Klien v. Bayer
| Decision Date | 06 June 1890 |
| Citation | 81 Mich. 233,45 N.W. 991 |
| Court | Michigan Supreme Court |
| Parties | KLIEN et ux. v. BAYER. |
Error to circuit court, Wayne county; HENRY N. BREVOORT, Judge.
Action by John Klien, and Margaretta Klien, his wife, against Martin Bayer. Judgment was entered on a verdict for plaintiffs, and defendant brings error.
Charles M. Swift, for appellant.
James H. Pound, for appellees.
May 10 1884, defendant loaned plaintiffs $750, and received from them as security a real-estate mortgage. The loan was for two years, with interest at 7 per cent. The mortgagors were to pay taxes and keep building insured. It also contained a stipulation to pay $50 attorney fee in case of foreclosure. On June 21, 1886, the plaintiffs executed and delivered to defendant another mortgage, covering the same property as the first one, to secure $177, payable in two months, with interest at 7 per cent. The first mortgage not having been paid, Bayer placed it in the hands of an attorney by the name of Noah to foreclose, which he proceeded to do by advertisement under the statute, and a sale was made on the 19th day of November, A. D. 1887, and deed executed. On the 15th of November, 1888, Andrew Koch, who is a brother of Mrs Klien, furnished the money to redeem the mortgage and pay the balance due to Mr. Bayer. He bargained with Mr. and Mrs Klien to purchase the property for $1,300, and agreed as part of the consideration to pay Mr. Bayer what was due to him. Mr. Klien, Mrs. Klien, and Mr. Koch went to Mr Bayer's house on the 15th day of November, 1889, to settle with him. He had a statement of what he claimed the Kliens owed him. The parties all speak the German language, and Mr. Bayer read the items of his statement to them in German. They made no obection to any of the items. The balance claimed to be due by Mr. Bayer was $1,153.60, which Koch paid, and Bayer discharged the two mortgages. John and Margaretta Klien now claim that the amount claimed upon that settlement to be due by Bayer is incorrect; that it contained items of improper charges, and items of false and fraudulent charges. They claim that the amount of money which they borrowed and which the small mortgage was given to secure, was only $20 instead of $177; that the items of $50 for attorney's fees upon foreclosing mortgage, the items for taxes paid by Bayer upon the land, the item for two tax abstracts, $2, the item of $1 for drawing the mortgage, the item of $4.02 for compound interest, the item of $2.50 for recording sheriff's deed, the item of $1.00 for drawing deed, and various other small items which counsel for plaintiff claims, with interest added, aggregated at the time of trial $242.19. The plaintiffs were sworn through interpreters, and denied having received but $20, for which the second mortgage was given. The defendant gave testimony tending to show that the second mortgage was made up of past-due interest on the first mortgage in part, and for money loaned at various times. He also introduced as a witness August J. Stoeffel, who was the notary public who drew the second mortgage, and before whom it was executed. He testified that he was present when Mr. Klien applied to Mr. Bayer for a loan of $20; that Klien told him if he would sign a mortgage for the back interest and the money he had already let him have he would let him have the $20; that a day or two after the mortgage was executed at Bayer's residence by Mr. and Mrs. Klien, and before they signed it, he explained to them in German the contents of the mortgage. Testimony was gone into upon both sides as to the consideration of the mortgage; and, if the case was rightly submitted to the jury, the judgment must stand.
The counsel for defendant urges that the settlement had by the parties on the 15th of November must, in the absence of fraud or misrepresentation, be held binding and conclusive upon the parties. We do not think this rule is applicable, under the testimony in this case. The mortgagee had not at that time the right to include in the amount claimed to be due upon a statutory foreclosure an attorney fee of any amount, for the reason that the mortgage was given before the statute allowing attorneys'...
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