Gonte v. Rosenberg

• Decision Date: 29 December 1922
• Docket Number: No. 32.,32.
• Citation: 221 Mich. 283,191 N.W. 198
• Parties: GONTE v. ROSENBERG et al.
• Court: Michigan Supreme Court

221 Mich. 283

191 N.W. 198

GONTE

v.ROSENBERG et al.

No. 32.

Supreme Court of Michigan.

Dec. 29, 1922.

Error to Circuit Court, Wayne County; Henry A. Mandell, Judge.

Action by Harry Gonte against Barnett Rosenberg and another, commenced in justice court and retried in the circuit court. Judgment for plaintiff, and defendants bring error. Affirmed.

Argued before FELLOWS, C. J., and WIEST, McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ. Daniel J. Alpert, of Detroit (Paul J. Wieselberg, of Detroit, of counsel), for appellants.

Robert M. toms, of Detroit, for appellee.

STEERE, J.

This case was commenced in justice court, where plaintiff recovered a judgment of $400, and defendants appealed it to the Wayne county circuit court, where, on retrial before the court without a jury, plaintiff was given judgment for $420, including $20 interest, and defendants have appealed to this court on various assignments of error, which are argued in their counsel's brief under the following headings: First, ‘complete and total failure of consideration for the agreement to pay commission.’ Second, ‘the defendants being only brokers, are liable for commissions only if the deal is actually closed.’ Third, ‘the verdict was against the great weight of evidence.’

Return of the justice before whom the case was first tried shows plaintiff declared in assumpsit on the common counts, to which defendants pleaded the general issue. Plaintiff's bill of particulars filed in justice court was:

‘To commission earned by plaintiff in procuring a purchaser for the property at the corner of Hastings and Willis streets, Detroit, $400.’

Although other writings relating to the subject are spoken of in the testimony, including Exhibit 2, which does not appear in the record, the only evidence in writing before this court relating to the transaction is Exhibit 1, which is as follows:

‘August 6, 1919. I agree to pay Mr. H. Gonte, $400.00 commission on the deal, property will be closed, corner Hastings are Willis, sold to Mr. Morris Steinberg, from Paul Carowski [signed] B. Rosenberg and Samuel Karbel.’

This was offered in evidence by plaintiff and admitted without objection. Thereafter no objection to this document was made by or for defendants during the trial beyond the contention, based on their own evidence, that it was without consideration and obtained by misrepresentation and fraud. When the defense sought to go into those questions, plaintiff's counsel objected on the ground that they were affirmative defenses which defendants had waived by pleading the general issue. Defendant's counsel then insisted that he ‘plead that downstairs,’ but it appearing that the justice had only returned ‘defendants plead the general issue,’ he asked leave to amend, which the court ultimately granted, and defendants were permitted to introduce such testimony upon those subjects as they desired.

The parties to this litigation were, according to their description of their vocations, in the real estate business as agents or brokers. Their testimony as it reads is more or less disjunctive, in parts somewhat confusing and self-contradictory, indicating a limited command of the English language, which is apparently not their mother tongue. Of their antecedents and attainments Rosenberg testified that the had lived in Detroit 17 years, his business was ‘real estate,’ he could sign his name but could not write English or read handwriting but could read printing, and his partner Karbel did not read English. Karbel was silent as to his attainments, his testimony of five lines consisting of an admission that Exhibit 1 contained his signature, the property in question was sold to Steinberg prior to August 5th and Exhibit 1 ‘was signed a couple of weeks later, on August 6th.’ Gonte, who called Exhibit 1 a ‘receipt,’ testified that his business was ‘notary public and barber,’ and at the time of this transaction his ‘business was real estate,’ with his ‘real estate office in the barber shop.’ His version of the transaction on cross-examination is, in part, as follows:

‘I was the agent in the deal with Carowski. Carowski was the owner of the property. I was over with Carowski. I talked to him about selling the property. Rosenberg and Karbel were to pay me commission for the sale of this property. They were the agents. They came to me and said: ‘I got a buyer, I should give him a seller.’ And I went over to the seller to make the sale of the property. I did not bring Steinberg to them; I talked to Carowski. I brought the seller. They were to pay the commission because I gave them the seller. They didn't notify me when the deal was closed. They got commission, $1,000. I am positive about that. * * * I was in it between Carowski and Steinberg, and then, after Steinberg made the $500 deposit, he was supposed to back out. And they told me I got to get another customer so that he will close the deal. * * * The first time they came over to me, they told me if I would get them a customer from Steinberg to Carowski, to buy the property, they would pay me a commission if they got a deposit from Steinberg to Carowski. They came over to me, and they told me that there would not be a deal until I give them another customer from Steinberg. Until I give them another customer that shows Steinberg that he could prove he could get what he paid for it. And that is why I would not trust them. I told them I wanted a receipt, otherwise I would not work on it. So after they give me this receipt, I went to work. * * * I wasn't there when Mr. Steinberg gave a deposit on the property. They didn't tell me anything. I wasn't present when the receipt was made out.'

The task of securing a purchaser from Steinberg...