Grimshaw v. Aske, 8
| Decision Date | 07 January 1952 |
| Docket Number | No. 8,8 |
| Parties | GRIMSHAW v. ASKE et al. |
| Court | Michigan Supreme Court |
Maurice P. Rhodes, Walter M. Nelson, Detroit, for appellant.
McCauley & Wilson, Detroit (Everett G. Wright, Detroit, of Counsel), for appellee Charles B. Aske, Jr.
Wilber M. Brucker, Guerin Todd, Jr., Clark, Klein Brucker & Waples, Detroit, for appellees and cross-appellants Lyon, Inc. and George A. Lyon.
Before the Entire Bench, except BUTZEL, J.
In September, 1946, plaintiff Grimshaw brought suit in the circuit court for Wayne county against defendants Aske, Lyon, Inc., and George A. Lyon individually, claiming that they were liable to him in damages for fraud and on the basis of a written agreement alleged to have been signed by Aske in 1939, but later destroyed, in which plaintiff claims that Aske agreed as follows: 'I am hereby giving you 2 cents per ring commission on my White Side Wall Tire Ring development in consideration for services rendered.'
During the ensuing 2 years after said suit was filed and until October, 1948, issues were joined, depositions taken, many motions were heard and disposed of by the trial court, and divers pleadings were filed including a first amended declaration and answers thereto. On October 27, 1948, the plaintiff filed a second amended declaration and bill of particulars to which separate answers were filed by Aske, and by Lyon, Inc., and George A. Lyon acting together. The case finally reached trial by jury in May, 1949, on the issues joined under plaintiff's second amended declaration; and after a jury trial lasting 2 months the jury rendered a verdict for the plaintiff against the defendants jointly for $328,400.
At the close of plaintiff's proofs during the trial, and again at the end of all the proofs, the defendants moved for a directed verdict, decision on which was deferred by the court under the Empson act. Comp.Laws 1948, §§ 691.691 to 691.693. After verdict the defendants renewed said motions and also moved for judgment non obstante veredicto. The trial court granted the motion of Lyon, Inc., and George A. Lyon for judgment non obstante veredicto, but denied Aske's motion for such judgment, and on September 14, 1949, entered judgment for defendants Lyon, Inc., and George A. Lyon non obstante veredicto, and judgment for plaintiff against defendant Aske for the full amount of the verdict, with costs. Thereupon the plaintiff filed claim of appeal from the judgment entered non obstante veredicto in favor of Lyon, Inc., and George A. Lyon, and defendant Aske filed a motion for a new trial as to himself on the ground that the judgment for the full amount against him alone would be grossly excessive and unfair and not in accordance with the proofs. On that ground the trial court on November 28, 1949, entered an order granting Aske a new trial. From said order plaintiff, on leave granted by this Court, has filed a claim of appeal in the nature of mandamus to compel the trial court to set aside said order, and the defendants Lyon, Inc., and George A. Lyon have been granted leave to take a delayed cross appeal with plaintiff's appeal from the judgment non obstante veredicto, in which they ask for a new trial in the event that this Court sets aside said judgment.
The complicated claims of plaintiff-appellant can best be indicated by reference to his second amended declaration on which issue was finally joined and jury trial had. Said declaration contains 6 counts, namely, 2 in assumpsit; 2 in fraud, conversion, conspiracy and misrepresentation; 1 for wrongfully procuring the breach of a contract; and the common counts. It shows that these parties have business situs in Detroit, where Lyon, Inc., has a plant for the manufacture of automotive parts and specialties, and where Aske is engaged in business as a manufacturer's agent for the sale of such articles. It has 9 paragraphs applicable to each count which appellant's brief summarizes as follows:
'That in the fall of 1935, plaintiff, who had been employed as a designer in the automotive field for many years, became interested in designing and developing a mechanical device for giving pneumatic automotive tires the appearance of white side wall tires and of giving tires an appearance of added depth and thickness. That by January 1, 1936, plaintiff, without the aid of anyone, had invented and fully developed such a device, and that the same remains in application and use by defendants substantially as invented, with only slight modification.
