Doyle v. Mizner
| Decision Date | 29 November 1879 |
| Citation | 40 Mich. 160 |
| Court | Michigan Supreme Court |
| Parties | Edward W. Doyle v. Thomas W. Mizner, William Gray and Edward E. Kane |
Judgment reversed with costs, and a new trial granted.
Moore & Moore and Griffin & Dickinson for plaintiff in error.
Ed. E Kane, Moore, Canfield & Warner and Alfred Russell for defendants in error. Fraud must be established by convincing proof (Buck v. Sherman, 2 Doug. [Mich.], 176; Orr v. Lacey id., 230; Hubbard v. Taylor, 5 Mich. 155; Baldwin v. Buckland, 11 Mich. 389), and it only renders a transaction voidable at the option of the defrauded party, Galloway v. Holmes, 1 Doug. [Mich.], 330; Jewett v. Petit, 4 Mich. 508; title passes even by a fraudulent transfer, and continues in the transferee until rescission, Stevenson v. Newnham, 4 J. Scott, 303: 1 Smith's Lead. Cas., 666, and unnecessary delay bars the right of rescission, Street v. Dow, Har. Ch., 428; De Armand v. Phillips, Walk. Ch., 186; Wilbur v. Flood, 16 Mich. 40; Martin v. Ash, 20 Mich. 166; Schanck v. Morris, 7 Robert. 659. A written instrument must be conclusively presumed to contain all terms and conditions agreed on, and merges any contemporaneous understanding Adair v. Adair, 5 Mich. 204; Holmes v. Hall, 8 Mich. 66; Martin v. Hamlin, 18 Mich. 354; Vanderkarr v. Thompson, 19 Mich. 82; Beers v. Beers, 22 Mich. 42. A bill of sale that purports on its face to be an absolute conveyance, and to have been signed, sealed and delivered, cannot be shown by parol to have been an escrow merely, Ward v. Lewis, 4 Pick. 520; Pym v. Campbell, 6 El. & Bl., 374; there can be no delivery in escrow to a grantee; he acquires absolute title on becoming legally possessed of the conveyance, Dawson v. Hall, 2 Mich. 390; Ward v. Lewis, 4 Pick. 520; so also where delivery is merely to await lapse of time or some other contingency, but is not conditional, Hathaway v. Payne, 34 N.Y. 92; Foster v. Mansfield, 3 Metc. 414; Wheelwright v. Wheelwright, 2 Mass. 447; Bushell v. Pasmore, 6 Mod. 217. It is sufficient delivery if a vendee takes a lease of a building where the goods bought are stored, Shumway v. Rutter, 8 Pick. 443, or takes possession of a loft where they are stored, Parks v. Hall, 2 Pick. 213; slight evidence of delivery is sufficient, Ingalls v. Herrick, 108 Mass. 351; Hardy v. Potter, 10 Gray 90; Benj. on Sales, 593-4, note n; symbolical delivery may be enough where the goods are ponderous, id., 608; Manton v. Moore, 7 Durnf. & East., 67.
Doyle brought suit for the conversion of a stock of goods, filing a declaration with two counts, the first of which was special, and the second in trover.
The first count averred ownership and possession by plaintiff on the 10th of April 1875, and a fraudulent taking possession and conversion by defendants on that day. Intermediate between these allegations was a recital of facts which were in substance that Mizner and Gray with an express fraudulent intent induced plaintiff to enter into an agreement to form a corporation to be known as the Detroit Chemical Works, with a capital stock of $ 50,000 in 2,000 shares of $ 25 each, they (M. and G.) to have 160 shares each for their services and expenses in organizing it, and to pay to the corporation $ 36,000 in cash and to receive therefor 1,440 shares. Plaintiff was to transfer to the corporation his goods and receive 400 shares therefor; that the other parties pretended to organize and fraudulently represented that they would pay or cause to be paid to the corporation said $ 36,000 as soon as plaintiff had executed a bill of sale to the corporation, and that plaintiff joined with them in executing such bill of sale; that Mizner and Gray had no interest in the property and never paid anything to the corporation. It then charges a fraudulent agreement between Kane, Mizner and Gray to obtain the execution of a pretended chattel mortgage from Mizner and Gray as president and secretary, and that Kane fraudulently took possession thereunder, and that the parties fraudulently converted the property.
On the trial plaintiff proved by his own testimony the forcible taking possession by Kane of the property then in plaintiff's possession. He further testified to a series of transactions for the organization of the company and the execution by himself, Gray and Mizner to the company of a bill of sale, which he swore he delivered to Mizner to be held conditionally and not delivered to the company until the money was paid in and he was paid, and to be used by Mizner for no other purpose than to show intended stockholders what amount of goods was to be turned in as capital. There was other testimony which is claimed by defendants to have shown a want of interest in plaintiff and to controvert his right and to have...
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...an agent or officer outside of his powers, or where he is not acting officially, (Michigan Paneling Co. v. Parsell, 38 Mich. 475; Doyle v. Mizner, 40 Mich. 160,) and is true as to officers and directors individually, (Peek v. Novelty Works, 29 Mich. 313; Finley Shoe & Leather Co. v. Kurtz, ......
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...against whom the directed verdict was sought. Don McCullagh, Inc. v. Dimitroff (1950), 327 Mich. 656, 42 N.W.2d 775; Doyle v. Mizner (1879), 40 Mich. 160. All parties to this appeal agree with the trial court that what is a 'reasonable time' differs according to the circumstances of the par......
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Doyle v. Mizner
...than to hold that Kane was not on any better footing than his co-defendants, and that Doyle's case, if true, made out a gross fraud. 40 Mich. 160. On a new trial whole facts were again discussed, and a judgment rendered for defendants, of which Doyle again complains. The case as now present......