214 Mich. 566 | Mich. | 1921
This case was before this court in 200 Mich. 259. A reference to that opinion will obviate the necessity for a lengthy statement of facts. It was there decided that on the record as made a verdict
“It appears that at the time the $8,000 mortgage was executed by defendant to plaintiff, the grape juice plant was equipped with machinery.”
It was further said:
“Nor does it appear that the money was advanced by either of the mortgagees to the mortgagor for the purpose of purchasing equipment for the plant.”
We quote from the cross-examination of defendant in the record now before us:
“At the_time of this $8,000 mortgage to O’Dell there was no juice plant on the land * * * This money was borrowed from O’Dell to take up' a $2,000.00 mortgage which was due and the rest of the money was spent in building this plant.”
The plaintiff testified:
“I told him a loan of this kind was perilous because he had his loans divided up as he did and because I didn’t agree with his values on vineyard lands. He gave me Exhibit A at this time. This is the conversation about it. He said all the money was going into the plant and machinery and enhanced the value of the security. I said that was true and if business relations were consummated between us as we figured*569 it would be, that there was a period and time at which material would be there before it went into the building and before the building could be finished. He satisfied me as far as the building was concerned but not as far as the machinery would be concerned. He then asked what he could do, how he could satisfy me and I told him it would be necessary for him to give me a chattel mortgage on the machinery until it was attached to and became a part of the building and was put into it and used as a factory. And that he agreed to do. I told him to put it in writing. He left the office and came back again and had it in writing and the next day we drew the mortgages and I gave him the money.”
The writing, in the form of a letter addressed to plaintiff and signed by the defendant, reads:
“I write to confirm our verbal arrangement and that is that as soon as I build and install the machinery for the juice plant, which I intend to do with the money I am borrowing from you, I will give you a chattel mortgage on the same.”
Plaintiff further testified that when the plant was completed he saw defendant and—
“I said, ‘Mr. Day, I see you have got the machinery here.’ And he said, ‘Yes.’ And I said, ‘Well, how about the mortgage you were to give me on it?’ ‘Well, he says, ‘it is all attached to the building now, and,’ he said, ‘I have been so awful busy and I am short of time,' he said, T didn’t bother with it.' He says, I intended to write you about it but I have been working here late hours at night, but it is in the building, and,' he says, T guess you are satisfied with your security, aren’t you ?’ ”
Further evidence of the intention of the parties is supplied by the letters written by defendant to plaintiff, quoted at length in the former opinion. The only purpose defendant could have had in writing them was to seemingly admit that plaintiff was entitled to the equipment in the plant and thus lull him into
“A Mr. Girard who had for 19 years been water commissioner of the city, having charge of its waterworks and sewers, was called by plaintiff as an adverse witness under the statute (3 Comp. Laws 1915, § 12554). After plaintiff’s counsel had completed his cross-examination, the witness was fully examined by defendant’s counsel before the motion for a directed verdict was made and much important testimony was given by him. We do not understand counsel to agree fully as to the force to be given this witness’ testimony. It will be sufficient that we say that under the terms of the statute plaintiff was not bound by the testimony of this witness and was at liberty to call such witnesses as she desired to dispute his testimony, but as to such testimony as this witness gave upon his examination by defendant’s counsel as is undisputed, it must be treated as though introduced by defendant from a witness originally called by him with the same benefit as though the witness was examined in the first instance by defendant’s counsel. In other words, while plaintiff was not bound by anything this witness testified to,’ and could dispute all testimony given by him, this did not deprive the defendant of the right to examine him as its witness or to the benefit of the testimony given by him upon such examination. Such facts as were testified to by him upon such examination and which are undisputed*572 must be given the same effect as though elicited from a witness originally called by defendant.”
If the facts testified to by defendant when examined by his own counsel “must be treated as though introduced by defendant from a witness originally called by him with the same benefit as though the witness was examined in the first instance by defendant’s counsel,” we can see no reason why such witness is not subject .to the same rules relative to impeachment as apply to any other witness who might be called by the defendant.
In order that the conduct of the plaintiff should constitute an estoppel, it must appear that the defendant had acted to his prejudice relying on it. In Detroit Savings Bank v. Loveland, 168 Mich. 168, this court said:
“Estoppel is a bar which precludes a person from denying the truth of a fact which has in contemplation of law become settled by the act of the party himself, express or implied. If one’s conduct induces another to believe in the existence of certain facts, and the other acts thereon to his prejudice, the former is estopped to deny that the state of facts does in truth exist. 16 Cyc. p. 680, and cases there cited. Bigelow on Estoppel (5th Ed.), p. 570.”
The rights of the defendant in this suit were in no way affected by such action of plaintiff. In the case here presented, the rights of third parties are in no way involved.
The judgment is affirmed.