Mizner v. Kussell
| Decision Date | 28 April 1874 |
| Citation | 29 Mich. 229 |
| Court | Michigan Supreme Court |
| Parties | John Mizner v. Philip Kussell and another |
Submitted on Briefs April 22, 1874
Appeal in Chancery from Muskegon Circuit.
Bill to set aside a mortgage. Complainant appeals. Affirmed.
Decree affirmed, with costs.
Gray Smith & Nims and Eggleston & Kleinhans, for complainant.
Edwin Potter and Cleaveland Hunt, for defendants.
Graves, Ch. J. did not sit in this case.
The bill in this case was filed to set aside a mortgage given by complainant to defendants, which they were attempting to foreclose. The complainant claims that it was given in consideration of goods to be advanced, which defendants never furnished. The facts were in substance as follows:
In November, 1866, complainant was in Chicago, desirous of purchasing a further stock of goods from defendants, of whom he had before bought a considerable amount, of which something over $ 900 had not been paid for, and most of the amount was to run some time longer. There is no conflict upon the fact that the subject of making further sales on credit was discussed, or that it was contemplated they would be made upon satisfactory mortgage security. It is also beyond dispute that defendants were to send an agent to Muskegon to take such security if satisfactory. There is a direct conflict as to whether the securing defendants on their existing debts was the only, or was any condition of the arrangement, and as to whether defendants were to be bound to make further sales.
An agent named Doty went to Muskegon, and while there took a chattel mortgage for one thousand dollars and a land mortgage for one thousand five hundred dollars, the latter being payable in 1867, with interest at ten per cent. The chattel mortgage recites that it is given to secure payment of the indebtedness already existing, and contains no specific conditions defining the debt, but secures it as something known. The real estate mortgage is in the ordinary form of a mortgage to secure a promissory note.
The land mortgaged was held by complainant under an executory contract from one Sanford, and was not paid for, there being one thousand dollars back. In order to enable complainant to mortgage it, Sanford deeded it to him upon the promise of a sufficient amount of the goods which defendants were to forward complainant, to pay up the purchase money.
The story that Doty tells is, in brief, that he was sent to get security for the existing debt, as the main purpose of his visit, and if complainant could give a good mortgage on a saw-mill property which should be worth seven thousand dollars, to take such mortgage to cover the existing debt and any future...
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Nowlin v. Snow
...R. Co., 40 Barb. 550; Ernst v. Hudson R. R. R. Co., 35 N.Y. 9; one is responsible for a belief which he intentionally creates, Mizner v. Kussell, 29 Mich. 229; so also if statements are false in fact, but believed by the person making them and relied on by the one to whom made, Webster v. B......
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Cahill v. Readon
... ... 507; Parks v. Burbank, 58 ... Iowa 707, 12 N ... [273 P. 656.] ... W. 729; ... Lee v. Lemert, 26 Kan, 111, Brewer J.; Mizner v. Kussell, 29 ... Mich. 229; Gerner v. Yates, 61 Neb. 100, 84 N.W. 596; ... Lomerson v. Johnston, 47 N.J.Eq. 312, 20 A. 675, 24 ... Am.St.Rep ... ...
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Hamilton v. Billingsley
... ... 1), and the impression arising from words ... and conduct is not to be ignored by resorting to the literal ... meaning of the language: Mizner v. Kussell 29 Mich ... 229; still in a suit on a contract defendants cannot set up ... fraud unless they were really deceived (Whiting v ... ...
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Sullivan v. Ulrich
...and will be precluded from profiting by any unconscionable use of an obligation which has been thus wrongfully obtained.' Mizner v. Kussell (syllabus), 29 Mich. 229. 'Designed partial statements which deceive, and concealment of facts such as to make those declared partial and misleading, a......