Hamilton v. Clippert

• Decision Date: 24 June 1927
• Docket Number: No. 8.,8.
• Citation: 239 Mich. 440,214 N.W. 419
• Parties: HAMILTON v. CLIPPERT.
• Court: Michigan Supreme Court

239 Mich. 440

214 N.W. 419

HAMILTON

v.CLIPPERT.

No. 8.

Supreme Court of Michigan.

June 24, 1927.

Error to Circuit Court, Wayne County; Vincent M. Brennan, Judge.

Action by Theodore W. Hamilton against Clarence C. Clippert. Judgment for plaintiff, and defendant brings error. Affirmed.

This is an action brought by a real estate broker to recover his commission under a written listing signed by defendant, which, after giving the description and price, reads:

‘I hereby give T. W. Hamilton the right, until 30 days' written notice of withdrawal, to sell the property described. I agree to furnish abstract of title to date of sale and to execute an instrument conveying good title to the purchaser you secure. I also agree to pay you a commission of 5 per cent. upon the price accepted upon any sale or exchange of said property while this agreement remains in force.’

It is the claim of the plaintiff and he testifies that he brought the attention of the Samuel A. Merchant Company to the property and that they became at once interested in it. He testifies to taking up the deal with both the company and defendant and to getting them together on terms of minor importance. He says:

‘I told him (defendant) that the Merchant Company wanted-they told me they would buy the property on the terms-they agreed to the terms. The terms were $1,500 an acre. And there was a matter-a little difference as to the amount of the down payment, not very much difference, but a slight difference as to the amount, and the times that the payments would be made, but the Merchant's people said what they would-told me what terms they would give, and I went to Clippert and got Clippert's agreement to those terms. His oral agreement to the terms. There was no quibbling about the price at any time. It was $1,500 an acre.’

Over objection of defendant's counsel he was permitted to testify:

‘Q. What did Mr. Clippert say to you, if anything, with reference to whether or not he had entered into any transaction or agreement with the Merchant Company? A. He told me he had sold the property to the Merchant Company. He told me that within a week of the first time that I called on the Merchant Company; and it was in the board of health laboratory where he was working at that time. * * * Dr. Clippert told me the property was sold and-we couldn't have very much conversation about my selling the property after he said it had been sold. He showed me a check for $1,000, with the signature of the Merchant Company. He said that it was the payment to bind the sale. It was made payable to him, the way I remember it. It was either signed Samuel A. Merchant or the Samuel A. Merchant Company, I will not be sure on that point; but I know that it was Samuel A. Merchant, and possibly ‘Company.”

There is also testimony in the case to the effect that the officials of the Merchant Company asked plaintiff to split his commission with them, which he refused to do, and we think it could be inferred by the jury that the Merchant Company declined to close the deal through plaintiff, unless he would accede to this request, and decided to close the deal directly with defendant or through one acting for them. There is testimony by plaintiff that he advised defendant of this situation and that ‘he said he would protect me.’

The record shows that a short time after listing the property with plaintiff the defendant also executed a paper, known as Exhibit 3, to one Mayer B. Sulzberger, the legal effect of which is much discussed in defendant's brief and which we will consider in the opinion. It involved the same property. At the close of plaintiff's proofs and again at the close of all the proofs defendant asked for a directed verdict. The question was reserved under the Empson Act (Pub. Acts 1915, No. 217), but a judgment was entered upon the verdict, which is here reviewed under numerous assignments of error, most of which are based on defendant's contention that he was entitled to a directed verdict.

Argued before the Entire Bench.Stevenson, Butzel, Eaman & Long, of Detroit (Rockwell T. Gust, of counsel), of Detroit, for appellant.

Bigelow & Rankin, of Detroit, for appellee.

FELLOWS, J. (after stating the facts as above).

It is insisted that the trial court erred in permitting the plaintiff to testify to statements claimed to have been made to him by defendant. It is insisted that these statements had reference to written instruments and that parol proof as to such statements was inadmissible. We should first consider this question, because, if this testimony was not admissible, then only the papers were before the court. It will be noted from the statement of facts that these statements of defendant amounted to an admission that defendant had sold the property to the Merchant. Company, an admission against interest. This was an admission of a fact as distinguished from one of law. Whether defendant had sold the property to the Merchant Company was a question of fact. Whether the papers he had executed conveyed good title or constituted a binding contract was, of course, one of law. But an admission against...