256 N.W. 445 | Mich. | 1934
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The facts in this case were sufficiently reported when it was here in
Plaintiff recovered judgment for $5,794.94. Defendant appeals, claiming the court erred in refusing to grant defendant's motion for judgment notwithstanding the verdict and, in the alternative, in refusing to grant defendant's motion for a new trial; the verdict was excessive and against the great weight of the evidence; the court erred in refusing defendant's request to charge regarding the measure of damages, and failed to properly instruct the jury respecting the damages and measure thereof; in receiving in evidence the statutes of Florida showing the rate of interest in that State; in allowing defendant *305 to be examined as to the volume of its business, and in permitting plaintiff's exhibit I to be received in evidence, and the arguments of counsel for plaintiff were so prejudicial and unfair as to constitute reversible error.
(1) Recovery could not be had under the common counts in assumpsit for breach of the written contract between the parties. Butterfield v. Seligman,
(2) It is contended the parties engaged in a joint enterprise, are to be regarded as partners, and consequently plaintiff may not maintain this action against defendant.Keiswetter v. Rubenstein,
"A member of a joint adventure who has been injured by a breach of contract by his associate, or by the latter's conversion to his own use of the joint property or some part of it, * * * may, in a case where the amount of plaintiff's claim is capable of ascertainment and computation by a jury, bring an action at law to redress his grievance, and may in such action recover the damages which he has suffered from the injury alleged."
(3) There could be no recovery until defendant sold the property and converted it, or the proceeds thereof, to its own use and benefit; but, upon the sale and conversion of the property in which the parties were mutually interested, by defendant, the law implies a promise by defendant to account and pay over to its associate or coadventurer the share of the proceeds of the venture to which he was entitled. 33 C. J. p. 866.
(4) There was testimony which warranted a finding defendant had money or property in its hands as a result of the sale or trade of the houses in question. A verdict could not have been properly directed for defendant.
(5) It is claimed plaintiff may not recover the proceeds of the four houses disposed of in November, 1919, for the reason it was admitted on the former trial these houses had been settled for and such admission is binding here.
"Where an admission is made on one trial, the admitting party, on a second trial, is estopped from *307
taking a position inconsistent with that taken on the first trial. Connor v. Railway Co.,
This rule is generally recognized. Bigelow on Estoppel (6th Ed.), p. 633; Wetmore v. McDougall,
"A judicial admission made intelligently and with deliberation establishes the fact with reference to which it is made, and the jury must accept it as so established."Connor v. Railway Co.,
The court quoted with approval from Greenleaf on Evidence (16th Ed.), § 186:
"To this end, they must be distinct and formal, or such as are termed solemn admissions, made for the express purpose of alleviating the stringency of some rule of practice, or of dispensing with the *308 formal proof of some fact at the trial; in such cases, they are in general conclusive, and may be given in evidence, even upon a new trial," and cited 2 Chamberlayne on Evidence (1st Ed.), § 1232 et seq.; 4 Wigmore on Evidence (1st Ed.), § 2588 etseq., and other authorities.
The court was not in error in holding upon a retrial of the case, after reversal, the parties had a right to go into all the facts and this admission was not conclusive.
(6) Defendant assigns error upon the failure of the trial court to give its request to charge:
"I further charge you that it is undisputed that the properties identified as lot 2, block 21; lot 6, block 27; and lot 7, block 27, were sold at a price which did not enable the defendant to realize a profit; and said properties not having been sold at a profit over and above the cost of construction, plus the stipulated lot prices, plaintiff is not, therefore, entitled to recover as a result of the sale of said properties."
The court did not give this request in relation to the three houses and lots above discussed. The court charged the jury it was the duty of defendant in selling these lots to sell them at the prices fixed by the parties and account to plaintiff on the basis of the selling price agreed upon, if it was agreed upon; if, on the other hand, Mr. Bolles and plaintiff did not agree on the selling prices of these lots, failure would not deprive defendant of the right to sell the lots, but it would be the duty of the defendant to sell them, in the absence of any express agreement, at not less than the fair market value thereof. We find no error in this charge.
