Nolan v. Swift

• Decision Date: 04 December 1896
• Citation: 69 N.W. 96,111 Mich. 56
• Court: Michigan Supreme Court
• Parties: NOLAN v. SWIFT ET AL.

69 N.W. 96

111 Mich. 56

NOLAN v. SWIFT ET AL.

Supreme Court of Michigan

December 4, 1896

Error to circuit court, Wayne county; William L. Carpenter, Judge.

Action by John E. Nolan against Edward Y. Swift and others. There was a judgment for plaintiff, and defendants bring error. Affirmed.

Gray &amp Gray (John D. Conely, of counsel), for appellants.

T. E Tarsney and W. W. Wicker, for appellee.

HOOKER J.

Fisher and Seligman owned certain city lots in common, adjoining other real estate owned by Fisher in the city of Detroit; and Fisher gave to the plaintiff, Nolan, an option to purchase his interest in both for $450,000, for the period of 30 days. This writing is alleged to have been made on December 8, 1891, and on January 9, 1892, it was extended in writing until February 1, 1892. There is nothing to show that it was extended longer, unless it be a letter from Gray Fisher's son-in-law, written by Fisher's direction and dictation on February 5th. It is as follows "February 5th, 1892. Jno. E. Nolan, E. Saginaw-Dear Sir: I am requested by Mr. A. C. Fisher to notify you that unless a sale of his entire interest or division is made, with Mr. J. Seligman or others, before Saturday night, 6th inst., all obligation on his part, or extension of option with you for sale of the property (his interest in Fisher Block and adjoining property), will cease. Chas. B. Gray." On February 5th, being the same day that this letter was written, Nolan, who had been for several days endeavoring to persuade Seligman to agree on a division and purchase of the property, succeeded in obtaining a promise-presumably oral-from Seligman that he would take Fisher's individual property and a portion of that held in common, giving to Fisher the remainder of the property held in common, and $100,000. Nolan thereupon went to Detroit, and on Monday following (being the 8th of February) Seligman followed, and had an interview with Mr. Gray, who is shown to have been the authorized representative of Fisher, in the presence of Nolan and others and one Doyle, who was present in the interest of Seligman. Mr. Gray then and there said that the price was $125,000, instead of $100,000; and Doyle testified that Seligman said that he would not pay it, and the deal ended then and there, and that the next day he (Doyle) went to the house of Fisher, who was sick, and, after working all day with him, prevailed on him to accept $100,000, and the deal was closed upon the terms talked at Saginaw between Seligman and Nolan. This action is brought by Nolan to recover a commission of 2 per cent. on the amount involved in the transaction (that being the usual commission charged on sales of real estate in Detroit), and he received a judgment for the amount claimed. The case is before us on error assigned upon the charge.

Fisher died before the case was tried, and the plaintiff gave no testimony as to what occurred between them. In addition to the testimony stated, Gray testified that he knew at the time he wrote the letter of February 5th that there was an arrangement between Nolan and Fisher, and that what Nolan was doing he was doing for Fisher, and that he was negotiating with Seligman.

The charge contained the following: "Gentlemen of the jury if the plaintiff was authorized by the defendants' testator to procure a purchaser in Mr. Seligman, by dividing this land, and if, before that authority was revoked, he brought about a division satisfactory to Mr. Fisher, then he is entitled to be compensated for what his services were reasonably worth. Now, we have no evidence of what the arrangement between Mr. Nolan and Mr. Fisher was. So far as the writings were concerned, that expired on the 1st of February. They do not control this transaction. Was there an arrangement made between them which continued after the 1st of February, and was it in existence on the 9th day of February? The only evidence that there existed any such arrangement is contained in this letter of February 5th, the terms of which are entirely familiar to you. I will read that letter to you, because it is the only evidence of the existence of any agreement between them after that date,-the 1st of February. It is dated February 5, 1892: 'John E. Nolan, Esq., East Saginaw-Dear Sir: I am requested by A. C. Fisher to notify you that unless a sale of his entire interest or division is made, with J. Seligman or others, before Saturday night, the 6th inst., all obligations on his part or extension of option with you for sale of the property (his interest in Fisher Block and adjoining property) will cease. Very truly yours, Charles B. Gray.' Now, I say to you that the only evidence in this case of any arrangement between these parties exists in that letter, because Mr. Nolan cannot testify, and does not assume to testify, to any arrangement, his mouth being stopped by the statute. Mr. Fisher cannot testify, because, of course, he is not here. Now, was there such an arrangement? That is for you to say. It is for you to say what inference is to be drawn from this letter. If there was no arrangement, or if that arrangement ended on the 6th of February, 1892, there could be no recovery. So that you must find, in order to render a verdict for the plaintiff, that there was an arrangement after the 1st of February, continuing up to the time this deal was consummated, which the testimony shows was the 9th of February. If there was such an arrangement, was it revoked? The testimony is undisputed that on the 5th of February this letter was written and mailed, but I charge you that a revocation would not be conclusive unless this letter, or knowledge of this letter, or knowledge of the revocation, in some way reached Mr. Nolan before this deal was made. The testimony of Mr. Nolan is that this letter did not reach him until Thursday after the deal was...