Holmes v. Foss

• Citation: 91 N.W. 1120,131 Mich. 487
• Court: Michigan Supreme Court
• Decision Date: 30 September 1902
• Parties: HOLMES v. FOSS.

91 N.W. 1120

131 Mich. 487

HOLMES v. FOSS.

Supreme Court of Michigan

September 30, 1902

Error to circuit court, Marquette county; John W. Stone, Judge. Action by David H. Holmes against Edgar B. Foss. Judgment for plaintiff, and defendant brings error. Affirmed.

A. B Eldredge (Simonson, Gillett & Clark, of counsel), for appellant.

Button & Culver (Clark & Pearl, of counsel), for appellee.

MOORE J.

The plaintiff recovered a judgment of $2,052.46 against defendant. The case is brought here by writ of error. The questions involved so clearly appear in the charge of the court to the jury that we reproduce it here:

'Gentlemen this is a suit brought by the plaintiff, Mr. Holmes against the defendant, Mr. Foss, in which the plaintiff claims a certain commission to be due him of 3 per cent. upon the purchase price by said defendant of the Michigan Land & Iron Company, Limited, of certain pine timber, that has been detailed before you. It is undisputed in the evidence, gentlemen, that this pine timber was sold finally to the defendant, Foss, for the sum of $64,900. The plaintiff claims a commission upon the sale of 3 per cent., which would amount to $1,947. If there was ever a duty upon the defendant to pay this sum, it is fair to say that the duty devolved upon the defendant as early as early as November 1, 1899. You may add 13 months' interest, or $105.46, if you find for the plaintiff, to that sum, making a total of $2,052.46, which, should you find for the plaintiff, must be the maximum of the verdict, or the limit. In fact, that is the sum that is claimed by the plaintiff. If the plaintiff is entitled to recover at your hands at all, he is entitled to recover that sum. If he is not entitled to recover that sum, he is not entitled to recover anything. Now, gentlemen, in this case bear in mind that, so far as establishing the contract is concerned and the showing of the breach thereof, the duty rests upon the plaintiff. The plaintiff must have a preponderance of evidence in the case, showing you that the contract was made as he alleges it to have been made; that there was an absolute promise made by the defendant to pay him the sum of 3 per cent. upon the purchase price of the timber in question, provided it was purchased by the defendant. That it was eventually purchased by the defendant is not disputed; but it is disputed that the defendant ever made such a contract. Now, gentlemen, to come a little nearer to the case, the plaintiff claims that he met the defendant on the 26th of June, 1899, on the arrival of the train from St. Ignace. It is undisputed that prior to that time, running back a month or two before that time, Mr. Holmes, the plaintiff, had performed some service for Mr. Foss, the defendant, in the matter of looking over an alleged trespass in the vicinity of Au Train, for which he had rendered his bill, and which had been paid; and also there had been some negotiations between them before that time in reference to a sale to the defendant by Mr. Holmes of what is termed seven 40's of pine that Mr. Holmes owned or had an interest in, and the land looker of Mr. Foss, the defendant, Mr. Kaiser, had been with Mr. Holmes upon the seven 40's, prior to the arrival of Mr. Foss in this city on the 26th of June, 1899. That far the evidence is undisputed. What occurred upon the arrival of Mr. Foss in this city upon that date is disputed. The plaintiff claims that upon being informed by Mr. Foss something in regard to the seven 40's, or the conversation arising upon that subject first, he then calls his attention to other lands that had valuable timber upon that he was interested in, and claims that he mentioned to him certain pine owned by the Michigan Land & Iron Company, and went with him to the office of the Michigan Land & Iron Company, and there, in the presence of Mr. Stevens, the subject was discussed of the proposed purchase by Mr. Foss from the Michigan Land & Iron Company of certain pine. Now, gentlemen, he further claims that, leaving Mr. Foss there, an arrangement was made by the defendant that he was to meet him at the office of the Hotel Marquette in the evening. It is further claimed by the plaintiff that, having spent a great deal of valuable time in estimating and looking over this property, he was advised in regard to it, and he did meet Mr. Foss that evening at the hotel, and, after certain conversation with reference to the lands and the character of the timber,--the location of the land and the character of the timber,--stating to him that it was good, big timber, or words to that effect, along the line that it was valuable timber, that the question is asked by Mr. Foss of him, 'What will be your commission upon the purchase of this?' and he said, 'Five per cent. of the purchase price;' that the defendant says, 'That is too much; I won't pay it.' Plaintiff then claims that he stated, 'What will you pay?' And he said, 'Three per cent.' And he claims that he responded, 'I will accept it.' Now, gentlemen, the plaintiff claims the bargain was made then and there; that they then sat down and went over the subject of these lands with a map; that the lands were pointed out, the way in which the timber would come out best was explained, and that then and there the minds of the par ties met upon the contract. Now, gentlemen, this is the claim of the plaintiff. Was there such a contract made? Look over the evidence bearing upon the subject. There is a square denial of it by the defendant. The defendant claims that the bargain there made was substantially as stated in the letter of July 16th, which probably should be the 18th, and he claims that the proposition was that he would give him 3 per cent., provided this timber should be purchased upon a satisfactory estimate to him at $5 per thousand stumpage. The burden of proof is upon the plaintiff to establish the making of this bargain in the first instance. Was there such a bargain made as is claimed here by the plaintiff? You are to look at all the surrounding circumstances. You may look at the subsequent conduct of the parties. Bring to bear all the evidence upon this subject,--those who were present, and state what the bargain was upon that evening. If you shall say, by a preponderance of the evidence, that this contract was made, as claimed by the plaintiff; that he, having imparted this information, which he claims he imparted, to Mr. Foss, that he had been with him to the Michigan Land & Iron Company's office and had introduced the subject of this land to him,--then, gentlemen, if there is any change claimed in this contract, it devolves upon the defendant to show that change. Now, there are two branches to this. If you shall say there is no preponderance of evidence in favor of the plaintiff that any such contract was ever made, then, of course, the plaintiff cannot recover here, and your verdict should be for the defendant. But, if you shall find that there was made such a contract as is claimed by the plaintiff, then you should not cease your inquiry, but then should say, was it subsequently modified, by the letter written by Mr. Foss, and the subsequent action and conduct of the parties? There I think the burden is upon the defendant. It shifts upon him to show the change in the contract. if you find it once established; but, if not established in the first instance, the plaintiff cannot recover.

