Docket No. 27, Calendar No. 39,652. | Mich. | Dec 14, 1937
Whitlock, Smith Company, brokers in the city of Detroit, brought suit to collect a commission from defendants for securing a customer for the purchase of their stock in the American Broach Machine Company. They alleged in their declaration that their dealings were with Francis J. Lapointe, who, besides being a large stockholder in the American Broach Machine Company, also represented all the other stockholders, all of whom are defendants herein and who together owned the capital stock of the company. Plaintiffs claim that they were to receive a commission upon the sale of the capital stock based upon the net worth of the company, which was to be estimated by an audit and appraisal plus 10 per cent. for good will and patents, *332 and that they did secure such a customer. An exhibit, attached to the declaration and referred to therein, consists of a letter addressed by plaintiff's agent to defendant Francis J. Lapointe, stating that the negotiations were to be handled in the name of plaintiffs and that if it should be possible for them to work out a deal for the sale of all or a portion of the "business" on terms satisfactory to the sellers, along the lines and conditions discussed the previous day, plaintiffs would want a commission of 10 per cent. if, when, and as payments were made.
Plaintiffs further allege that they attempted to interest a number of responsible manufacturers, and finally succeeded in securing the Sundstrand Machine Tool Company as a purchaser of the capital stock of the American Broach Machine Company. Prior to the sale being consummated, the American Broach Machine Company first deeded its real estate to the stockholders, who thereupon gave a lease and option to the purchaser, thus eliminating the real estate from the assets in determining the net worth of the company and fixing a price for the stock. Sundstrand Company gave to the defendants 29,145 shares of the Sundstrand stock in payment for the American Broach Machine Company stock. Defendants made a motion to dismiss on the ground that the declaration had attached to it a letter of plaintiff's agent; that the letter referred to the sale of the business; that "business" meant assets, which included real estate; and that for this reason, the contract was for the sale of real estate as well as personal property and not being in written form was void under the statute of frauds (3 Comp. Laws 1929, § 13417). The trial judge granted the motion and plaintiff appeals from the order of dismissal.
The cause of action is not based upon the letter but upon the oral contract made the previous day. When *333
there is a variance between a pleading and an exhibit attached thereto, if such exhibit is not the basis of the action, the pleading is controlling. Bailey Construction Co. v. Cornett,
The sale itself was consummated by the sale of stock. The construction placed upon the sale by the parties themselves must be considered as having great weight. McIntosh v. Groomes,
The motion to dismiss should have been denied. The order of dismissal is reversed, with costs to plaintiff.
FEAD, C.J., and NORTH, WIEST, BUSHNELL, SHARPE, POTTER, and CHANDLER, JJ., concurred. *334