial carrier for damages on account of loss occasioned by such freezing, due to the unusual delay in transportation and delivery, and recovered a judgment for $935.44, from which the defendant appeals.

The defendant requested the court to direct a verdict in its' favor for the reason, among others, that the release from freezing, signed by plaintiffs’ agent, exempted the defendant from the liability for which recovery is sought. Error is assigned on the refusal to give such request. Defendant insists that it should have been given under the rule of law applicable to such a release, stated by this court in Lardie v. Railroad Co., 192 Mich. 77. While the facts were somewhat different, the language employed in that opinion seems squarely decisive of the question here presented. Mr. Justice Kuhn, speaking for the court, said:

“Counsel contend that it is the settled rule in this State that a carrier is not liable for damages to freight caused directly by an act of God, notwithstanding a negligent act or omission of the carrier concurred to cause the damage. Such has been the decision in numerous cases where the immediate cause of the injury was a sudden and unforeseen event, occurring after a delay in transportation.” (Citing many cases.)

After discussing the question whether the danger of freezing was contemplated by the parties and the effect thereof, and quoting from Michigan Cent. R. Co. v. Burrows, 33 Mich. 6, and Clark v. Moore, 3 Mich. 62, it is further said:

“The plaintiffs contend that this indorsement (release on bill of lading) did not relieve the carrier of the duty to use ordinary care, and assert that it failed in this duty by its delay and (by implication) its failure to put a fire in the car. It is the general rule that a carrier may not exempt himself wholly from liability for his negligence, but can limit his liability only by. stipulations which are in themselves just and reasonable. (Citing authorities.) But the stipulation in this contract does not attempt to relieve from liability for negligence. It relieves from liability for a loss which the parties contemplated might be caused by an element beyond the control of both parties, wholly unrelated to any act or omission of the carrier. * * *
“The right of the carrier to limit his liability has been restricted on the ground that he might otherwise place the shipper in the plight of either not being able to ship his goods or having to accept an unreasonable limitation of the carrier’s liability for, negligence. But the plaintiffs were subjected to no such choice. They might have waited for a refrigerator car, but preferred to use a box car and excuse the carrier from liability for the danger to which the shipment would be subject under those conditions. They were not obliged to accept this car or none.
“Though the parties contemplated the possibility of a freezing, that fact did not make it the natural consequence of the breach of the contract by unreasonable delay. Even if it had, the plaintiffs have expressly absolved the carrier from liability for the consequences of freezing. There being no evidence that the plaintiffs suffered any damage as the natural and proximate result of the defendant’s alleged breach of the contract, a verdict should have been directed in favor of the defendant.”

We have quotéd thus fully from this opinion in view of the claim made by plaintiffs’ counsel that, in effect, it is in conflict with, if not overruled by, Young & Co. v. Railway Co., 201 Mich. 39. The latter case depended upon an entirely different state of facts. There was no release of liability on account of freezing involved in that case. Its reversal was on account of an error of the trial court in refusing to permit plaintiffs to show that the delay in transportation was unusual. While the views expressed may be said to be in conflict with what was said by Mr. Justice KUHN in the opening sentence of his opinion as to the settled rule when an unforeseen event produces the damage complained of, it in no way questions the soundness of the reasoning applied to such a release or the conclusion reached as to its legal effect. In fact, the gist of the opinion in that respect is quoted approvingly in the Young Case.

We, therefore, feel constrained to hold that this case is ruled by the Lardie Case. The judgment is reversed and a new trial ordered, with costs to defendant.

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


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    BAGAEFF v. PROKOPIK.
    1. Bills and Notes — Prima Facie Valid — Admission oe Consideration.
    By the execution of a promissory note, prima facie legal and valid, defendant admitted that his promise to pay was supported by a legal consideration.
    2. Same — Moral Obligation — Consideration.
    When a promise is made to pay a debt at one time legal and enforceable, but barred by a statute, the moral obligation to pay will support the subsequent promise.
    3. Same — Sale oe Real Estate — Oral Promise to Pat — Consideration.
    A promissory note given in settlement of a commission which defendant orally promised to pay plaintiff for his services in effecting an exchange of real estate is valid, although the statute (3 Comp. Laws 1915, § 11981) provides that “every agreement, promise, or contract to pay any commission for or upon the sale of any interest in real estate” shaU be void unless the same or some memorandum thereof be in writing, since the moral obligation resting upon defendant to pay for the pecuniary benefit received will constitute a sufficient consideration for the making of the note.
    On necessity that agent’s authority to purchase or sell real property be in writing to enable him to recover compensation for his services, see note in ii L. R. A. 601; 9 L. R. A. (N. S.) 933.
    On power of legislature to require contracts for commissions for finding a purchaser for real estate to be in writing, see note in 33 L. R. A. (N. S.) 973.