'Certain requests have been passed to me, gentlemen, some of which I give you: The burden of proof is upon the plaintiff to make out his case; and, if you find the evidence equally balanced you must find a verdict of no cause of action. You understand, gentlemen, when parties come into court, and before any evidence is introduced, the scales are even, upon the subject of evidence. Now, the evidence has been put in the scale on the part of the plaintiff. Evidence has been put in on the part of the defendant. To establish and make out the plaintiff's case, there must be a preponderance of evidence, so that it outweighs the evidence upon the other side; and if, at the close of all the evidence in the case upon this proposition and the making out of his case, the evidence is equally balanced, then there will be no preponderance, would there? The scale would not preponderate in favor of the plaintiff; and there must be a preponderance of evidence before the plaintiff can recover. In determining the weight of the evidence, you should take into consideration the conduct of the plaintiff, and that from time to time he presented accounts to the defendant for looking this and other lands for him; that the timber of the Michigan Land & Iron Company was bought September 12, 1899,--that is, the written contract was on that date. I think the evidence shows the purchase was closed a few days earlier, about the 1st of the month. The plaintiff made no claim for commission until some time in October or November,--the plaintiff claims, at the time the contract was made by Stickney & Johnson with Mr. Foss, which was in October or November, and that he then called his attention to this subject matter of commissions. That, however, is denied by the defendant; but you may consider that he made no claim for commission at least until October or November, and has never as yet presented a bill for the claim he seeks to recover in this case. No formal bill has ever been presented, gentlemen. It has been urged to you that he had presented bills for his services and that they had been paid, but that no formal bill was ever presented in this case. It is true that he wrote him on the subject in December; but he has never as yet presented a bill for the claim he seeks to recover in this case. He presented his last bill November 21, 1899, for services, and in all his communications up...