Danaher v. Estate of Ward

• Decision Date: 28 January 1879
• Citation: 40 Mich. 300
• Court: Michigan Supreme Court
• Parties: Patrick M. Danaher v. The estate of Eber B. Ward, deceased

40 Mich. 300

Patrick M. Danaher v. The estate of Eber B. Ward, deceased

Supreme Court of Michigan

January 28, 1879

Submitted January 16, 1879

Error to Wayne. Submitted Jan. 16. Decided Jan. 28.

Judgment reversed with costs and the case remanded for a new trial.

Walker & Kent for plaintiff in error. Conclusions of law, only and not of fact, can be drawn from a referee's finding as from a special verdict, People v. Wells, 8 Mich 104; Burk v. Webb, 32 Mich. 173; Denis v. Saunders, 36 Mich. 369, The fact that one party understood that a claim was settled would not be admissible in his favor unless his understanding had been communicated to the other at the time of the supposed settlement (Taft v. Dickinson, 6 Allen 553), and where both are fully prepared to look out for their own interests, one is not bound to correct the careless mistakes of the other. Story on Cont., § 643; Smith v. Hughes, L.R., 7 Q.B. 597; Mitchell v. McDougall, 62 Ill. 498; Pearce v. Carter, 3 Houst. [Del.], 385.

C. I. Walker and D. Darwin Hughes for defendant in error. One is bound by a settlement which he allows the other party to suppose has been made (Truesdail v. Ward, 24 Mich. 117; 2 Kent's Com., 557; 2 Pars. Cont, 498; Potter v. O. & L. M. I. Co., 5 Hill. 150; Barlow v. Scott, 24 N.Y. 40) and is estopped from contesting it if his conduct has misled the other to his injury, Bigelow on Estoppel, 533-6; Freeman v. Cooke, 2 Exch. 654; Cornish v. Abington, 4 H. & N., 549; M. & T. Bank v. Hazard, 30 N.Y. 226; Cont. Bk. v. N. Bk., 50 N.Y. 575; Wright v. Willis, 2 Allen 193; Wilber v. Goodrich, 34 Mich. 84; Hayes v. Livingston, 34 Mich. 384.

Campbell, C. J. The other Justices concurred.

OPINION

Campbell, C. J.

Danaher having had a claim disallowed by the commissioners on Captain Ward's estate, appealed to the Wayne circuit, where it was again disallowed under the finding of a referee. Error is brought to this court on the ground that the facts found do not support the judgment.

The claim is for a balance due on a contract whereby Danaher was to get out a large amount of lumber for Captain Ward on his lands. It appears from the finding of the referee that an important part of the credit claimed for the estate in reduction was for the price of logs purchased by Danaher, he claiming that he bought the logs ready cut for the price agreed on, and the representatives of the estate claiming that he was to pay the price named for the stumpage, which would require a rejection of his claim for cutting that amount of logs. This dispute the referee decided against the estate, and found a balance due on that account of $ 25,996.76, with interest from July 1st, 1871. It is urged that this fact cannot be said to have been found, because while the referee said he felt bound to find it by a preponderance of evidence, he was not prepared to say he was entirely convinced that such was the actual fact. We cannot doubt that all he meant to say was that he thought the case not as clear as it might be, but that the evidence preponderated in favor of Danaher, and he felt bound--as he was certainly legally bound--to decide according to the weight of evidence.

Having settled this as the balance due on this claim, he then proceeded to consider certain matters which it was insisted for the estate had put an end to the debt by other arrangements.

There were four suits pending on the 16th of May, 1873, in which Danaher was interested, alone or with his partner Mr Melendy. There was an action of assumpsit in their favor against Captain Ward, and an action of trespass in his name against them. There was an action of trover by Ward against Danaher, and an action of assumpsit by Milton D. Ward, his son, against Danaher and Melendy. These were independent of the present controversy. On that day Danaher met Captain Ward at Ludington, Danaher having present Judge White as his counsel, and Captain Ward having on his side two counsel and two agents who were not lawyers. It is found that these four controversies were then settled. Whether the present controversy was also included in those arrangements was disputed, and the question is whether the finding of the referee determines what was done. We think it is entirely defective on this point. It does not find there was any settlement. While the referee says the controversy before him turned on this point, he sets forth no more than a series of facts bearing upon it, and comes to no distinct conclusion. It is claimed, however, that the facts he states lead to that result. If such is their necessary meaning, perhaps this would be so, but we think th...