Gardella v. Babigian

• Decision Date: 05 June 1933
• Docket Number: No. 116.,116.
• Citation: 263 Mich. 514,248 N.W. 885
• Parties: GARDELLA et al. v. BABIGIAN et al.
• Court: Michigan Supreme Court

263 Mich. 514

248 N.W. 885

GARDELLA et al.

v.BABIGIAN et al.

No. 116.

Supreme Court of Michigan.

June 5, 1933.

Appeal from Circuit Court, Wayne County; Clyde I. Webster, Judge.

Action by Louis P. Gardella and others against Dickran K. Babigian and others. From order dismissing action, plaintiff appeal.

Reversed and remanded, with directions.

Argued before the Entire Bench.Anderson, Wilcox, Lacy & Lawson, of Detroit (C. J. Huddleston, of Detroit, of counsel), for appellants.

Frank S. Valenti, of Detroit (W. W. Wicker, of Detroit, of counsel), for appellee Albert Rosasco.

SHARPE, Justice.

Plaintiffs appeal from an order dismissing their action. It was based on the misjoinder of the parties and causes of action. Plaintiffs asked leave to file an amended declaration, and they allege error on the refusal of the court to permit it to be done as an abuse of discretion on his part.

In the first count of the amended declaration plaintiffs allege that they were personal friends of the defendant Albert Rosasco, and were induced by him to enter into a land contract with him and the defendant Babigian as vendees for the purchase of certain real estate in the county of Oakland; that Rosasco took the plaintiffs ‘individually and in groups' to the land and pointed out the advantages of making such purchase, and that they jointly contributed $16,000 on the down payment therefor, and afterwards made additional payments thereon; that both Rosasco and Babigian represented to them that the description of the land in the contract conformed to that shown them by Rosasco; that they later discovered that such representation was untrue and declined to make further payments thereon, whereupon the vendor, the defendant McAlpine, as trustee for the other named defendants, served upon them a notice of forfeiture, thus terminating their rights under the contract, and that they thereafter ‘individually and collectively’ demanded a return of the money paid by them from Rosasco and Babigian, stated in the bill of particulars to amount to the sum of $47,549.16, and bring this action for the recovery thereof.

In the second count they allege that Rosasco and Babigian each agreed to contribute $2,000 towards the down payment on the contract, and that they supposed they had done so, but they later discovered that such payment had not been made by them, but, on the contrary, Rosasco and Babigian were paid the sum of $5,000 by the vendor, out of the moneys paid in by plaintiffs, as a commission for securing the execution of the land contract by them and the down payment made at that time. They also allege: ‘That all of the above named defendants had knowledge that the defendants, Albert Rosasco and Dickran K. Babigian, were profiting by the transaction without the knowledge or consent of these plaintiffs; that these plaintiffs believed that all of the defendants participated in the transaction, and by their representations profited to the extent of approximately forty-seven thousand ($47,000.00) dollars of the plaintiffs' money.'

These two claims were intermingled in the one count in the declaration first filed.

The contract entered into by the plaintiffs and Rosasco and Babigian for the purchase of the land was a joint adventure on their part. It was made by the vendor with them individually as vendees. A joint adventure was defined in Fletcher v. Fletcher, 206 Mich. 153, 167, 172 N. W. 436, 440, ‘as an association of two or more persons to carry out a single business enterprise for profit.’ It is a creation of the law, not referred to in any statute. Gleichman v. Players-Lasky Corp., 241 Mich. 266, 217 N. W. 43. In Keiswetter v. Rubenstein, 235 Mich. 36, 45, 209 N. W. 154, 157, 48 A. L. R. 1049, it was said: ‘While under the present state of the law courts do not treat a...