      Error to Wayne; Hosmer (George S.), J.
    Submitted October 12, 1920.
    (Docket No. 74.)
    Decided December 21, 1920.
    Assumpsit in justice’s court by John BagaefE against Michael Prokopik on a promissory note. There was judgment for plaintiff, and defendant appealed to the circuit court. Judgment for plaintiff on a directed verdict. Defendant brings error.
    Affirmed.

      Crandell & Tinkham, for appellant.
    C. II. & G. M. Lehman, for appellee.
   Sharpe, J.

The plaintiff sued upon a promissory note for $500, dated July 26,1919, executed by defendant and due in 60 days after date. The defendant, having given notice thereof with his plea, established the fact that the note was given in settlement of a commission which defendant had orally promised to pay plaintiff for his services in effecting an exchange of certain real estate belonging to defendant. A verdict was directed for plaintiff. From the judgment entered thereon, the defendant appeals.

There is nothing upon the face of the note which in any way impugns its validity. Prima facie it is legal and valid. By its execution defendant admitted that his promise to pay was supported by a legal consideration. Farnsworth v. Fraser, 137 Mich. 296. The question presented is thus stated by defendant’s counsel:

“The only question presented for consideration by the record is whether assumpsit can be maintained Upon a promissory note as between the maker and the payee, the consideration for the giving of which is an oral agreement to pay a commission for the sale or exchange of an interest in real estate."

Section 11981, 3 Comp. Laws 1915, provides that—

. “Every agreement, promise or contract to pay any commission for or upon the sale of any interest in real estate”—

shall be void unless the same or some memorandum thereof be in writing. The defendant relies on the many decisions of this court, wherein it has been held that a contract void under the statute of frauds is a mere nullity. Hall v. Soule, 11 Mich. 494; Scott v. Bush, 26 Mich. 418 (12 Am. Rep. 311); Lemon v. Randall, 124 Mich. 687; Rodgers v. Lamb’s Estate, 137 Mich. 241. He also calls attention to the following language in Liddle v. Needham, 39 Mich. 147 (33 Am. Rep. 359):

“In order to make one promise a valid and binding consideration for another, it must itself be valid and. binding,”

and cites many decisions in which this case has been referred to with approval. Ducett v. Wolf, 81 Mich. 311; Kroll v. Diamond Match Co., 113 Mich. 196; Bristol v. Sutton, 115 Mich. 365.

More clearly stated, the question as presented in this record is whether, in view of the pecuniary benefit received by defendant, any such moral obligation rested upon him to pay plaintiff as will constitute a sufficient consideration for the making of the note. The great weight of authority sustains the rule that when the promise is made to pay a debt at one time legal and enforceable, but barred by a statute, the moral obligation to pay will support the subsequent promise. In Edwards v. Nelson, 51 Mich. 121, it appeared that the note sued upon was given by a bankrupt, after his discharge, to pay the balance of an account compromised in the bankruptcy proceeding. In affirming a judgment on the note, this court said:

“We know of no law which prevents a man from Voluntarily paying his honest debts, or securing the payment thereof, if he desires, although the. right of creditors to enforce payment'may by the law be suspended; and this moral obligation to pay has always been held a good consideration to support a written contract for payment in a case like the present.”

See, also, Craig v. Seitz, 63 Mich. 727.

By statute (3 Comp. Laws 1915, § 12331) a debt barred by the statute of limitations may only be enforced when a written acknowledgment or promise to pay the same is given.

