Bailey v. Jones

• Decision Date: 04 June 1928
• Docket Number: No. 134.,134.
• Citation: 219 N.W. 629,243 Mich. 159
• Parties: BAILEY v. JONES.
• Court: Michigan Supreme Court

243 Mich. 159

219 N.W. 629

BAILEY

v.JONES.

No. 134.

Supreme Court of Michigan.

June 4, 1928.

Appeal from Circuit Court, Wayne County, in Chancery; George W. Sample, Judge.

Action by Rufus Arthur Bailey, as trustee, against Jennie Wright Jones, trustee. Decree for the plaintiff, and the defendant appeals. Affirmed.

Argued before the Entire Bench.Wm. Henry Gallagher, of Detroit (Edward J. Fallon and Edmund B. Sullivan, both of Detroit, of counsel), for appellant.

S. Homer Ferguson, of Detroit, for plaintiff and appellee.

Stevenson, Butzel, Eaman & Long, of Detroit, for appellee Harsha.

FEAD, C. J.

Plaintiff Bailey is an architect. Defendant had a three-story brick residence a half century old. Plaintiff solicited her for employment to convert the house into an apartment building. After many negotiations, during which defendant had an attorney by her side, a written contract was made on March 19, 1924, by which plaintiff was employed at a fee of 10 per cent. of the cost, ‘as architect and superintendent, you to furnish all necessary plans and specifications and to supervise the construction of the building and see to it that the labor and materials are all in accordance with the plans and specifications and contracts.’ Plaintiff also agreed to, and did, assist in the financing of the project by mortgages and his compensation was to come from the proceeds of the loans. Bailey secured contractors willing to wait for their pay. Contracts for the work were drafted or approved by defendant's attorney and made between the contractors and defendant. Tenants of defendant took possession and began to pay rent January 1, 1925.

A first mortgage of $45,000 was negotiated on January 2, 1925. On January 15, 1925, defendant gave Bailey, as trustee, a second mortgage for $38,650.22, in trust to secure payment of the sums owing to the contractors, Bailey and defendant's attorney. The mortgage was made payable 90 days after date, to secure notes given to the cestui que trustent in the amount of their claims. Most of the notes were renewed from time to time, Bailey having renewals on July 15, 1925.

This action was commenced January 8, 1926, to foreclose the second mortgage. Defendant claimed damages for defective workmanship and delay in completing the building.

The claim against some of the contractors was that their work was not in accord with the plans and specifications. Their work was supervised and inspected during the course of construction and approved on completion by Bailey, who was then defendant's agent with authority, under the contracts, to reject materials and workmanship. His approval, unless fraudulent, was an acceptance of their work. 9 C. J. 796, 797.

The claim against Bailey is that he did not complete the building at the agreed time and did not properly supervise the construction. Both before and after the contract was made, the parties discussed the time for completion. No mention of it was made in Bailey's contract nor in those of the contractors. Aside from application of the rule against varying written contracts by parol, the talk about time of completion was, obviously, an estimate and not contractual.

In several respects, the work was not well done. All the major defects had developed and were known to defendant and her attorney at the time the mortgage was given. Some minor ones appeared afterward. A subsequently discovered major defect claimed was that the new construction had broken from the old building because of a failure to properly tie them together. The testimony did not show that Bailey's plans in that respect were not in accord with recognized architectural practice. No defects traceable to improper execution of his plans were shown to have been discovered after the renewal of...