197 Mich. 214 | Mich. | 1917
It will not be necessary or profitable to attempt a résumé of the pleadings in this case, which cover 79 pages of the record. The case must largely be disposed of as one of fact, and the pleadings are admittedly sufficient to permit disposition of the questions involved. We shall state the facts which we find established by the record, and only refer to the pleadings and the claims of the - various parties as occasion may require.
Defendants Wladislaw Chilinski and Teodozia Chilinski are husband and wife. They had lived in Detroit for 30 years, Mr. Chilinski was by occupation a merchant tailor; they had accumulated some property. On December 9, 1914, they purchased from defendant Stanton, on a contract, a farm of 300 acres, located below Detroit and fronting on Lake Erie. The consideration was $25,000; $15,000 was paid in cash and property, leaving $10,000 unpaid, and of which sum
The Chilinskis engaged several real estate agents to sell the farm for them, among them being Perry Shumway. Their price was $25,000. On August 4, Mr. Shumway brought plaintiff Lord out to the farm and introduced him as a millionaire steel manufacturer of Toledo, who wanted to buy the farm. The farm was looked over quite thoroughly, some time being occupied, during which Lord took occasion to impress Mr. Chilinski with his wealth and importance, telling him that he was part of a big corporation, one of the best furnace and steel men; that he was going to meet Mr. Carnegie shortly to purchase a large amount of steel. He also impressed upon Mr. Chilinski that he must keep- the transaction secret, as he (Lord) desired to buy more land around there to put up a furnace, and apparently was much impressed with the place and wanted to buy it, although his available funds were somewhat tied up. We are clearly of the opinion that the impression then made by Lord, through his representations as to his wealth and standing, the statements made by Shumway in Lord’s presence, and not disputed by him, were the procuring cause of the contract made the next day, and of the confidence reposed in Lord by the Chilinskis as to the effect of its provisions. As a matter of fact Lord was a promoter pure and simple, totally unable financially to perform;
• It was agreed that they should meet at Lord’s office and execute the contract the next day. Shumway had put a price of $30,000 on the farm and agreed to share the excess with Mr. Chilinski. The next day the Chilinskis went to Detroit to execute the contract; they went to Mr. Lord’s office on the seventeenth floor of the Dime Bank Building; the name on the door, “Border Steel Manufactory,” and pieces of steel shown them, bore out the impressions created the day before. Mr. Lord prepared the contract, the Chilinskis not being represented by counsel; they took with them their contract with defendant Stanton, which Lord examined ; he informed them that it was an unfair contract, and proposed to give them a better one. Considerable time was consumed in the preparation of this contract, and it was rewritten several times. Evidence was offered and received, over plaintiffs’ objection, as to statements made by Lord during the preparation and execution of this instrument, which are claimed to be inadmissible for the reason that they tend to change the terms of a written instrument. The rule is well recognized that, where a written instrument is unambiguous, parol testimony is inadmissible to explain, or to change, vary, or contradict, its terms. But where the issue, as here, involves the question of
On August 25th a short memorandum was signed by the Chilinskis and Lord, in which the Chilinskis agreed to sell some furniture in the club house, and some nets, boats, etc., including one-half interest in the fish in the fish pen, to Lord for $150,. with the proviso that $350 additional should be paid if Lord’s half interest in the fish were sold for $500, with a reduction in amount proportionate to the reduction below that figure that the fish brought. August 25th Lord organized and became president of the plaintiff Lake Erie Land Company, with $1,000 capital stock, of which $500 was paid in cash by Lord’s wife, 48 shares standing in her name, and 1 share each in the name of Lord and H. E. Schiller. On August 30th, Lord assigned the contract with the Chilinskis to this corporation.
A suit was commenced by one White, a real estate dealer, against Chilinski on August 31st, and garnishment proceedings were instituted against both plaintiffs. It appears from the testimony of. White’s former partner that White’s claim was for services in making the sale to Lord, although the record does not disclose that he was active in any way in that transaction. Chilinski gave bonds in both garnishment proceedings, and the proceeding against Lord was discontinued October 5th, and that against Lake Erie Land Company October 7th.