A distinction is drawn by some courts between the moral obligation which will support a promise to pay a debt at one time enforceable and such obligation to support a promise to pay a claim arising out of an agreement declared void by statute. We believe no such distinction should exist when a substantial pecuniary benefit has accrued to the promisor and the agreement, under which the oral promise to pay was made, was not forbidden as unlawful because of the moral turpitude involved therein. The facts here clearly show that under an oral agreement plaintiff rendered services for defendant, on account of which he received substantial pecuniary benefit. Plaintiff would have been unable to collect therefor because such agreement is declared by our statute to be void. Defendant would have but acted the part of an honest man had he paid plaintiff. While under no legal duty, we believe it may well be said that a moral obligation rested on him to do so and that such moral obligation is sufficient in law to constitute a valid consideration for his subsequent express promise in writing to do so. The void agreement left the parties as, though no agreement had been made. It was a nudum pactum, but the defendant, though presumably so advised, in recognition of the service rendered and of the pecuniary benefit he had received therefrom, says, in effect, to plaintiff, “You have performed a valuable service for me. I am not legally bound to pay you therefor, but I will do so. I have not the money in hand, but will give you my note therefor, due in 60 days.” Had he paid the money, it is clear that he could not have recovered it. We are of the opinion that this defense cannot now be interposed by him to defeat the collection of the note. We can see no distinction between the legal effect which should be given to such a moral obligation and one arising out of a promise to pay a debt barred by statute. There is no legal obligation to pay the latter, nor one from which a party is relieved by a discharge in bankruptcy. It is only a man’s sense of honor which prompts him to promise to pay that which he once owed but which he is not then liable to pay. The purpose of the statute was to prevent frauds and perjuries. It was designed to prevent disputes as to what the oral contract, sought to be enforced, was. Kelsey v. McDonald, 76 Mich. 188. While some courts hold contracts under such a statute to be merely non-enforceable (Mohr v. Rickgauer, 82 Neb. 398 [117 N. W. 950, 26 L. R. A. (N. S. 533]), we can see no reason why, if they be treated as void, as the statute declares them to be, the moral obligation arising therefrom, when pecuniary benefit has accrued to the promisor, should not support a subsequent written promise to pay the amount earned by the promisee thereunder. The defendant has enjoyed the benefit of the service rendered. He afterwards, and contemporaneous with the closing of the transaction, saw fit to obligate himself to pay for such service. We conclude that he should be bound by such obligation to the same extent as if there had been a legal obligation antecedent thereto.

In 25 R. C. L. pp. 440, 441, the question is discussed at some length. It is said:

“It has been held that while an oral promise is unenforceable so long as it remains in parol, it constitutes a sufficient consideration to support a note given in payment of the commission. This latter would seem to be the better view and is in consonance with the general rule that the memorandum of a contract required to be in writing need not be made at the time the contract is entered into.”

Among the cases cited is Muir v. Kane, 55 Wash. 131 (104 Pac. 153, 26 L. R. A. [N. S.] 519, 19 Ann. Cas. 1180) . The facts in that case were substantially the same as here. The claim arose out of an oral agreement to pay a commission on the sale of real estate, declared void by the statute of that State, and which the defendant had afterwards promised in writing to pay. The court said:

“It is clear that this writing was not intended as an agreement authorizing the respondent to sell the real property mentioned. In fact, it was executed after that service had been performed, and is an agreement in writing to pay a fixed sum for a past service, not a service to be performed in the future.”

After stating the distinction sought to be drawn between obligations resting on contracts in which the right of recovery had lapsed by reason of a statute and those arising out of contracts declared void, the court said;

“It has seemed to us that this distinction is' not sound. The moral obligation to pay for services rendered as a broker in selling real estate under an oral contract, where the statute requires such contract to be in writing, is just as binding as is the moral obligation to pay a debt that has become barred by the statute of limitations; and there is no reason for holding that the latter will support a new promise to pay while the former will not.”

The opinion in Ferguson v. Harris, 39 S. C. 323 (17 S. E. 782, 39 Am. St. Rep. 731), discussing the distinction claimed, is quoted from, with approval, as follows:

“In the one case the legal obligation is gone as effeetually as if it had never existed; and I am at a loss to perceive any sound distinction in principle between the two cases. In- both cases, at the time the promise sought to be enforced is made, there is nothing whatever to support it except the moral obligation; and why the fact that, because in the one case there was once a legal, obligation, which, having utterly disap-' peared, is as if it had never existed, should affect the question, I am at a loss to conceive. If in the one case the moral obligation, which alone remains, is sufficient to afford a valid consideration for the promise, I cannot see why the same obligation should not have the same effect in the other.”

Attention is also called to the following language in Anderson v. Best, 176 Pa. 498 (35 Atl. 194):

“The distinction sought to be made between considerations formerly good, but now barred by statute, and those barred by statute in the first instance, is not sub-, stantial, and is not sustained by the cases.”

