Niederhauser v. Detroit Citizens' St. Ry. Co.

• Decision Date: 28 October 1902
• Citation: 91 N.W. 1028,131 Mich. 550
• Parties: NIEDERHAUSER v. DETROIT CITIZENS' ST. RY. CO.
• Court: Michigan Supreme Court

91 N.W. 1028

131 Mich. 550

NIEDERHAUSER v. DETROIT CITIZENS' ST. RY. CO.

Supreme Court of Michigan

October 28, 1902

Error to circuit court, Wayne county; George S. Hosmer, Judge.

Action by John Niederhauser against the Detroit Citizens' Street Railway Company. From a judgment in favor of defendant plaintiff brings error. Affirmed.

Moore & Mmore (Edwin C. Bolton and Henry B. Shaw of counsel), for appellant.

Brennan Donnelly & Van DeMark and Henry L. Lyster, for appellee.

MOORE J.

This suit was brought for the purpose of recovering for injuries received by plaintiff while a passenger on a street car owned by defendant. The circuit judge directed a verdict in favor of defendant. The case is brought here by writ of error. It is the contention of plaintiff that he had a claim against defendant for injuries received by him October 26, 1899; that on November 1, 1899, he made a written agreement with Mr Bolton, a lawyer, to collect said claim, and assigned him one-half thereof in consideration of his services. He also claims that Mr. Bolton had negotiations with the representatives of the company for a settlement, and was offered $1,300 unconditionally for a settlement of the claim and $2,000 if certain conditions existed. Defendant denied that any such offers were made. It is the further claim of plaintiff that by means of false representations and concealments of what had occurred between his attorney and the representatives of the company he was induced on December 5, 1899, to settle his claim in full for $800. Defendant denies there was any fraud used to bring about this settlement, but insists plaintiff voluntarily and freely made it. It is the claim of plaintiff that when he learned from Mr. Bolton the exact facts he repudiated the settlement. Afterwards this suit was brought, and, as before stated, a verdict was directed by the circuit judge, who was of the opinion that no fraud had been shown in making the settlement. A great many questions are raised by counsel which we do not deem it necessary to discuss, as we think plaintiff has failed to put himself in a position to maintain this suit. The law is well settled that, if one seeks to rescind a settlement on the ground of fraud or mistake, he must, after discovering the fraud, place the other party in statu quo. Jewett v. Petit, 4 Mich. 508; Criffen v. Hope, 38 Mich. 344; Pangborn v. Insurance Co., 67 Mich. 683, 35 N.W. 814. Counsel claim plaintiff did this by tendering back the money to defendant, while defendant denies that any sufficient tender was made. The testimony bearing upon that point is brief, and we quote it. Plaintiff testified: 'I was never at the railway office but once. That was some day or so after I received the money. I went there with Mr. Bolton. * * * Q. You got $800, of which you paid $150 to your physician? A. Yes, sir. Q. And you have used that $650? A. Yes, sir. * * * Q. You said that you were in the street railway office the next day with Mr. Bolton? A. I think it was the next day or two afterwards. Q. What did you go down there for? A. To tender the money. Q. Who told you to do that? A. Mr. Bolton. Q. You were satisfied to take the money the day before, weren't you? A. I was the day before. Q. And Mr. Bolton told you the next day to go down and pay the money back? How much of the money did you have that next day? A. I think Mr. Bolton had the money. Q. Oh, you think he had the money? A. I don't know. I did not see it. Q. Where was your money? A. My money was in the bank. Q. In the bank? You never took your money back to tender any money, dod you? A. They did not ask me to. Q. Who? A. Mr. Bolton. Q. You did not see any money with Mr. Bolton, did you? A. No, I did not see any. Q. And there was no money tendered to anybody, was there? A. Not that I know of or saw. Q. No, you did not see any money tendered back, but you think Mr. Bolton had the money. How do you know he had the money? A. Well, all I know is, he says, 'You come with me,' and he says, 'We will tender that money back.' Q. Didn't he tell you, too, that Mr. Hutchins would refuse the money? A. No, sir. Q. Did not Mr. Hutchins ask him to let him see the money? A. He asked. He refused it, and as we was going out he says, 'Let's see the money.' Bolton says, 'You refused it once.' Bolton did not show him any money, that I seen. I think I would have seen it if he had shown any.' Mr. Bolton's version of what occurred is as follows: 'Mr. Niederhauser, Mr. Hubbard, and myself went down to the Detroit Citizens' Street Railway Company at 12 Woodward avenue, and met Mr. Hutchins. Before going down there, we had arranged for raising money. We had arranged for tendering back to Mr. Hutchins--to the railway company--that $800, and whatever--There was a little interest, or whatever there would be on it. I did not take the money with me. When we got to Mr. Hutchins' office, we met Mr. Hutchins, and I told...