Barrett v. Miller

144 Mich. 454 | Mich. | 1906

Ostrander, J.

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

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

And again:

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

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

It is further said:

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

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

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

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

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

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

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

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

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