Cohane v. Eston

• Decision Date: 03 October 1927
• Docket Number: No. 103,Oct. Term.,103
• Parties: COHANE v. ESTON et al.
• Court: Michigan Supreme Court

240 Mich. 234

215 N.W. 524

COHANE

v.ESTON et al.

No. 103, Oct. Term.

Supreme Court of Michigan.

Oct. 3, 1927.

Appeal from Circuit Court, Wayne County, in Chancery; Willis B. Perkins, Special Judge.

Suit by Louis S. Cohane against Louis M. Eston and another, in which defendant named filed a cross-complaint. From the decree, defendant named appeals. Affirmed.

Argued before the Entire Bench.

Harold Goodman, of Lansing, for appellant.

Louis Starfield Cohane and Regene Freund Cohane, both of Detroit, for appellee Cohane.

STEERE, J.

This bill of complaint was filed to remove a cloud upon the title of plaintiff, Cohane, to a residential lot in Greenacres subdivision, city of Detroit. The case was heard in open court on pleadings and proofs. A decree was entered as prayed for by plaintiff. Defendant and cross-plaintiff Eston brings the case to this court by appeal, asking review and reversal.

Mrs. Ethel W. Bolz, of Warren, Ohio, was owner of a land contract, dated December 30, 1918, by which she had purchased the lot which is the subject of this litigation at a total price of $2,200. Defendants Cohl and Eston were partners engaged in the real estate business in Detroit. Mrs. Bolz had listed the lot with this firm for sale at a price of $3,500. On April 21, 1925, at their suggestion and offer, Mrs. Bolz agreed to sell the property for $3,150 to a proposed purchaser they had found, named Devine, who was an employee in their office, and pay them a commission of $150, which would make her net price $3,000. Cohl at that time sent Mrs. Bolz his personal check for $50. It is indicated this payment was then recognized and treated as made from partnership funds. It was all the money ever put into the transaction by or for the partnership. Mrs. Bolz was not advised then or later that Devine was an employee of Cohl & Eston, and his figurehead function in the deal is undisputed. He testified that he signed the purchase agreement at Cohl's request, saying he ‘had not paid anything in the first place. I had nothing to do with it, except that I was buying it for Cohl & Eston.’ They both then tried to sell the property at an advanced price and were unsuccessful. Not very long thereafter acute disagreements between them developed over their partnership affairs leading to a violent quarrel which terminated in an assault and battery by Eston on Cohl to the latter's temporary undoing, and their friendship ceased with a jolt. On June 6, 1925, with the aid of an intermediary, they signed articles of dissolution of their partnership, which, amongst other things, provided touching this matter:

‘It is further agreed between the parties hereto that the transaction involving lot 216 of Greenacres subdivision, in which the partnership has made a deposit of $50, shall remain partnership property and all moneys derived from said transaction shall be divided equally between the parties hereto.’

After this Cohl tried to sell the property and says he was unable to do so. Eston said he tried to sell it before their quarrel, but not after. A reputable attorney in Detroit testified that he was friendly to both of them and acted for both as an intermediary in an endeavor to get them together; that he was authorized by Cohl to make an offer to Eston in this lot transaction, saying:

‘Approximately one month after the dissolution, which date appears to be June 16th, I told Mr. Eston that I had been told by Mr. Cohl to tell him that because of their relationship he did not care particularly about being interested with him in lot 216 as well as the other lot, but particularly with reference to lot 216; that he wanted to disassociate himself entirely from Mr. Eston. He wanted Mr. Eston to give him $25 and take over the entire interest in lot 216, or he would be willing to give Mr. Eston $25 and take over from Eston all of the interest.

‘Q. What was the answer? A. His answer was no.’

Eston denied any such conversation.

Cohl unsuccessfully endeavored for a time to sell the property, while Mrs. Bolz and her husband in ignorance of the situation were pressing the firm by correspondence to close the deal which she had by writing agreed to, complaining of the delay. Cohl finally called plaintiff's attention to this lot and advised him to buy it on the net price basis of $3,000 to Mrs. Bolz, less the balance unpaid on the contract, for which she had authorized them to sell it, asking no commission, but that the $50 of his own money which he claimed to have paid on the contract for the firm should be paid to him.

In September, 1926, Mrs. Bolz's husband came to Detroit authorized to close the deal for her interest in the lot on their previously agreed terms, bringing with him his wife's land contract and an assignment of it executed by her but left in blank as to the assignee, and the...