Smith v. Kemp

• Decision Date: 17 June 1892
• Citation: 92 Mich. 357,52 N.W. 639
• Court: Michigan Supreme Court
• Parties: SMITH et al. v. KEMP.

52 N.W. 639

92 Mich. 357

SMITH et al. v. KEMP.

Supreme Court of Michigan

June 17, 1892

Error to circuit court, Chippewa county; JOSEPH H. STEERE, Judge.

Suit by Charles R. Smith and William S. Smith against George Kemp upon an agreement for the sale of a one-third interest in an hotel. Judgment for plaintiffs. Defendant brings error. Affirmed.

H M. Oren and E. S. B. Sutton, for plaintiffs in error.

Goff & Cady, for defendants in error.

MONTGOMERY J.

The court below directed a verdict for the plaintiffs in the sum of $4,485.33, upon the following memorandum of agreement "This memorandum, made this 17th day of September, A. D 1886, by and between Charles R. Smith and William S. Smith, of Cheboygan, and George Kemp, of Sault Ste. Marie, all of the state of Michigan, witnesses as follows: The said Charles R. and William S. Smith are at present the owners of the hotel known as the 'Mullet Lake Hotel,' situated on Mullet lake, Cheboygan county, Mich and hereby sell to the said George Kemp an undivided one-third interest in said hotel, and its furniture and fixtures, as it now stands, for the sum of four thousand dollars, to be paid as hereinafter stated. The said George Kemp hereby agrees to purchase an undivided one-third interest in said hotel, furniture, and fixtures, as aforesaid, for the sum of four thousand dollars, and to pay the same on or before three years from the date of this agreement. It is further agreed between the parties hereto that they shall take down the said hotel, and remove and rebuild the same in the village of Sault Ste. Marie, and to own and operate the same jointly, each to be liable for one third of the expense of said taking down, removing, and rebuilding, the purchase of a site, and all other expenses of the enterprise, and to share equally in the profits or losses resulting from the same. [Signed] CHARLES R. SMITH. WILLIAM S. SMITH. GEORGE KEMP." The defendant offered to show that the parties had removed the building to the village of Sault Ste. Marie, as contemplated in the agreement, and had engaged in the business of keeping an hotel, and that the profits on the business had amounted to sufficient so that the share thereof belonging to the defendant would more than pay the purchase price of his interest in the hotel as agreed. He also offered to show that after the agreement was prepared, and before it was signed, a conversation occurred between the defendant and the plaintiffs, in which it was agreed by the plaintiffs that they were willing to take out of the profits of the defendant's share of the business which might arise during the three years an amount up to the...