Bigham v. Winnick

• Decision Date: 05 June 1939
• Docket Number: No. 47.,47.
• Citation: 288 Mich. 620,286 N.W. 102
• Parties: BIGHAM et al. v. WINNICK et al.
• Court: Michigan Supreme Court

288 Mich. 620

286 N.W. 102

BIGHAM et al.

v.WINNICK et al.

No. 47.

Supreme Court of Michigan.

June 5, 1939.

Suit by Ray C. Bigham and others against Ida Winnick, George G. Nagos, and others to enjoin the defendants from selling intoxicating liquors and to enjoin the Liquor Control Commission from issuing any license to Ida Winnick. From a decree enjoining the Liquor Control Commission from issuing any license to Ida Winnick and enjoining her from operating any business for the sale of beer, Ida Winnick appeals.

Decree reversed and bill of complaint dismissed.

Appeal from Circuit Court, Wayne County, in Chancery; Mark D. Taylor, judge.

Argued before the Entire Bench.

Louis Glasier, of Detroit (Friedman, Meyers & Keys and Joseph H. Jackier, all of Detroit, of counsel), for appellant.

William Cohen and Morris Luskin, both of Detroit, for appellees.

McALLISTER, Justice.

Russell Woods Subdivision in Detroit is subject to the following restriction: ‘The sale of intoxicating liquors in any form shall not be permitted on any lot in this subdivision, except that a druggist may sell the same for medicinal purposes in buildings constructed on Livernois Road.'

The Russell Woods Civic Association is composed of owners of real estate in the subdivision and its purpose, among others, is to carry out the enforcement of the restrictions. Plaintiffs include numerous lot owners as well as the association.

In 1932, defendant, Ida Winnick, leased for a three-year period a restaurant in the business district of the subdivision, located at the corner of Livernois and Tyler Avenues. On May 1, 1933, after the prohibition laws were repealed, defendant applied for and received from the liquor control commission a license to sell beer. Large signs were erected on the building and in an adjoining parking lot advertising the sale of beer at defendants' premises. The business prospered, and during the same year defendant purchased the property and made extensive improvements. Up to the beginning of 1936, defendant had invested approximately $22,000 in the property. During all of this time beer was being sold and advertisements to this effect were prominently displayed on the premises. No complaints have been made of the manner in which the business has been conducted.

In the spring of 1936, the liquor control commission notified defendant that the restriction had been brought to its attention and that it would not therefore issue a new license to defendant. However, in April, 1936, a hearing on her application for a license was granted to defendant by the commission. Plaintiffs, who had corresponded with the commission with regard to the restriction, were notified of the hearing, and thereafter defendant was granted a further license for the year 1936. In 1937, the commission notified plaintiffs that another hearing would be held on defendants' application for a license that year, and that unless plaintiffs instituted proceedings to enforce the restriction within 60 days from such notice, a license would be granted. Plaintiffs thereupon filed their bill of complaint against three parties, including appellant herein, who had been granted beer licenses, as well as against the liquor control commission, asking that defendants be enjoined from selling intoxicating liquors; that the commission be ordered to revoke licenses already granted, and be enjoined from issuing further licenses. The commission filed an answer disclaiming any interest in the suit, and leaving to the determination of the court the question of whether such licenses should be issued. Two of the defendants were defaulted for failure to answer. Defendant, Ida Winnick, answered, raising the defenses of waiver, estoppel...