220 Mich. 274 | Mich. | 1922
On January 2, 1920, the defendants in writing appointed the plaintiff the sole and exclusive agent to sell their farm of 160 acres and certain personal property thereon in the township of Sumpter in Wayne county at the price of $28,000, with-down payment of $22,000, at an agreed cash commission of 5% on the sale price. On January 7, 1920, a written contract was entered into between Frank Budzik and his wife and the defendants whereby Budzik and wife agreed to sell to defendant a certain bakery building and dwelling house for a consideration of $30,000, and defendants agreed to sell to the Budziks their farm for $24,000, the difference to be paid in installments agreed upon. This agreement further provided:
“It is agreed and understood that the parties hereto are depositing one thousand (1,000) dollars note each at the Merchants & Mechanics Bank of Hamtramck as a deposit to bind this deal and should either party hereto withdraw from this agreement the $1,000 note shall be turned over to the other party as damages.”
It contained a further provision:
“The parties of the first part agree to pay the agent’s Michael Kolodziejczak three (3) per cent, commission for selling their property and the parties of the second part agree to pay their agent Mathew Kolodziejczak, five (5) per cent, commission for selling their property.”
It is admitted that the plaintiff “was the agent who brought these parties together to enter into that agreement.”
There was some delay in procuring an abstract of title to the property. On April 30, 1920, plaintiff’s brother, who was the agent of the Budziks, went to defendants’ home and asked if they were ready to close the deal. They refused to do so, the reason assigned therefor being in dispute. It appears that defendants on June 28, 1920, sold their farm to one John Deboski.
“I think that I «will let the matter stand as coming too late in view of the court having already disposed of the matter and the jury are about to return a verdict in compliance with the requests of the court.”
Before the enactment of Act No. 200, Pub. Acts 1915 (3 Comp. Laws 1915, § 14566), a plaintiff might withdraw his claim if set-off was not pleaded at any time before the jury retired to consider their verdict. Helwig v. Wayne Circuit Judge, 73 Mich. 258; Ludeman v. Hirth, 96 Mich. 17 (35 Am. St. Rep. 588); Deneen v. Railway Co., 150 Mich. 235 (13 Ann. Cas. 134) ; Davis v. Railway, 162 Mich. 240. The section noted above reads:
“That in any civil action hereafter commenced in this State, whenever the defendant shall have entered upon his defense to the action in open court, the plaintiff shall not be allowed to discontinue his suit or submit to a non-suit without the consent of the defendant.”
It was held in Mintz v. Soule, 200 Mich. 9,- that such withdrawal may be had notwithstanding the statute if asked for before the defendant has “entered upon his defense in open court by putting in his testimony upon the merits.”
This error is not, however, in any way prejudicial to plaintiff. The verdict as to the second count was not directed because plaintiff had not proven a cause
“The estoppel does not depend upon the question whether justice was done in the first suit, but upon the merits having once been considered and passed upon.” Fifield v. Edwards, 39 Mich. 264, 266.
“No judgment in any legal proceeding can be a bar unless the rights of the party whose claim has been presented for adjudication have been passed upon, or he had the right in such proceeding to have the merits of such claim adjudicated.” McKinney v. Curtiss, 60 Mich. 611 (syllabus).
The judgment is affirmed, with costs to appellee.