Soon after the abstracts were returned to Lord, they were turned over to his attorney for examination. There was no unnecessary delay on the part of the
Through all the negotiations, and indeed throughout the litigation, it seems to be conceded that Stanton had a merchantable title, acquired through adverse possession. Most of the farm had been in the Stanton family for over 40 years, and all of it for a period beyond the statute of limitations. The distinction is most strenuously urged by plaintiffs between a merchant-
Persistent demands on Lord by the Chilinskis for money were fruitless. A payment of $2,000 was due to Stanton on their contract December 10th. The fore part of that month Chilinski went to see Lord in a last-attempt to get some money. Chilinski and Lord alone were present at this interview. Their testimony as to what took place is in direct conflict. We must adopt as true one or the other of their versions of the talk. Mr. Chilinski claims that he explained that he must have the money to pay Stanton in order to insure Lord’s getting the place, or he would have to sell it to some one else, and that Lord told him, if he had any customer, to sell the place. Lord denies that he said this. When we take into consideration the fact that several very reputable witnesses testified that Lord’s general reputation for truthfulness was bad, consider all the transactions involved in this litigation, consider the fact that for four months Chilinski had been nagging him for money, and when we carefully read the testimony of these two men, as it appears in this record, we are bound to accept the version of Chilinski as to what took place, and particularly in view of the
The Chilinskis proceeded to sell the premises to defendant Stuart shortly after this conversation, but the deal was not closed until December 29th, when Stuart took an assignment of the Stanton contract, and deeded certain property to the Chilinskis, and paid the balance in cash. Stuart frankly states that he saw and read over the Lord contract. He was told by the Chilinskis and their attorney that the contract had been forfeited, but he made no inquiry of Lord as to his claim. We do not find that he was a bona fide purchaser, but' by the assignment of the contract with Stanton he acquired all the rights of the Chilinskis, no more and no less. If the Lord contract was not enforceable against the Chilinskis, it was not enforceable against their assignee.
Lord soon learned of this transaction; this bill was filed on January 6, 1916, praying for a specific performance of the contract of August 5th. Prior to filing the bill no tender was made, although- in the bill performance is offered. Later, and on February 16th, a tender to defendant Stanton of $2,000 was made, and on the same day a tender of $4,950 was made to defendant Stuart, and a like tender was made to defendants Chilinski. On February 15th, $2,000 was deposited with the clerk of the court as a tender of the amount due defendant Stanton; April 20th a supplemental bill was filed with leave of the court. Answers to the original and supplemental bills were filed. An amended answer in the nature of a cross-bill was filed by defendant Stuart, during the hearing of the case, by leave of the court. It was clearly within the discretion of the trial court to permit this to be done. By
The case was advanced for hearing, and over a week was consumed in taking proofs. The trial court found that the Chilinskis were people of considerable intelligence, understood English fairly, but had little experience in making contracts, and little understood the meaning of many of the provisions of the contract drawn by Lord; that Lord was a clever promoter; that the contract was procured by misrepresentation, and was unconscionable; that Lord, when he procured the contract, was in no position financially to carry out its terms, and that it was procured by him for speculative purposes; that it was unenforceable in a court of equity, and should be set aside. The bill and supplemental bill were dismissed, and the prayer of defendant Stuart’s cross-bill was granted. Plaintiffs were to be repaid the $50 paid to the Chilinskis and the costs of certifying the abstracts.
With this disposition of the case we agree. This bill is filed to procure the specific performance of the contract. Remedy by specific performance is not a remedy of right. It rests in the sound discretion of the court. That discretion should not be exercised, unless the case is clear. It should never be exercised where the moving party does not come into court with clean hands, with equities in his favor. This unconscionable contract was procured by this clever and irresponsible promoter from this Polish couple, by misrepresentations well calculated to beget confidence, well calculated to deceive. They were anxious to dispose of the farm. Unskilled and inexperienced in the technical phraseology of legal documents, with the glamour of a millionaire steel man surrounding Lord, they were “clay in the potter’s hands.” With no one
Some minor questions are raised by plaintiffs’ counsel which require consideration. We have referred to a memorandum, made August 25th, for the sale of some personal property. It is urged that Lord has not received all of this personal property, and that part of the same is now involved in a replevin suit. Counsel insist that Chilinski should be decreed to pay the value of some or all of this property. Lord paid the $150 contemplated by this contract, by a check which went to protest. Later he paid this sum. Chilinski testifies that it was paid with money obtained by Lord from the sale of fish owned by Chilinski ; Lord denies this. For the reasons already given, we give credence to Chilinski’s testimony; if it is true, and we believe it is, Lord is not entitled to an accounting on this transaction. The decree of the court be
In a reply brief, filed by plaintiffs after the case was submitted in this court, it is urged for the first time that Stuart is not entitled to affirmative relief, because it amounts to the enforcement of a land contract upon which the specific tax required by Act No. 91 of the Public Acts of 1911 (1 Comp. Laws 1915, § 4268 et seq.) has not been paid. It is not necessary for us to determine whether this is a case for the application of this statute; the question was not raised in the court below, or in the original brief; under numerous authorities, it is too late now to raise it.
The decree of the court below is affirmed, with costs to the defendants. One solicitor’s fee will be allowed.