Moore v. Mandlebaum

• Decision Date: 09 July 1860
• Citation: 8 Mich. 433
• Court: Michigan Supreme Court
• Parties: William P. Moore v. Simon Mandlebaum

8 Mich. 433

William P. Moore v. Simon Mandlebaum

Supreme Court of Michigan

July 9, 1860

Heard June 1, 1860; June 2, 1860; June 5, 1860 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Wayne circuit.

The action was upon the common counts in assumpsit. The plaintiff claimed to recover of defendant the sum of $ 13,000 as money had and received by the latter to the use of the plaintiff, on or about August 25, 1853, and interest thereon from that time, as part of the purchase price of certain lands in Houghton county hereinafter described, which it was admitted the plaintiff had owned on and previous to March 23, 1853.

On the trial before a jury, the plaintiff gave in evidence a power of attorney from himself to the defendant, authorizing the latter to sell and convey the said lands for such price as he should think proper; which power of attorney bore date March 23, 1853, and was shown to have been delivered at or about its date to defendant, who immediately sailed for England.

It further appeared that, while in England, the defendant entered into an agreement with Charles M. Wilkins, A. H. Sibley, and S. E. Low, which was produced and proved, and read in evidence, as follows:

"This memorandum of agreement, made the twenty-first day of April, 1853, between Charles M. Wilkins, of 30 Bucklersburg, Alexander H. Sibley, of 19 Duke street, St. James, Samuel Eams Low, of 13 Kings Arms Yard, London, and Simon Mandlebaum, of Eagle River, lake Superior, witnesseth:

"That said Mandlebaum is by power of attorney from William P. Moore, bearing date the 23d March, 1853, duly authorized to dispose of a certain tract of mineral ground described as follows, viz.: about 80 acres in section 19, 400 acres in section 30, and 160 acres in section 29, town 55, range 33 west, being in all 640 acres of mineral land on Portage lake, lake Superior; that the purchase price of the said tract is # 10,000; that in order to secure the said tract, it is agreed that said Mandlebaum shall, if necessary, pay to the owner of the said tract # 500 for a refusal during a period of six months; that the refusal being obtained, said Mandlebaum is authorized to draw on Wilkins, Truefit & Co., of 30 Bucklersburg, London, the following sums, viz.: # 500 at one day's sight, # 500 at ten days' sight, and # 500 at twenty days' sight, # 500 at thirty days' sight, and # 500 at sixty days' sight, making in all the sum of # 2,500, which drafts said Wilkins agrees shall be duly honored on presentation, and paid at maturity. The advance of # 2,500 thus made by said Wilkins, is for the purpose of enabling said Mandlebaum to pay the sum of # 500, if necessary, for the refusal aforesaid, and # 100 for a preliminary examination of the tract. This sum of # 600 is the entire amount of absolute outlay that the parties hereto agree to expend; the said sum being deemed sufficient to fairly test the quality of the mineral ground, and enable the said Mandlebaum to decide whether the purchase of the tract shall be made or not. Should the examination of the ground prove unsatisfactory, and the said Mandlebaum should in consequence decline to purchase, then the sum of # 2,500 advanced by said Wilkins shall be returned to him by the remaining parties to this agreement, so soon as the decision of said Mandlebaum not to purchase the said tract is communicated to said Wilkins in London, excepting, however, the sum of # 150, which is one-fourth part of the preliminary expenses incurred in this undertaking, and which sum said Wilkins agrees absolutely to relinquish in the event of the purchase of the tract not being made, or otherwise a fourth part of any less sum than # 600 that such preliminary expenses may amount to.

"If, after the investigation of the property by said Mandlebaum, he shall be satisfied with the same, he shall forthwith enter upon a contract with the owner of said tract for the purchase thereof, for a sum not exceeding # 10,000 (ten thousand pounds), and the said Mandlebaum shall bind himself to pay the owner aforesaid the # 2,000 advanced by said Wilkins, and shall immediately send the title deeds of the property to London, where they shall be placed at the disposal of said Wilkins, who shall, conjointly with the other parties to this agreement, proceed to form a company with ample capital to pay off the balance of the purchase money within the time specified by the contract, and for the efficient working of the mineral tract aforesaid.

