96 Mich. 483 | Mich. | 1893
In 1885, plaintiffs held about $40,000 of the capita] stock of the Galvin Brass & Iron Works. The defendant was also a stockholder and director in the corporation. An agreement was entered into between the plaintiffs and defendant, by the terms of which defendant agreed, for a consideration of $3,000, to secure for plaintiffs the majority of the stock, so that at stockholders' meetings the plaintiffs could control the organization of the board, the election of officers, etc. The plaintiffs gave
“ The Galvin Bros. (Thaddeus Galvin, John Galvin), on the one part, and the Galvin Brass & Iron Works, the People’s Savings Bank, and M. W. O’Brien, severally, on the other part, have settled in full all matters and differences between them, and all claims and counter-claims and demands they may have jointly or severally against each other, of every kind and description, the same as if such claims and demands were herein particularly described and mentioned. It is understood that certain patterns belonging to Galvin Bros. * * * will be delivered to Galvin Bros, on demand.”
This is dated December 15, 18S8, and signed by all the parties. Subsequently the bank sought to enforce collection of the two mortgages held by it against the plaintiffs, and the plaintiffs defended against these foreclosure proceedings, claiming that the mortgages were included in this settlement; but this claim was determined adversely to them. See 81 Mich. 11. They then brought this suit against defendant, O’Brien, to recover the amount of the $3,000 paid to him, claiming that the receipt or agreement was signed under a mistake of fact on their part.
The circuit judge directed a verdict for the defendant. No error was committed in the giving of this instruction. The plaintiffs’ testimony offered in this case tended to
“There was no question at all but what Mr. Galvin and I thoroughly understood that that $3,000 claim was settled and embraced in the settlement. I do not say that Mr. Galvin understood the mortgages were included/ but do say that Mr. Galvin knew that the $3,000 claim was settled.”
Mr. Galvin testified, in effect, that Mr. Stevenson had full authority to effect a settlement of the matters in controversy. -It is very clear from this testimony that the $3,000 item was in fact included in the settlement If the plaintiffs could under any circumstances avoid the agreement, — which we do not decide, — certainly it was incumbent upon them, before bringing suit upon the original obligation, to place the parties in statu quo. Pangborn v. Insurance Co., 67 Mich. 683; Crippen v. Hope, 38 Id. 344; Jewett v. Petit, 4 Id. 508; Walsh v. Sisson, 49 Id. 423; Headley v. Hackley, 50 Id. 43.
To admit plaintiffs* contention here would result in making a contract entirely different from the one which they claim to have entered into, and much more to their advantage. It is their contention that this $3,000 claim was settled, and was offset against $1,900 of mortgages held by the bank. After discovery, as they say, that the $1,900 item was not included in the settlement, they seek to recover the. full $3,000 from this defendant, profiting by their alleged mistake to the amount of $.1,100, and this without
Judgment will be affirmed, with costs.