Rothstein v. Weeks

• Decision Date: 01 October 1923
• Docket Number: No. 43.,43.
• Parties: ROTHSTEIN v. WEEKS.
• Court: Michigan Supreme Court

224 Mich. 548

195 N.W. 49

ROTHSTEIN

v.WEEKS.

No. 43.

Supreme Court of Michigan.

Oct. 1, 1923.

Error to Circuit Court, Wayne County; Theodore J. Richter, Judge.

Action by Samuel E. Rothstein against Ira W. Weeks. Judgment for plaintiff, and defendant brings error. Affirmed.

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

Maxwell S. Friendland, of Detroit, for appellee.

STEERE, J.

This action was brought to recover from defendant $500 paid him by plaintiff, tentatively as the latter claimed, on a contract entered into by them for a so-called exchange of real estate which was not consummated.

The parties to the litigation are married men. Plaintiff and his wife owned as tenants by entirety a two-family flat located on Clairmont avenue in the city of Detroit, occupying the lower flat with their family as their home. Defendant and his wife owned as tenants by entirety a six-family apartment brick building located on Alger avenue and a four-family apartment located on Highland avenue in said city.

Negotiations leading up to the written contract involved here were conducted between the two men in plaintiff's place of business, and were somewhat protracted, but on reaching an agreement they went without their wives to both of their attorneys to have it closed. The agreement as related by them was first drawn up by plaintiff's attorney, and submitted to defendant's attorney, who made a few corrections, after which they signed it in duplicate, and plaintiff deposited with defendant $500, as he had agreed to do, before leaving his store, on defendant's suggestion that he take that amount along ‘to close up the deal.’ Of this plaintiff was allowed to testify against objection that he at first protested against putting up the $500 because his wife had not signed, and asked defendant if he should pay $500, and his wife was not satisfied to go through with the proposition, would he get his $500 back, ‘and he said that he was more than good for that. Mr. Weeks agreed to return it. * * * He said it would be all right; if she did not sign, there would be no deal.’

Contemporaneous with their signing the agreement in duplicate, each received a copy, agreeing to take it home for his wife's signature, and exchange copies the next morning. Plaintiff's wife did not sign. He testified that he took the copy he retained home, and requested her to do so, but she refused, because she did not want to part with her home. Defendant's wife signed the copy he took, but when he appeared at plaintiff's store the next morning the latter told him his wife had refused to sign, and demanded his money back ‘because he could not to through with the deal.’ Defendant had some papers with him, and replied he was going to have the abstracts brought down to date anyhow, as she might change her mind, and refused to pay back the $500. In a later interview at which plaintiff's wife was present he would not comply with a request to return the deposit, and plaintiff sued him for it in justice court where he recovered a judgment for the $500. A retrial in the Wayne county circuit court on defendant's appeal resulted in a judgment for the amount in plaintiff's favor on a directed verdict.

The two copies of the contract put in evidence by the parties bear their signatures, and are identical, with the exception that the copy taken by defendant bears his wife's signature, while plaintiff's is only signed by himself and defendant. It is undisputed that for some time before they signed the agreement defendant knew plaintiff and his wife owned the Clairmont property as tenants by entirety, and lived there.

The contract is somewhat lengthy with various provisions which need not be detailed. Its introductory paragraph states that it is a--

‘Memorandum of agreement, made this 26th day of September, 1921, by and between Ira W. Weeks and Lucy M. Weeks, his wife, of the city of Richmond, Mich., parties of the first part, and Samuel E. Rothstein and Emma Rothstein, his wife, both of the city of Detroit, Wayne county, Mich., parties of the second part.’

Through all its provisions the obligations of this instrument are made by or to said ‘parties of the first part’ and ‘parties of the second part.’ The parties who signed the agreement for a so-called exchange were dealing in regard to property which neither had any authority to transfer or bind by contract. They in effect contracted that the parties of the first part should sell their two pieces of real estate to the parties of the second part for $65,000 by two separate land contracts, ‘Union Trust Company form,’ the Alger avenue brick apartment property for $45,000, and the Highland avenue apartment property for $20,000, for which the parties of the second part were, as a first payment, to convey to the parties of the first part a full title in fee to their Clairmont avenue property, subject to a mortgage of $4,900, for a credit of $13,100, with a cash payment of $2,400, making a total credit of $15,500, $5,500 to be applied on the Highland avenue contract, and $10,000 on the Alger avenue contract, agreeing that by those contracts they would pay on the unpaid balance of $49,500 at least $145 per month, with interest on unpaid balances, and in addition $250 every six months for 5 years ‘the whole purchase price to be paid within ten (10) years or down to mortgage, when second parties will take deed and assume mortgage.’ The two Union Trust Company form land contracts from parties of the first part were to be executed contemporaneously with the full payment of $2,400 cash, and execution of a deed by parties of the second part to parties of the first part for their Clairmont property.

At close of the testimony both parties requested a directed verdict. The justice's return shows plaintiff declared in assumpsit on the common counts, and filed a bill of particulars for $500 paid defendant ‘on a void agreement for exchange of land,’ and retained by the latter ‘without consideration,’ while defendant pleaded the general issue and filed notice of recoupment, claiming $5,000 damages for breach of ‘the contract mentioned in plaintiff's claim filed...