Docket No. 73 | Mich. | Nov 18, 1902
(after stating the facts). Several questions of fact and law are presented, but if the court was correct in its finding of fact, and the application of the law thereto, as to the disposal of this fund, it becomes unnecessary to dispose of the other questions. The evidence on the part of the defendants is that, after the mortgage was executed by the mortgagor, the trust accepted by complainant, and the mortgage filed, it was then presented to Mr. Maltz, and he was requested to accept; that he declined to accept so long as complainant was preferred
Two objections are raised to the legality of this parol agreement: (1) That it is void under the statute of frauds, which provides that ‘' every special promise to answer for the debt, default, or misdoings of another person” must be in writing. 3 Comp. Laws, § 9515. Wolff made no promise to answer for the debt of Jasspou. The debt was to be paid out of the goods mortgaged. Wolff was not by the agreement made liable for any portion of the debt. The statute does not apply. (2) It is urged that the parol agreement contravenes the writing, and that this the law does not permit. Counsel for complainant cite in support of this contention Unger v. Smith, 44 Mich. 22" court="Mich." date_filed="1880-06-11" href="https://app.midpage.ai/document/unger-v-smith-7929906?utm_source=webapp" opinion_id="7929906">44 Mich. 22 (5 N. W. 1069); Putnam v. Russell, 86 Mich. 389" court="Mich." date_filed="1891-07-03" href="https://app.midpage.ai/document/putnam-v-russell-7935320?utm_source=webapp" opinion_id="7935320">86 Mich. 389 (49 N.W. 147" court="Mich." date_filed="1891-07-03" href="https://app.midpage.ai/document/furman-v-furman-7935321?utm_source=webapp" opinion_id="7935321">49 N. W. 147). In those cases it was sought to vary the express agreement of deeds by evidence of a parol agreement contradicting them. This is not a case, within those decisions, of an attempt to change a written agreement by a previous parol one. In such case all parol agreements become merged in the written instrument. In this case the mortgage had been executed, had been accepted by complainant, and had been filed. It became, therefore, an executed instrument, beyond the power of the mortgagor to recall. Complainant had accepted the trust, and was therefore in law entitled to carry it out, even though Mr. Maltz should decline to accept. All parties were anxious to secure Mr. Maltz’s acceptance and his services. To accomplish this they agreed that the claim of the bank should share equally in the fund with
The decree is affirmed, with costs.