Mitchell v. Reolds Farms Co.

• Decision Date: 18 September 1934
• Docket Number: No. 78.,78.
• Parties: MITCHELL v. REOLDS FARMS CO.
• Court: Michigan Supreme Court

268 Mich. 301

256 N.W. 445

MITCHELL

v.REOLDS FARMS CO.

No. 78.

Supreme Court of Michigan.

Sept. 18, 1934.

Appeal from Circuit Court, Ingham County; Leland W. Carr, Judge.

Action by Edward H. Mitchell against the Reolds Farms Company, a Michigan corporation. Judgment for plaintiff, and defendant appeals.

Reversed and remanded, with directions.

Argued before the Entire Bench.Kelley, Sessions, Warner & Eger, of Lansing, for appellant.

Shields, Silsbee, Ballard & Jennings, of Lansing, for appellee.

POTTER, Justice.

The facts in this case were sufficiently reported when it was here in 255 Mich. 240, 238 N. W. 204, and 261 Mich. 615, 247 N. W. 89. Plaintiff's declaration consists of two counts, one upon written contracts annexed thereto and the other upon the common counts in assumpsit. When the case was here in 255 Mich. 240, 238 N. W. 204, it was reversed. The sole question presented was whether plainiff was properly denied the right to give testimony to establish his cause of action under the common counts of the declaration. Mitchell v. Reolds Farms Co., 261 Mich. 615, 247 N. W. 89. When the case was last here, it was reversed because defendant was denied the right to introduce proof tending to show the houses had not been sold after unsuccessful efforts to sell them over a period of more than three years; real estate values had shrunken; the house had depreciated in value; and plaintiff had suffered no damages. Plaintiff recovered judgment for $5,794.94. Defendant appeals, claiming the court erred in refusing to grant defendant's motion for judgment notwithstanding the verdict, and, in the alternative, in refusing to grant defendant's motion for a new trial; the verdict was excessive and against the great weight of the evidence; the court erred in refusing defendant's request to charge regarding the measure of damages, and failed to properly instruct the jury respecting the damages and measure thereof; in receiving in evidence the statutes of Florida showing the rate of interest in that state; in allowing defendant to be examined as to the volume of its business; and in permitting plaintiff's Exhibit 1 to be received in evidence; and the arguments of counsel for plaintiff were so prejudicial and unfair as to constitute reversible error.

1. Recovery could not be had under the common counts in assumpsit for breach of the written contract between the parties. Butterfield v. Seligman, 17 Mich. 95;Phippen v. Morehouse, 50 Mich. 537, 15 N. W. 895. Nor could recovery be had, under the common counts, of damages for preventing plaintiff from carrying out the contract. Hamilton v. Frothingham, 59 Mich. 253, 26 N. W. 486, in effect overruled in Mooney v. Iron Co., 82 Mich. 263, 46 N. W. 376. The only tenable theory of recovery under the common counts is that the parties engaged in a joint enterprise, and, after plaintiff had fully performed the contract on his part, and built the houses in question, defendant, in pursuance of the contract, sold the same and converted them, and the proceeds arising from the sale thereof to its own use and benefit to the exclusion of plaintiff, and has not accounted for or paid over to plaintiff the part of the proceeds of such sale to which, under the written contracts, he was entitled, and, nothing remaining to be done but to pay to plaintiff his share of the proceeds of such sale, recovery may be had on the common counts. Begole v. McKenzie, 26 Mich. 470;Flint & P. M. R. Co. v. Wayne Circuit Judge, 108 Mich. 80, 65 N. W. 583.

2. It is contended the parties engaged in a joint enterprise are to be regarded as partners, and consequently plaintiff may not maintain this action against defendant. Keiswetter v. Rubenstein, 235 Mich. 36, 209 N. W. 154, 48 A. L. R. 1049;Johnson v. Ironside, 253 Mich. 428, 235 N. W. 209;Frank v. American Trust Co., 259 Mich. 394, 243 N. W. 240;Carson v. Exchange Trust Co., 127 Okl. 55, 259 P. 857; but, in McCreery v. Green, 38 Mich. 172, it was held that, in a proper case, one joint adventurer could recover damages in assumpsit against another coadventurer, and a similar rule was followed in Wallace v. Noble, 203 Mich. 58, 168 N. W. 984. The general rule sustained by many authorities is thus stated in 33 C. J. 866: ‘A member of a joint adventure who has been injured by a breach of contract by his associate, or by the latter's conversion to his own use of the joint property or some part of it, * * * may, in a case where the amount of plaintiff's claim is capable of ascertainment and computation by a jury, bring an action at law to redress his grievance, and may in such action recover the damages which he has suffered from the injury alleged.’

