Janiszewski v. Shank
| Decision Date | 03 April 1925 |
| Docket Number | Oct. Term, 1924.,No. 56,56 |
| Citation | 202 N.W. 949,230 Mich. 189 |
| Parties | JANISZEWSKI v. SHANK et al. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Wayne County, in Chancery; Guy E. Smith, Judge.
Bill for specific performance by Stanislaw Janiszewski against Mary Shank and another, in which defendants filed a cross-bill. From decree dismissing his bill, plaintiff appeals. Decree for plaintiff.
Argued before McDONALD, C. J., and CLARK, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ.Thomas W. Thompson, of Detroit (Butzel, Levin & Winston and A. J. Levin, all of Detroit, of counsel), for appellant.
Anthony Nelson, of Detroit, for appellee Shank.
The purpose of this bill is to enforce specific performance of the following land contract:
‘June 9, 1919.
‘[Signed] Mary Shank.
‘Stanislaw Janiszewski.
The plaintiff claims that he secured the abstract about July 22, 1919, and that it showed a conveyance of the premises from Mary Shank to Edmund Shank, her son, on the 8th of June, 1919, which was recorded on the 13th of June, 1919; that he went to see Mary Shank and asked for an explanation of this deed, and was informed that she had changed her mind and had deeded the property to her son; that he tendered her the amount due, but that she declined to accept it and refused to perform the contract.
The sale was made to the plaintiff through a real estate broker, John Stonert, who had a written authorization to sell on the terms mentioned in the above memorandum. The defendant Mary Shank admits having signed the contract, but says that her signature was obtained through undue influence, fraud, and misrepresentation; that as soon as she discovered the fraud she repudiated the transaction and tendered a return of the initial deposit. In further defense to the action she says that the written memorandum of the contract does not sufficiently describe the premises as to comply with the statute of frauds, and that it is incomplete, in this, that it makes no provision for delivery and fails to state the rate of interest.
The defendants filed an answer and cross-bill in which they asked that the contract of sale be canceled, and that Edmund Shank be decreed to be the owner of the property.
On the hearing the circuit judge found that the defendants' claim of fraud and undue influence was established by the evidence, and that in any event the plaintiff had an adequate remedy at law, and therefore declined to grant specific performance of the contract. From the decree entered dismissing the bill, the plaintiff has appealed.
The first question presented is whether the evidence supports the defendants' claim that the signature of Mary Shank to the contract was obtained by fraud.
We are unable to agree with the conclusion of the circuit judge that Mary Shank's signature to the contract was obtained by ‘undue influence and misrepresentation amounting to fraud.'
The defendants' theory as stated in their cross-bill was that the property belonged to the son Edmund Shank, and that defendant Mary Shank had been fraudulently induced to sign the contract on the representation and in the belief that it was merely her written consent that her son might sell it. On the hearing this theory was abandoned, and it was there claimed that the property belonged to Mary Shank, and that she signed the contract on the representation that it was merely a receipt for $200, which she was to return on the following morning if her son disapproved of the sale.
In determining the question of fraud, it is a significant fact that the contract in question contained the identical consideration and terms which were contained in the written sales agreement between Mary Shank and John Stonert, her agent. In other words, she had previously voluntarily and in writing authorized John Stonert to sell the property for the same consideration and on the same terms which were contained in the contract to which she claims her signature was fraudulently obtained. This sales agreement was not attacked in any particular...
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