Merrill v. Wilson
| Decision Date | 09 June 1887 |
| Citation | 66 Mich. 232,33 N.W. 716 |
| Court | Michigan Supreme Court |
| Parties | MERRILL v. WILSON and others. |
Appeal from circuit court, Alger county. In chancery.
E.L Beach, for complainant.
Tarsney & Weadock, for defendants and appellants.
Complainant filed his bill in this cause on the seventh day of April 1886, stating that he was the owner in fee of certain lands in Alger county, Michigan, therein particularly described that prior to the third day of October, 1885 he placed in the hands of Combs & Wilson, real-estate agents in East Saginaw, these lands for sale, with instructions to sell the same for cash, and for cash only; and that he would make no other contract, and, if a sale for cash could not be made, he would withdraw them from the market. Combs & Wilson informed complainant that they had found a purchaser who would pay complainant the sum of $4,856, $2,000 in cash, and give a mortgage back for the balance of the purchase price, as a sale could not be made for cash. Complainant refused to make a sale except for cash. Combs was at complainant's home in Canada when complainant received a telegram from Wilson stating that the money was ready, and that, as soon as a deed was delivered, the money would be paid, (but which he afterwards ascertained to be untrue.) Complainant, relying upon the truth of said telegram, with his wife, executed a deed of said timber to Denfield and Mason. He was induced to sign said deed by the false representations so made to him. October 20, 1885, Denfield, Mason, and wife conveyed by deed all the pine timber on 17 40's for $6,000, of which $3,000 was paid down, and a mortgage given back for $3,000, the balance of the purchase price. There now remains unsold of the pine timber aforesaid 320 acres. At the time the deed was made by Denfield and Mason to Foss and Leiter, a contract was made by Combs & Wilson, and delivered to Foss and Leiter, showing that Denfield and Mason held the pine timber for Combs & Wilson. Complainant claims that Denfield and Mason never had any interest in the said timber. Neither was there a deed delivered to either of them, nor any money paid by either of them, but the same was held by them under an arrangement made between said Combs & Wilson by which they could resell through Denfield and Mason, and profit largely thereby. This arrangement, and its object, was well known to all the defendants, who thus conspired to cheat and defraud complainant in the premises. Combs & Wilson paid nothing for the land or timber, and no money was paid to complainant except a portion of that which was paid by Foss and Leiter to Combs & Wilson. On the twenty-sixth day of March, 1886, Denfield quit-claimed all right, title, and interest which he held in the timber to the complainant. That complainant requested Mason to reconvey to him all his right therein, which Mason refused to do. That, Wilson, Denfield, and Mason conspired to defraud complainant out of his just rights; and prays that the defendants be required to convey to complainant their interest in said land and timber, and also for general relief.
The bill was taken as confessed by defendants Combs and Denfield. Mason answered, stating that he had conveyed to defendant Wilson, and disclaimed all interest. Wilson answered the bill. He admits the execution of the deed of October 3, 1885; that Combs & Wilson were real-estate agents doing business in East Saginaw; denies that they ever acted as agents for the complainant; claims they had a written option from complainant to purchase the timber; denies that complainant ever instructed Combs & Wilson to sell for cash; but asserts that it was always understood that a portion of the purchase price should be on time; asserts that the deed was executed to Denfield and Mason to avoid family difficulties between Combs, who was Merrill's son-in-law, and Mr. Merrill; that Denfield represented Combs' interest, and Mason his own, and that Denfield and Mason merely held the title in trust for Combs & Wilson; and denies all intent to cheat and defraud or harm in any manner said complainant; denies that he sent the telegram alleged in the bill, and asserts that he sent the telegram following: Says Combs & Wilson, relying upon the option which they held from Merrill, negotiated a sale to Foss and Leiter, before the deed of October 3d was executed, for part cash and part on time; and, when he sent the telegram, he did it with the intention and for the sole purpose of having said deed forwarded through some reliable bank in the city of East Saginaw, where the same might be kept until the payment of the purchase price thereof; that he believed the said Merrill would follow the instructions and statement set forth in the telegram; says that the deed was delivered to Denfield and Mason, and they, at the request of Combs & Wilson, executed a conveyance of a portion of the timber deeded to them to Foss and Leiter, and consented that Combs & Wilson should take back a mortgage to secure the balance of the purchase price, and permitted Combs & Wilson to receive the down payment of $3,000; admits that the timber on 320 acres remains undisposed of; that complainant has received $3,856 of the purchase price, and that $1,000 yet remains to be paid to him according to the terms of his deed; and that it has not been paid owing to a difficulty arising between himself and partner, Mr. Combs; asserts that he is the owner in fee-simple of an undivided half of the timber upon the unsold 320 acres of land, and that he is ready, willing, and in his answer offers to pay into court, or to Merrill, "all sums which a court of competent jurisdiction may decree to be due to said William Merrill as the balance of the purchase price of said lands so purchased by said Combs & Wilson;" alleges that complainant, with a knowledge of all the facts set up in the bill, commenced an action at law against Mason to recover the sum of $1,000, balance of the purchase price of said timber, and that he also prosecuted defendant Wilson for embezzlement of said thousand dollars; alleges that the pine timber was purchased of Merrill upon the express understanding that he should wait until the payment of the mortgage of $2,000 made by Denfield and Mason at the time of the transaction to Merrill, and therefore claims that neither he, nor the firm of Combs & Wilson, owed Merrill anything, as it had not become due; and that the proceeds of the sale to Foss and Leiter was the sole and individual money of Combs & Wilson, with which they could do as they pleased. The court below entered a decree in favor of complainant against defendant Joseph D. Wilson, and dismissed the bill of complaint as to the others. Wilson appeals.
The material facts in the case may be briefly summarized as follows: Combs and Wilson entered into a copartnership in the real-estate business. As a part of that transaction, Combs agreed to pay Wilson $1,000. For this he gave his note on one year's time, indorsed by William Merrill, the complainant. The articles of copartnership bear date October 6, 1884. Merrill was the father-in-law of Combs, and resided at Norwich, in the province of Ontario. He was the owner of about 1,200 acres of land in the northern peninsula of Michigan, mainly valuable for the timber growing thereon. The title to a portion of this land was imperfect, and he had employed Combs & Wilson, and they had acted for him in perfecting such title. Merrill had purchased a portion of the land from one Hyde, but, neglecting to record his deed promptly, Hyde had sold it again, and conveyed it to another party. Combs & Wilson endeavored to secure a settlement with Hyde, and had obtained his note for $1,600, or thereabouts. From the time the partnership was formed, to September, 1885, Combs & Wilson had been endeavoring to sell the lands owned by Mr. Merrill for him, but had not succeeded. Merrill had offered to sell for $6,500 cash, reserving the land, and afterwards, on September 4, 1885, he seems to have made another offer, the particulars of which are not stated; but it called out a letter from Combs & Wilson to Mr. Merrill, dated September 7, 1885, in which they say: They close by asking a definite answer as soon as possible. Merrill answered this letter on September 10, 1885, as follows:
Combs & Wilson were negotiating with Foss and Leiter, of Bay City, for a sale to them of a portion of the Au Train lands. After receiving the above letter of September 10th, Combs & Wilson prepared a deed of the timber upon the...
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