3. There could be no recovery until defendant sold the property and converted it, or the proceeds thereof, to its own use and benefit; but, upon the sale and conversion of the property in which the parties were mutually interest by defendant, the law implies a promise by defendant to account and pay over to its associate or coadventurer the share of the proceeds of the venture to which he was entitled. 33 C. J. 866.

4. There was testimony which warranted a finding defendant had money or property in its hands as a result of the sale or trade of the houses in question. A verdict could not have been properly directed for defendant.

5. It is claimed plaintiff may not recover the proceeds of the four houses disposed of in November, 1919, for the reason it was admitted on the former trial these houses had been settled for and such admission is binding here.

‘Where an admission is made on one trial, the admitting party on a second trial is estopped from taking a position inconsistent with that taken on the first trial. Connor v. Railway Co., 168 Mich. 29, 133 N. W. 1003;Johnson v. Cornelius, 200 Mich. 209, 166 N. W. 983, L. R. A. 1918D, 880;Harrington v. Accident Ass'n, 210 Mich. 327, 178 N. W. 19;Hassberger v. General Builders' Supply Co., 213 Mich. 489, 182 N. W. 27.’ Billingsley v. Gulick, 256 Mich. 606, 240 N. W. 46, 47, 79 A. L. R. 166.

This rule is generally recognized. Bigelow on Estoppel (6th Ed.) p. 633; Wetmore v. McDougall, 32 Mich. 276;Henry v. Quackenbush, 48 Mich. 415, 12 N. W. 634;Bassett v. Shepardson, 57 Mich. 428, 24 N. W. 182. Judicial admissions made in one trial in order to be binding upon a second trial must have been intelligently made as a fact, and not merely to expedite the particular proceeding, and must have been deliberately and not inadvertently made. The record shows the admission in relation to the four houses was made on a former trial. Defendant insists this particular point is res adjudicata. Plaintiff says the first case was brought about four years ago, and upon the trial thereof counsel for defendant stated they had checked up, and the four houses had been settled for, and plaintiff proceeded on that assumption in the first case in making the admission. On the second trial, plaintiff discovered the admission was inadvertently made and but one house was settled for.

‘A judicial admission made intelligently and with deliberation establishes the fact with reference to which it is made, and the jury must accept it as so established.’ Connor v. Lake Shore & Mich. Southern Ry. Co., 168 Mich. 29, 133 N. W. 1003, 1005.

The court quoted with approval from Greenleaf on Evidence, par. 186: ‘To this end they must be distinct and formal, or such as are termed solemn admissions, made for the express purpose of alleviating the stringency of some rule of practice, or of dispensing with the formal proof of some fact at the trial. In such cases they are in general conclusive, and may be given in evidence, even upon a new trial,’ and cited 2 Chamberlayne on Evidence, par. 1232; 4 Wigmore on Evidence, par. 2588, and other authorities.

The court was not in error in holding upon a retrial of the case, after reversal, the parties had a right to go into all the facts, and this admission was not conclusive.

Defendant assigns error upon the failure of the trial court to give its request to charge: ‘I further charge you that it is undisputed that the properties identified as lot 2, block 21; lot 6, block 27; and lot 7, block 27, were sold at a price which did not enable the defendant to realize a profit; and said properties not having been sold at a profit over and above the cost of construction, plus the stipulated lot prices, plaintiff is not, therefore, entitled to recover as a result of the sale of said properties.’

The court did not give this request in relation to the three houses and lots above discussed. The court charged the jury it was the duty of defendant in selling these lots to sell them at the prices fixed by the parties and account to plaintiff on the basis of the selling price agreed upon, if it was agreed upon; if, on the other hand, Mr. Bolles and plaintiff did not agree on the selling prices of these lots, failure would not deprive defendant of the right to sell the lots, but it would be the duty of the defendant to sell them, in the absence of any express agreement, at not less than the fair market value thereof. We find no error in this charge.

Defendant contends the court was in error in charging upon the measure of damages. The trial court charged it was the duty of defendant under the circumstances to sell the properties at the prices fixed by Bolles and Mitchell, and, if such prices were not fixed, to sell them at not less than their fair market value. He charged that, if defendant sold the properties for less than the fair market value, then such loss of the difference between the fair market value and the selling price, in case they were sold for less than they should have been sold for, resulting in a loss to defendant, was not binding upon plaintiff, who was to be compensated upon the basis of one-half the difference between the cost of the properties and the fair market value thereof, and not on the basis of one-half the difference between the cost and the depreciated...