Peninsular Stove Co. v. Crane

• Decision Date: 05 March 1924
• Docket Number: No. 4.,4.
• Parties: PENINSULAR STOVE CO. v. CRANE et al.
• Court: Michigan Supreme Court

226 Mich. 130

197 N.W. 693

PENINSULAR STOVE CO.

v.CRANE et al.

No. 4.

Supreme Court of Michigan.

March 5, 1924.

Appeal from Circuit Court, Wayne County in Chancery; Henry A. Mandell, Judge.

Suit by the Peninsular Stove Company against Charles S. Crane and others. Decree for plaintiff, and named defendant appeals. Affirmed.

Argued before CLARK, C. J., and McDONALD, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ.Hugh A. McCann, of Detroit, for appellant.

Lucking, Helfman, Lucking & Hanlon, of Detroit, for appellee.

STEERE, J.

This suit is for foreclosure of a mechanic's lien for material and labor furnished by plaintiff in performance of a contract with the Haley-Kennedy Construction Company to install a heating plant in a building the latter was erecting in 1917 on Logan avenue in the city of Detroit.

The building was being constructed by the Haley-Kennedy Construction Company under a contract with George H. Elward (variously spelled in the record) and wife, who originally owned the lot upon which the building contracted for was to be erected. For furtherance of the building project they on June 29, 1917, gave a warranty deed of the lot to the construction company, which on the same date contracted to sell back the property to them with the completed building upon it. The exact terms of that contract are not clearly shown, but defendant Crane elucidated the subject and his intervention in part as follows:

‘He (Elward) paid $7,000 for the property. They gave him $1,350 credit for the lot, $1,300 or $1,350, and then he made two or three payments, and I think there was a balance at the time I took it over of something like $5,600; the amount of money I was putting in I was to get 10 per cent. and take over the deed subject to this contract-the property complete. * * * I could not say where that contract is. When I went into this transaction I had faith in Haley-Kennedy. * * * They were to give me an assignment of the contract they had, to collect the money from Elward. * * * I also knew that Elward once owned the lot and that he had deeded it to Haley-Kennedy Company for the purpose of having a house or a structure erected thereon, and that he was to buy it back for a sum of a little over $7,000.’

On July 20, 1917, the Haley-Kennedy Construction Company gave Crane a warranty deed of the property, free and clear of all incumbrances except a certain contract for sale thereof by Haley-Kennedy Construction Company to George H. Elward and wife, dated June 29, 1917.

On July 11, 1917, the Peninsular Stove Company submitted a bid to the Haley-Kennedy Construction Company, then a copartnership, to install a heating plant in this building, which was accepted. On or about July 26, 1917, performance of the contract was commenced by plaintiff, and finished on November 3, 1917.

In its agreement with Crane the Haley-Kennedy Construction Company was to finish the building, ‘and did finish it as per plans and specifications,’ as Crane testified. The firm which by that name engaged to construct the building consisted of Robert B. Haley and Harry B. Kennedy, who filed a certificate of copartnership in the office of the Wayne county clerk on May 26, 1917, showing they were doing business as copartners under that name; but on July 9, 1917, they filed articles of incorporation under the same name, in the office of the secretary of state, and in the office of the county clerk of Wayne county on July 16, 1917, showing that the incorporators were Robert B. Haley, Harry B. Kennedy, and Elihu R. Day.

On December 26, 1917, plaintiff filed its statement of account and claim of lien for the work done and material furnished with the register of deeds of Wayne county, and on January 4, 1918, served a copy of the same upon defendant Crane, the owner of record of the property against which the lien was filed. This suit was thereafter brought to enforce said lien, the amount claimed being $300 with interest at 5 per cent. from October 29, 1917.

After the case was heard, on September 23, 1920, briefs were filed by counsel and the case submitted. A written opinion was filed by the court and decree rendered on January 26, 1921, adjudicating a lien on said premises in favor of plaintiff amounting to $348.50, and foreclosure of the same was decreed as prayed for. Defendant Crane appealed.

A record of the case settled for appeal, certified in regular form by the trial judge who heard it, was duly filed in this court. It contained, amongst other things, the findings and opinion of the court on which the decree appealed from was based, and a signed ‘stipulation of counsel as to agreed facts upon appeal’ as follows:

‘It is hereby stipulated by and between the above Peninsular Stove Company, plaintiff, and Charles S. Crane, defendant, by their respective attorneys, that, for the purpose of appealing the above-entitled cause to the Supreme Court, for a determination of the rights of the respective parties herein, the following is a full statement of all material facts of the matter at issue.

‘Dated at Detroit, Mich., this 15th day of November, 1921.’

The opinion of the trial court introductorily states of the facts found, ‘It appears from the proofs and stipulated facts that,’ etc., of which it is said in defendant's brief, ‘there is nothing in the record that indicates any stipulation of facts.’

This contention is destitute of merit. Not only is the stipulation above quoted in the record, but it appears such claim was first squarely made in this court after return on appeal was filed. It was strenuously insisted that the trial court acted under a mistaken assumption that the facts found were stipulated, while in truth they were not, and it was plausibly urged that defendant in all fairness was ‘entitled to have said record in the Supreme Court exactly as it was made and taken in said circuit court.’ Without going into details, it is sufficient to say that not being able to reconcile statements in affidavits of opposing counsel the case was remanded fr an amended or further return, which was made.

From the record now before us it appears that on the hearing defendant, an attorney of 20 years' experience in the various courts of record, as he deposed, professionally conducted his own defense. When the case was called and counsel responded, the court, as is frequently done to expedite the trial and reach the actual issues when experienced counsel represent parties in a case before the court without a jury, suggested:

‘Perhaps it would be as well if one of you would make a statement of the facts, then the other side can state his, also. There should be a statement of facts of record.’

No objection to this course being offered by either side, counsel for plaintiff proceeded with a statement of the nature of the case, who the parties were, how the controversy arose, various steps taken as shown by matters on file or of record, giving dates, telling where found, apparently referring to and reading from papers, on occasion answering or asking questions of defendant, who did not then or later during the trial question the correctness of those facts which appear in this record as undisputed, or stipulated. Although then given an opportunity by the court to do so, he made no further statement of the facts as attorney, nor did he when on the stand as a witness point out the inaccuracy of any statements by plaintiff's counsel as to the facts treated by court and counsel as stipulated. His testimony is confirmatory of some of them, while others are alleged in the bill and admitted in the answer. The trial court certifies of this claim in the supplemental record returned as follows:

‘After the hearing of said cause and prior to the filing of the opinion, plaintiff filed a motion for a decree and two briefs in support thereof, in all of which it was assumed that the statement of facts appearing in the record was stipulated to by both parties. In reply thereto the defendant, Charles S. Crane, filed a motion to dismiss the bill and a brief supporting the same, which papers consisted of a total of eight typewritten pages, and in said motion and brief the said Charles S. Crane did not call my attention to any claim on his part that the plaintiff had failed to prove the elements of his case, nor that any of the essential...