We are not unmindful that in 13 C. J. p. 358, it is said:

“A moral obligation which has at no time been a legal duty will not, according to the great weight of authority, afford a consideration for a promise.”

Many cases are cited to support this rule of law, among them being Stout v. Humphrey, 69 N. J. Law, 436 (55 Atl. 281), and Bagnole v. Madden, 76 N. J. Law, 255 (69 Atl. 967), two cases which defendant strongly relies on. These are considered in Muir v. Kane, supra, and the reason for disapproving them so clearly pointed out that we refrain from discussing them.

The judgment appealed from is affirmed.

Mooee, C. J., and Steere, Brooke, Fellows, Stone, Clark, and Bird, JJ., concurred.


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    CUTLER v. LOVINGER.
    1. Vendor and Purchaser — Land Contracts — Right of Vendee to Convey Interest in Property.
    The vendees in a land contract have an equitable interest in real estate, !and they have a right to contract to sell and convey the same, notwithstanding a provision in their contract that they cannot assign it without the consent of their vendor.
    2. Same — Specific Performance — Consent of Vendor.
    It was no defense, in a suit for specific performance of an agreement to enter into a land contract, that the owner of the fee, from whom defendants ’ were purchasing on a land contract, had refused to consent in writing to the assignment of the same to plaintiff, where it appeared that plaintiff, in accordance with the terms of the agreement he was seeking to enforce, was prepared to pay defendants more than the amount they were owing on their contract, and the owner testified that he was ready to convey the premises to defendants when the amount due him was paid; it thus appearing that it was within the power of defendants to perform.
    Appeal from Wayne; Hosmer (George S.), J.
    Submitted October 6, 1920.
    (Docket No. 22.)
    Decided December 21, 1920.
    Bill by Abraham J. Cutler against Joe Lovinger and another for the specific performance of a land contract. From a decree for plaintiff, defendants appeal.
    Affirmed.

      Leon Dreifuss, for plaintiff.

      Clarence P. Milligan, for defendants.
   Sharpe, J.

On July 11, 1919, defendants entered into an agreement in writing with plaintiff whereby they agreed that on plaintiff’s paying the sum of $3,000 ($100 of which was then paid) they would enter into a land contract to sell and convey to him certain. premises in the city of Detroit for a consideration of $10,700. It further provided that the defendants, who then held under a land contract only, would, on the payment of a sum equal to their equity, assign their land contract to plaintiff.

On July 18th plaintiff notified defendants that he was ready to close the deal. They then told him that their contract to purchase contained a provision that they could not assign it without the consent of their vendor, Clarence P. Milligan, and that he refused to consent to such transfer. While there is dispute as to when such statement was made, we find the fact to be as stated. Plaintiff thereupon caused a contract to be prepared, embodying the provisions of the agreement of July 11th, and tendered it to the defendants, together with the sum of $2,900, then to be paid, and demanded the execution thereof. Defendants refused to sign for the reason before stated, and plaintiff filed the bill herein to compel performance.

Mr. Milligan appeared for defendants on the trial, and in response to a question of the trial judge said:

“Whenever I am paid up I will deed the property to Mr. and Mrs. Lovinger and then they can do as they please. $2,298 is the amount of my interest.”

The trial court decreed specific performance and defendants appeal. In the brief filed by their counsel it is said:

“The only issue in the case is whether the trial court, in ordering a decree for plaintiff for specific performance, was correct or wrong in holding that it was no defense to the carrying out of the terms of the contract of sale between the plaintiff and defendant that the owner of fee in the property from whom defendant was purchasing, had refused to consent in writing to the assignment of the .contract of sale between said owner and defendant in this case.”

We are not here concerned with the effect of the provision restricting the right of assignment as between the defendants and Mr. Milligan. The defendants owned an equitable interest in the .real estate and had the right to contract with plaintiff that they would sell and convey the property to him. Bird v. Hall, 30 Mich. 374. An assignment of their contract would, of course, be subject to all defenses which Mr. Milligan might make when performance had been had by the plaintiff as assignee and a conveyance demanded.

It appeared, however, that Mr. Milligan was ready and willing to convey to defendants when the amount due him, $2,298, was paid. The plaintiff tendered defendants $2,900, more than enough to satisfy this amount. There was nothing to, prevent defendants’ paying Mr. Milligan the amount due him, securing a deed to themselves and entering into the contract agreed upon with plaintiff. We see no reason why specific performance should not be decreed.

The decree appealed from is affirmed, with costs to plaintiff.

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