Farwell v. Bigelow

• Decision Date: 06 April 1897
• Citation: 70 N.W. 579,112 Mich. 285
• Court: Michigan Supreme Court
• Parties: FARWELL v. BIGELOW ET AL.

70 N.W. 579

112 Mich. 285

FARWELL v. BIGELOW ET AL.

Supreme Court of Michigan

April 6, 1897

Appeal from circuit court, Wayne county, in chancery; Edward D Kinne, Judge.

Action to foreclose a mortgage by Jesse H. Farwell against Albert E Bigelow and Charles A. Bigelow, impleaded with Calvin A. Cook and Robert Rea. Decree for complainant, from which the Bigelows appeal. Affirmed.

James H. Pound, for appellants.

Chamberlain & Guise, for appellee.

MOORE J.

Prior to September, 1891, James A. Cook was engaged in the business of paving in Detroit. The defendant Calvin A. Cook was desirous that his contracts for paving should be successfully consummated. Mr. Farwell was possessed of a wide and varied experience in paving contracts. The two Cooks on June 21 1891, made a written agreement with Mr. Farwell by which he undertook to aid them in getting money, by indorsing their paper for an amount not exceeding $24,000, to enable them to carry on their contracts; and he also agreed to give James A Cook the benefit of his advice and experience, for which Farwell was to be paid $3,000. On the same day, to secure Mr. Farwell, certain paving contracts were assigned to him. A similar contract was made September 29, 1891. On the last-named day, to further secure Mr. Farwell, a mortgage was given to him by Calvin A. Cook upon real estate in Detroit and in Montmorency and Otsego counties. This mortgage was recorded the same day in Wayne county, and in the following month in the counties of Montmorency and Otsego. The mortgage recites that Mr. Farwell has indorsed certain papers, and refers to the agreement already mentioned, and that other indorsements are to be made and similar agreements are to be entered into. The condition of the mortgage is as follows "Provided, always, and these presents are upon the express conditions, that if the party of the first part shall and does well and truly indemnify and save harmless the said party of the second part of and from all damage, loss, or liability arising from or connected with his indorsement of said notes for five thousand ($5,000) dollars and four thousand ($4,000) dollars, respectively, hereinabove referred to, or of any note or notes given in renewal of, or in the place or stead of, the same; and if said Calvin A. Cook and James A. Cook shall well and faithfully keep and perform all the covenants and agreements to be kept and performed by them under the terms of said contract or agreement entered into between the said Jesse H. Farwell and the said James A. Cook and Calvin A. Cook bearing date the twenty-ninth day of June, A. D. 1891; and if the said Calvin A. Cook shall faithfully keep and perform all the covenants and agreements to be kept and performed by him under the terms of said certain contract or agreement entered into between the said Jesse H. Farwell and the said Calvin A. Cook bearing date the twenty-ninth day of September, A. D. 1891, and shall indemnify and save harmless the said Jesse H. Farwell from all loss or damage under or by virtue of said contracts, or either of them; and if the said Calvin A. Cook shall well and faithfully keep and perform all the covenants and agreements to be kept and performed by him under the terms of any similar contracts that may be hereafter entered into between the said Jesse H. Farwell and the said Calvin A. Cook, and shall indemnify and save harmless the said Jesse H. Farwell from all loss, damage, or liability under or by virtue of such similar contracts that may be hereafter entered into as aforesaid, or any of them, and shall also pay and discharge, as the same shall become due, all existing indebtedness to the said Farwell, or indebtedness that may hereafter arise to the said Farwell, through or by reason of loans, advances, or materials furnished by the said Farwell to the said Cook, or in any other manner, and shall indemnify and save harmless the said Farwell for and on account of all indorsements made or hereafter to be made by the said Farwell for or on account of, or for the benefit of, the said Calvin A. Cook," etc. Mr. Cook entered upon the business of paving, and Mr. Farwell helped him to procure money, and aided him with his advice. During the summer of 1891 the defendants Bigelow furnished Mr. Cook with lumber which entered into the construction of the paving. They received pay in part for the lumber furnished, but in April, 1893, Mr. Cook was in debt to them more than $3,000, for which they had sued him. On April 19, 1893, a judgment was rendered in their favor, and execution was issued. On December 12, 1893, a levy was made by them on the lands mortgaged to Farwell in Wayne county, and a little later a levy was made on the other lands covered by the mortgage. On December 21, 1892, Mr. Cook, to further secure Mr. Farwell, gave him a mortgage on lands in Ontario. April 4, 1893, Mr. Farwell and Mr. Cook had a settlement of their accounts, and agreed that the amount which was due Mr. Farwell under the terms of the mortgage was upwards of $23,000. As Mr. Cook did not pay, this proceeding was commenced to foreclose the mortgage given to Mr. Farwell. Before the decree was rendered in this cause, Mr. Farwell began proceedings to foreclose the Canadian mortgage, but this action did not result in a sale of the lands. The Bigelows were made defendants in the foreclosure proceeding begun in Wayne county, as they claimed an interest in the lands covered by the mortgage, by virtue of their levy. The bill of complaint contained the usual averments in a foreclosure bill, and asked for the usual decree in a foreclosure proceeding. The Bigelows answered the bill, proofs were taken in open court, and a decree was entered according to the prayer of the bill. From that decree the Bigelows appeal....