Busch v. Wilcox
| Decision Date | 05 December 1890 |
| Citation | 47 N.W. 328,82 Mich. 336 |
| Court | Michigan Supreme Court |
| Parties | BUSCH v. WILCOX. |
Affirming 46 N.W. 940.
On rehearing. For former report, see 46 N.W. 940.
An opinion was handed down in this case on the 10th day of October, ult., and the defendant has moved for a rehearing based upon error of fact and law. The defendant in person has furnished reasons for rehearing in which he states there are several misapprehensions and misstatements of facts as proved upon the trial.
And first he calls attention to the purchase price paid by him for the legal title to the lands purchased by him from Remick. He states that the record shows that he paid Remick $4,000, and allowed McKay one-third of the net profits to be made on the purchase for his interest, and also paid him $1,000 cash bonus in addition. In this the defendant is correct; but, as the amount paid by defendant for the land was not involved in the issue, it was not stated in the opinion.
2. He shows that the court was in error in stating "Remick had an estimate of the pine timber on the lands made by Robinson & Flynn, which showed that the land contained about 4,000,000 feet of pine." The record shows both from the testimony of Mr. Hall and of Mr. Wilcox that the Robinson & Flynn estimate was made after the purchase by Mr. Wilcox. Mr Wilcox testifies that when he purchased he interviewed both McKay and Remick, and each assured him that the land was good for 5,000,000, and a few months after he bought he employed Robinson & Flynn to estimate the pine, and they did so. He testifies: "I told them I had purchased that land, and would like to know what there was as near as I could." This estimate was the one which Hall had with him when he had his interviews with Busch, and showed that their estimate was 3,770,000 feet. This estimate he got from Wilcox. Hall also had Van Riper make an estimate, and that showed the quantity of pine to be 5,162,000 feet. It is freely admitted that the court was laboring under a misapprehension when it stated in the opinion that "Remick had an estimate of the pine timber made by Robinson & Flynn which showed that the land contained about 4,000,000 feet of pine." Mr. Wilcox contends that "the effect of these misapprehensions of the facts is prejudicial to the good faith of the initial purchase having been made on the basis of 5,000,000 feet and the subsequent holding and dealing with the lands on this basis, supported by Van Riper's estimate subsequently made." "It is submitted," says Mr. Wilcox "that, even if these misstatements of fact do not materially affect the final judgment of this court, it is due to the defendant that they should appear correctly in the opinion and published report." We think the defendant is entitled to have it appear that when he purchased he was told by McKay and Remick that the land was good for 5,000,000 feet of pine; and that he relied upon such statement; and that after he purchased he had a desire to know what there was on the land, and procured Robinson & Flynn to estimate the pine; and that they did so; and that their estimate showed that there was 3,770,000 feet of pine upon the land. We think these facts can only have a bearing upon the issue when considered in connection with what was said and done, and the use made of this estimate by Hall in his interviews with Busch.
The third reason assigned for a rehearing by the defendant is mainly an argument upon the facts, and if addressed to the jury, or if we could decide upon the facts, would not be without great weight. But we cannot reverse a case upon disputed facts, however much we might feel that they impressed us differently from what they did the jury. Now, we might infer and find from the testimony that Busch relied exclusively upon the guaranty of Mr. Hall as to the quantity of pine and of Van Riper's estimate. The testimony is very strong in that direction. But Busch also testifies that he relied upon the representations made by Mr. Hall, and we cannot say that he did not rely upon both. It does not seem to us that, because he would not have entered into the contract without Hall's guaranty, such fact was a waiver of his right to rely upon the prior representations made by Hall, whatever may have been the value of such verbal guaranty in a legal point of view.
The defendant Wilcox further insists that, "the contract having been made and sent to Wilcox for his adoption without any intimation of there being anything outside of the written contract to which he was committed by signing it, Wilcox at least was entitled to be apprised of these facts immediately upon his coming personally into his relations of principal with Busch." In other words, if we understand the proposition correctly, it is asserted that when one enters into a contract with a self-constituted agent who has no authority to act for another, and the person for whom the self-constituted agent assumes to act adopts the contract so made in his name and behalf, thereupon it becomes the duty of the person so treating with the self-constituted agent to immediately notify or inform the principal of the instrumentalities made use of by such self-constituted agent to induce him to enter into the contract. In a case where such contracting party is free from fraud or collusion, and acts in good faith, we do not perceive that such duty is imposed upon him. He has no right to presume that the self-constituted agent has misrepresented facts to him, or that he intends to defraud him. On the contrary, we think it is the duty of the principal, or the person who becomes so by adopting the contract made in his name and for him, to make all needed...
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