'That later, plaintiff and defendant Aske, who had been engaged in the sale of automobile parts and specialties for many years, started working together in the development of the sale of plaintiff's idea and mechanical device. That these two parties had certain oral understandings and agreement and that in the year 1939 defendant Aske gave plaintiff a written agreement, in words and figures, except for date, the same as the written instrument hereinafter set forth. That said written agreement was later replaced, at request of defendant Aske, by a written agreement which reads as follows:
and the original agreement torn up and destroyed.
'That long before August 1, 1948 (1944), defendant Lyon and Lyon, Inc., had full knowledge and notice of the said agreement and of the contents thereof between plaintiff and defendant Aske, and that defendant Aske paid and continued to pay plaintiff under the same from the year 1939. That the said defendants, wrongfully contriving and designing to cheat and defraud plaintiff, did, by means of statements and representations known by defendants to be false and fraudulent and procured to be made by defendant Aske to plaintiff, and without any consideration whatever, wrongfully induce and persuade plaintiff to sign an apparent cancellation and termination of the agreement above described in words as follows:
which plaintiff signed in reliance upon the said false and fraudulent representations so made to him and when he was wholly ignorant of the true facts and relationship between the defendants.'
In substance, plaintiff claimed a written agreement between himself and Aske dating back to 1939 (subsequently destroyed), and that Aske, after November 20, 1941, made payments under the alleged 1939 agreement as though the original writing had continued in existence. Plaintiff claims that an original agreement in 1939 actually continued in effect, and the importance of this claim will appear later. The declaration alleges that long before August, [sic] 1948 (1944), the corporate defendant and George A. Lyon 'had full knowledge and notice of said agreement between plaintiff and said Charles B. Aske, Jr., defendant herein, and of the contents of said paper writings and of the fact that said Charles B. Aske, Jr., paid and continued to pay plaintiff amounts on account thereof covering the whole period from the date of said original paper writing in the year 1939, and thereafter said defendants wrongfully contriving and designing to cheat and defraud said plaintiff did by means of statements and representations know by said defendants to be false and fraudulent made by said Charles B. Aske, Jr., and procured to be made by said Charles B. Aske, Jr., to plaintiff by said George A. Lyon and said corporations, defendants herein, without any consideration whatever wrongfully induced and persuaded said plaintiff to sign a paper writing and an addition to the said agreement an apparent cancellation and termination thereof in words and figures as follows:
The first two counts of the declaration were founded on assumpsit. The third and fourth counts charge that the defendants conspired to defraud and deprive the plaintiff of his rights under the aforesaid Aske agreement, and that said defendants caused the plaintiff to give Aske the appearance of being the sole owner of the said white side wall tire ring, thereby defrauding the plaintiff. Count 5 alleges that the defendants had combined together about August 1, 1944, and thereby brought about a breach of the said alleged agreement between plaintiff and Aske and a termination thereof by false and fraudulent representations, and count 6 declares upon the common counts. The bill of particulars accompanying the declaration claims damages in an estimated amount of $1,000,000 for 2 cents commission on each white side wall tire ring manufactured and sold by the defendants, and also $2,000,000 based on fraud, misrepresentation and alleged wrongful procurement of the breach of the agreement with Aske.
In substance and effect, the separate answers filed by Aske and by defendants Lyon, Inc., and George A. Lyon together, deny the allegations in the several counts of the declaration and set up as affirmative defenses, among others, that Aske had made application for a patent and developed the same upon plaintiff's representation that it did not infringe upon plaintiff's claims and that Aske was free to proceed to do so, as against any claims the plaintiff might have in white side wall tire rings; and also that the so-called agreement dated November 20, 1941 (hereinbefore quoted), which plaintiff construes as a promise to pay plaintiff 2 cents commission on each tire ring was in fact a cancellation of any previous oral promise and that there was a complete accord and satisfaction,...
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