Burnett v. King

• Decision Date: 02 December 1930
• Docket Number: No. 58.,58.
• Citation: 233 N.W. 221,252 Mich. 189
• Parties: BURNETT v. KING et al.
• Court: Michigan Supreme Court

252 Mich. 189

233 N.W. 221

BURNETT

v.KING et al.

No. 58.

Supreme Court of Michigan.

Dec. 2, 1930.

Error to Circuit Court, Allegan County; Fred T. Miles, Judge.

Action by Nora Burnett against James K. King and another. Judgment for plaintiff, and defendant brings error.

Affirmed.

Argued before the Entire Bench.Perle L. Fouch, of Allegan, and Harry C. Howard, of Kalamazoo, for appellants.

Leo W. Hoffman and Clare E. Hoffman, both of Allegan (Carl E. Hoffman, of Holland, of counsel), for appellee.

FEAD, J.

James King, husband of plaintiff and son of defendants, died June 24, 1927, leaving to his wife a land contract on which the purchase price was $5,000, of which $1,000 had been paid. The contract ran to plaintiff and her husband by the entireties. James owed his uncle $500 on a note signed jointly with plaintiff, $1,300 on a note indorsed by his mother, and, aside from an outlawed note of $3,265, his mother claimed he owed her $1,000. He left no estate for creditors. In August plaintiff paid another $1,000 and interest on the land contract. Before his death, James had advised plaintiff to transfer the contract to his parents to handle for her, as she did not understand business transactions. In October she assigned the contract to defendant Mrs. King. She claims she made the assignment because defendants represented to her that the transfer was necessary in order to close the estate and that they would sell the place and give her the proceeds, out of which she would pay the $500 note. Defendants claimed the deal was made with Mrs. King alone, that plaintiff said she had been unable to sell the property and wanted to be relieved of its obligations, she proposed the assignment on condition that Mrs. King pay the $500 and the $1,300 notes, and that the transfer was absolute, without understanding for accounting of any part of the proceeds. In February, 1928, the property was sold for $7,000 net. Mrs. King paid the $500 and produced the $1,300 note marked paid, and also paid $3,000 balance on the contract. Plaintiff had verdict of jury and judgment against both defendants for $3,430, the full net sale price less the balance on the contract and the $500 note and interest.

The declaration was in assumpsit, set up the facts, and waived fraud. On the trial, plaintiff moved to add a count in assumpsit on the same facts. Such amendment, if necessary, was proper and could be allowed in this court to sustain the judgment. Circuit Court Rule 22(4)...