Leslie v. Kennedy

• Decision Date: 06 March 1930
• Docket Number: No. 65.,65.
• Parties: LESLIE v. KENNEDY et al.
• Court: Michigan Supreme Court

249 Mich. 553

229 N.W. 469

LESLIE

v.KENNEDY et al.

No. 65.

Supreme Court of Michigan.

March 6, 1930.

Appeal from Circuit Court, Wayne County, in Chancery; Arthur Webster, Judge.

Suit by Arthur Leslie against Charles J. Kennedy and others. Decree for plaintiff, and defendants appeal.

Decree reversed and rendered for dismissal of plaintiff's bill and granting relief prayed for in cross-bill, and case remanded.

Argued before WIEST, C. J., and BUTZEL, CLARK, POTTER, SHARPE, NORTH, and FEAD, JJ.Edmund M. Sloman and Everett H. Wells, both of Detroit, for appellants.

Wynn & Zinn, of Detroit, for appellee.

SHARPE, J.

In the spring of 1925 the defendants were the owners and subdividers of certain real estate near Detroit, in the county of Wayne. They had in their employ as a salesman one Russell Carrier. He had formerly been employed by Joe and Louise Schiappicasse as a chauffeur. Soon after entering the employ of the defendants, Carrier induced Mrs. Schiappicasse to purchase a lot in the subdivision. She paid him $20, and instructed him to have the name of her brother, Jerome Henley, inserted in the contract as purchaser as she was buying it for him. On March 30th Carrier prepared a preliminary purchase agreement covering lot 293 and had his wife sign the name ‘Jerome Henley’ thereto, and turned this agreement and the $20 deposit into the office of the defendants; the deposit being credited to Henley on defendants' books. About a week later, Mrs. Schiappicasse told Carrier that she did not want to complete the purchase, and he said ‘it would be all right.’ She did not ask for the return of the deposit, nor was it made to her. No entry was made in defendants' books relative thereto.

In the month of May following, Carrier's brother introduced plaintiff to him as a prospective purchaser of a lot in the subdivision. The three of them afterwards visited the property, and Carrier then told plaintiff that a down payment of $20 had been made on lot 293 and that he could give plaintiff the advantage of it by transferring the deal to him. Later, plaintiff decided to make the purchase. Carrier, after consulting with T. G. Harris, the sales manager under whom he worked, prepared a land contract for the sale of lot 293 by defendants to Jerome Henley, dated May 7, 1925, for the sum of $1,000, of which $200 was acknowledged to be paid and the balance in monthly installments, secured the signature of defendants thereto, and himself signed the name of Jerome Henley as purchaser. He attached an assignment of the contract from Henley to the plaintiff, and signed Henley's name to it. To this was appended the following, signed by plaintiff: ‘I, Arthur Leslie, accept this transfer and agree to carry out all provisions named in said contract.’ The contract provided: ‘That no sale, transfer, assignment or pledge of this contract shall be in any manner binding upon the seller unless either said Charles J. Kennedy or Charles A. Kandt first consents thereto in writing.’

To comply therewith Carrier procured the signature of Charles J. Kennedy to an indorsement reading: ‘The transfer of this contract is accepted by the undersigned.’

Plaintiff borrowed $180 from Carrier's brother, and paid it to Carrier. This, with the $20 paid by Mrs. Schiappicasse, made up the down payment required, and the contract with its indorsements was turned over to plaintiff. He made additional payments thereon, amounting to $318.16. On April 20, 1928, he was in default in the sum of $206.79, and defendants caused a notice to be served on him that unless this amount was paid on or...