Defendant contends the court was in error in charging upon the measure of damages. The trial court charged, it was the duty of defendant under *309 the circumstances to sell the properties at the prices fixed by Bolles and Mitchell and if such prices were not fixed to sell them at not less than their fair market value. He charged that if defendant sold the properties for less than the fair market value, then, such loss of the difference between the fair market value and the selling price, in case they were sold for less than they should have been sold for, resulting in a loss to defendant, was not binding upon plaintiff, who was to be compensated upon the basis of one-half the difference between the cost of the properties and the fair market value thereof, and not on the basis of one-half the difference between the cost and the depreciated selling price at which they might have been sold by defendant.
(7) Defendant assigns error upon the failure of the court to charge the jury as follows:
"I charge you that before the plaintiff shall be entitled to recover a verdict in this case, he must establish by a preponderance of the evidence that in the exchange of the properties in question the defendant realized an actual profit over and above the contract cost of the houses, which cost includes the contract price of the lots and the cost of construction."
The charge was properly refused. The determination of the amount of damages was governed not by what defendant received, but by what defendant ought to have received, the fair market value of the premises, and the fair market value of the premises. less the cost, equaled the profits which were to be divided between the joint adventurers on the basis of contract.
(8) It is contended the trial court erred in admitting in evidence the Florida statutes under which interest at eight per cent. was recoverable. The only mention of interest in plaintiff's declaration is at *310 the conclusion of the first count the language "to plaintiff's damage $5,000 with interest to date of trial at eight per cent." No recovery was had upon this count of the declaration. Recovery was had upon the basis of the common counts. While the declaration in the first count claims interest to date of trial at eight per cent. the general rule is stated in 33 C. J. p. 258 that:
"In order to support the recovery of interest according to the law of another State, such law must be specifically averred and proved. Proof at the trial in the absence of such averment is insufficient."
The common law of any other State of the United States may be proved as a fact by parol evidence and the books of reports of cases adjudged in their courts may be admitted as evidence of such law. 3 Comp. Laws 1929, § 14181. Printed copies of the Constitution and laws of any other of the United States purporting to be published under the authority of the State government or if commonly admitted and used as evidence in their courts may be admitted in all courts of this State asprima facie evidence thereof. 3 Comp. Laws 1929, § 14179. The courts of this State may take judicial notice of the common law of other States of the United States, 3 Comp. Laws 1929, § 14181, and of the statutory law of such foreign States without the formal introduction in evidence of the printed copies thereof. 3 Comp. Laws 1929, § 14179. The proof of the rate of interest in Florida was introduced in a proper manner.
The important question is whether in rendering a verdict in this State the jury should have been directed to consider the evidence of the rate of interest in Florida rather than the rate of interest in this *311 State. The contract in question was a Florida contract made and entered into in Florida. It concerned Florida property. It contemplated performance in Florida, and a settlement and division of profits in that State. The basis of plaintiff's recovery is the failure of defendant to account and pay over to plaintiff his part of the profits which the law implies a contract to do.
The question of interest is purely statutory.Kermott v. Ayer,
There is no doubt the contract was made in Florida and contemplated performance in Florida, but suit *312 was brought in Michigan, and the remedy available was the remedy afforded by the laws of Michigan.
Plaintiff relies upon 5 R. C. L. p. 986, § 67, which declares the weight of authority sustains the rule that the measure of damages is a matter of substantive right rather than of remedy. This rule was expressly repudiated in Walton School of Commerce
v. Stroud,
In Federal Surety Co. v. A. Bentley Sons Co. (C.C.A.),
"We think the prevailing rule is, however, that where interest is not specified in the contract, but is awarded merely as damages for the breach thereof, the rate of interest is to be computed according to *313 the law of the State where the court rendering judgment is located."
It is clear the interest here involved is recoverable by way of damages, for refusal to pay over money claimed to be rightfully due plaintiff, — for unlawful detention. It is not based on contract providing therefor. The measure of damages therefor is in this State governed by its law. We think plaintiff should have been limited to the recovery of interest at the legal rate in Michigan.
(9) We find no error in the court receiving plaintiff's exhibit 1 in evidence nor in the examination of the witnesses in relation thereto.
(10) Error is alleged upon the argument of counsel for plaintiff. We think the argument was fairly within the range of the testimony and no reversible error was committed.
The judgment will be reversed and the cause remanded, with directions to enter judgment for plaintiff on the basis of including interest at five per cent. instead of at eight per cent. Defendant will recover costs of this court.
NELSON SHARPE, C.J., and NORTH, FEAD, WIEST, BUTZEL, BUSHNELL, and EDWARD M. SHARPE, JJ., concurred. *314