31 Mich. 36 | Mich. | 1875
The bill in this case was filed by Clarinda L. Webster, now deceased, to rescind the sale of certain mill property which was sold by her, through her husband's agency, to Bailey, the defendant, in exchange for a mortgage given by one Davis to one Freeman, on property in Saginaw county* for two thousand five hundred dollars, and assigned by
After Mrs. Webster’s death an order was made under the statute for the revival of the suit, in the names of the administrator and heir. A paper was then filed containing amendments to the bill, which consisted in a statement of Mrs. Webster’s.death and the devolution of her estate, and averments that- defendant withholds from them their rights, and a prayer for relief, corresponding to the original prayer, except that it is in favor of the new parties.
It is objected that these amendments were improper, because introducing matters which have occurred since the bill was filed.
.They are, in fact, the substance of what would be inserted in a bill of revivor; and, this being so, they are neither more nor less than what was already implied by the order of revival; which, by dispensing with the necessity of a bill, compels the court to read the record in favor of the new parties, as if all essential to such a bill was before it in another form.
These amendments introduced no new facts upon the-merits, and. were entirely unnecessary. They are of no consequence, and should be disregarded. They can do no possible harm to the defendant, who has taken no steps to get rid of them, and is no worse off with than without them.
The controversy chiefly turns on the point whether defendant’s course in obtaining the property of Mrs. Webster was such as to entitle her to complain of the worthlessness of the security which she took in exchange for it, or whether she took this entirely at her own risk.
The whole bargain was made with her husband, and it is not disputed that she is in the same position as if she had conducted the business in person.
The belief on which the husband took the mortgage and accompanying notes, which were not then due, was, that
We are also satisfied from the testimony, that the mortgagor was not responsible, nor the land good security, and that Freeman knew this, or had abundant reason to know it. But we are not satisfied that defendant knew this when he took the assignment, and we are also inclined to the belief that he gave what was full value, and was himself defrauded.
It is apparent, however, that he did not take this without deliberation and personal observation, — that he went to the place where the land was, and made inquiry where he chose to inquire, and examined so much of the land as he thought -necessary, and did not take the assignment until1 he ha!d thus inquired and examined, although he was probably misled. This becomes very material, in considering what the probabilities are, under the conflict of testimony upon the nature and extent of his representations. Complainants’ case is fully made out if we accept the testimony of Osee Webster. That on the part of the defendant represents the transactions attending the bargain with Webster differently. But some facts are plain and not open to difference.
Defendant had sold out his entire stock of boots and shoes, and had taken these notes and the mortgage as absolute payment for about one-half of the price.' This was in June, 1870. In August, 1870, he began to negotiate through one James Potter, who received from Osee Webster an offer to sell the mill property of complainant for $2,500. Potter informed Webster that defendant had the notes and mortgage in question, which he wanted to use in the purchase, and it was understood between them that if a bargain were made they should be used,
Mr. Potter does not detail his own previous instructions from Bailey; neither does Mr. Bailey. Both devote more time to the recital of what took place at the final interview with Bailey. But there is no doubt that the terms of the sale were all agreed on before this between Potter and Webster, though the agreement itself was not then made.
Bailey and Potter came over soon afterwards, and the agreement was fixed upon and a day .appointed for having the papers passed. ' A fact of some importance appears, that during all this time the papers were not produced, and were in the hands of a third person, apparently as col
As Webster relates it, Bailey’s representations were distinct upon the property and the responsibility of the mortgagor. He says Bailey said they had come to complete the bargain, and on referring to what had taken place with Potter, Webster said he had told Potter if the papers were good and would be paid without trouble he would take them. Whereupon Bailey said they were good, and made the further statements referred to. That Bailey agreed to pay down five hundred dollars, to be repaid out of the mortgage. Webster further states that a day was fixed for exchanging the papers at Tecumseh, when Bailey excused himself for not having been able to collect the money for the cash payment, and upon further assurances the trade was closed by accepting the mortgage without any sum down.
Bailey admits in his answer he said he would make a payment down if he should receive some money which he expected, but did not positively promise any, but that he did excuse himself at the final meeting, and said Webster need not feel under any obligation to trade unless he chose to. Upon this Webster’s statement seems corroborated by the answer, as there would have been no reason for throwing up the bargain if the cash payment had not been one of the terms agreed on. In his testimony Bailey states the offer to give up the bargain a little differently, as if he himself was not anxious to conclude it, which was evidently not true; and if the suggestion was made as he there puts it, there would be room for a stronger inference of a directly fraudulent intent in stimulating Webster to a sale than appears elsewhere.
As to the representations made by Bailey concerning
There is much more testimony which may have some bearing, and a good deal of it refers to subsequent conduct of Bailey’s which may, perhaps, by itself be susceptible, .of different constructions, according to the view taken of the previous dealings. Upon a careful review of the facts, we do not think the testimony as conflicting as was claimed, on the argument. It is, we think, quite evident that Webster was led to believe that Bailey had taken sufficient measures to assure himself that the mortgage was good,: and Davis responsible. From the defendant’s own testimony it is impossible to believe that the suggestion that Webster should go and look at the land was put to ;him in such a way as to make him suppose it was at all important; while the penalty in casé he was satisfied with th,e. land, was calculated to dissuade him from going, and to. confirm him in the belief it would be useless. There is no pretense that his attention was called to any possible doubt of Freeman’s veracity or Davis’s solvency, and the matter was narrowed down to a question of judgment.
Such a final disposal of the matter makes it evident that however guarded Bailey may have been, or may suppose himself to have been, in his language, Webster was not led to believe he ran any risks, except in the single matter of Bailey’s knowledge of land. His whole testimony is consistent with this, and such a proposition as Bailey mentions would be almost trifling on either theory. If Webster is accurate, it might easily have passed unnoticed or unremembered, as a proposition of no importance whatever. If Bailey’s narrative is correct, and the proposition was serious, it would inevitably tend to assure Webster that there was nothing else in doubt, and if so, this was not worth considering.
The only charitable view we can take of the case, and we are disposed to believe it the true one, is, that Bailey thought he had good securities, and so represented them to Webster; and that while he may have given the history of them, he did not do so in such a manner as to give Webster to understand he was making any reservation or imposing any risk or responsibility on the party with whom he was dealing. It is impossible to account for Webster’s conduct, or for much of Bailey’s, except on that idea. The effect of the false impressions so created is in equity equivalent to that of fraud, whether designedly fraudulent or honestly mistaken.
We think the decree below was correct, and it must be affirmed, with costs. We have not overlooked the collateral questions, and think the conclusion of the circuit court as just as any we could deduce from the facts appearing in evidence on those matters.