"When the whole amount of the purchase money shall have been paid, then out of the first moneys received thereafter said Wilkins shall be re-imbursed his advance of # 2,350, and all profit over and above this sum, whether in money or in shares, shall be equally divided between the parties to this agreement so soon as such money and such shares are paid over by the contemplated company. It is agreed that any loss growing out of this undertaking shall be borne equally by the parties signing this agreement."

[Signed by the parties.]

The counsel for said plaintiff then produced witnesses by whom he offered to prove:

That said Mandlebaum accepted said power of attorney, and agreed to act as such agent, and to use his best endeavors to sell and dispose of said lands as therein and thereby authorized, but was expressly instructed by the plaintiff not to sell said lands for less than Columbus C. Douglass should estimate them to be worth, and was at the time informed that said Douglass, by a written certificate, estimated them to be worth thirty thousand dollars; that after the signing of said memorandum of agreement in London, and before leaving there for Michigan, the said Wilkins, Sibley and Low placed in the hands of said Mandlebaum the sum of at least two thousand dollars, for the purpose and with the intent that he should, as mentioned in said agreement, obtain therewith the refusal of said lands for six months.

That the said defendant then returned to Detroit, where he arrived on or about the tenth day of May, in the year aforesaid, having said memorandum of agreement in his possession; that on that day he had an interview with the plaintiff in Detroit, in which interview he represented to the plaintiff that he had been in London; that he had there sold or agreed to sell to certain persons (not naming them), the said lands, for the sum of $ 22,000; that that was the most he could get for them owing to the fact that said Douglass's certificate and estimate of their value was not sufficiently full and explicit; that he had received from said persons $ 2,000 down as part payment for said lands, and was ready to pay over the same to the plaintiff; that by his arrangement made with said persons it was necessary for him to have an absolute deed for said lands, to enable him to consummate the bargain; that in order to insure to the plaintiff the payment of the remaining $ 20,000 by said persons within six months, he would himself execute back to said plaintiff a mortgage on said lands, conditioned to pay him the $ 20,000 within six months, and that unless said parties should pay said plaintiff said sum within that time, the said Mandlebaum would reconvey the lands to said plaintiff, and that said sum of $ 2,000 should, in that case, be forfeited.

And plaintiff's counsel further offered to show that said defendant did not in said interview, nor at any time thereafter, make known to plaintiff the fact that he had entered into such agreement, and that he had agreed with said Wilkins, Sibley and Low not to make said memorandum of agreement, or the contents thereof, known to said plaintiff.

And the plaintiff's counsel further offered to prove that said plaintiff, being deceived as to the true state of the facts as exhibited by said agreement and by the false representations made to him by said defendant, consented to accept said $ 2,000, and to give defendant an absolute deed of said lands for the purpose of enabling him to carry out and consummate the pretended arrangement with said persons in London; that said deed was executed, acknowledged and delivered accordingly, and that said Mandlebaum executed, acknowledged and delivered to said plaintiff a mortgage on all said lands, of the same date, conditioned for the payment of $ 20,000 in six months from its date; that no bond, note or other security was given by said Mandlebaum to which said mortgage was collateral.

That at the same time, at the request of said Mandlebaum, and as a part of the same transaction, said plaintiff gave to him the following receipt:

"Received, Detroit, May 10th, 1853, of Simon Mandlebaum, Esq., two thousand dollars, being part of the purchase money of certain lands in the county of Houghton, state of Michigan, which I have this day conveyed to said Mandlebaum, and on which he has given me a mortgage conditioned for the payment of twenty thousand dollars in six months from the date hereof, and in case of failure on the part of said Mandlebaum to pay the said sum of twenty thousand dollars at the time mentioned in said mortgage, the lands conveyed to revert to me, the said Moore, and the sum of two thousand dollars mentioned in this receipt to be forfeited and remain the property of me, said Moore, the same being liquidated damages for the failure of said Mandlebaum to fulfill the conditions of the mortgage aforesaid.

"William P. Moore."

The plaintiff's counsel further offered to prove that immediately after the giving of said deed, mortgage and receipt, said Mandlebaum drew five drafts upon Wilkins Truefit & Co., London, to the amount of # 2,500, founded upon the said articles of agreement, and sent said drafts forward for collection, but all which drafts...