Stamp v. Banninga

• Court: Michigan Supreme Court
• Writing for the Court: MOORE
• Citation: Stamp v. Banninga, 221 Mich. 268, 191 N.W. 25 (Mich. 1922)
• Decision Date: 29 December 1922
• Docket Number: No. 76.,76.
• Parties: STAMP v. BANNINGA.

221 Mich. 268

191 N.W. 25

STAMP

v.BANNINGA.

No. 76. ^*

Supreme Court of Michigan.

Dec. 29, 1922.

Error to Circuit Court, Muskegon County; John Vanderwerp, Judge.

Suit by Sidney L. Stamp against John H. Banninga. Judgment for plaintiff, and defendant brings error. Affirmed.

Argued before FELLOWS, C. J., and WIEST, McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ.Edward C. Farmer, of Muskegon, and John M. Dunham, of Grand Rapids, for appellant.

F. E. Wetmore, of Hart, for appellee.

MOORE, J.

It will be helpful to an understanding of the litigation involved in this proceeding to read the opinions in Re Keene's Estate, 189 Mich. 97, 155 N. W. 514, Ann. Cas. 1918E, 367; Re Keene's Estate, 202 Mich. 646, 168 N. W. 943;Stamp v. Steele et al., 209 Mich. 205, 176 N. W. 464.

While reading these opinions, it will be well to remember that the Frank Maynard mentioned in the first-named opinion, and the Sidney L. Stamp mentioned in the last two cases, is one and the same person.

After the opinion in 209 Mich. 205, 176 N. W. 464, was handed down, Mr. Stamp commenced the case now before us. It was tried by the circuit judge without a jury. He found findings of fact and law as follows:

‘Findings of Fact.

‘(1) On the 30th day of June, 1909, Alice Stamp, then living but now dead, was the owner of property in the city of Muskegon, Mich., described as ‘lot 3 and the west half of lot 2 of block 185 of the revised plat of the said city of Muskegon,’ which said property was in fact Nos. 91 and 95 East Webster avenue of the city of Muskegon.

‘(2) On the said 30th day of June, 1909, Alice Stamp gave said property, together with the contents of the buildings thereon, to the plaintiff in this case, evidencing said gift by a paper writing.

‘(3) Alice Stamp died in December, 1913, and Gustave Neumaster was appointed as special administrator of her estate and qualified and erroneously listed the above property as a part of the estate of said Alice Stamp, and collected as rents from said property the sum of $600.

‘(4) On the 1st day of September, 1914, John H. Banninga, the defendant, was appointed executor of said estate, and at that time the said Gustave Neumaster paid over to him the said sum of $600 which he had collected as rent for said premises.

‘(5) At about this time the plaintiff informed the said John H. Banninga, the defendant, that he, the plaintiff, owned said premises and requested possession thereof, which was refused by the said defendant, who took possession thereof. Both plaintiff and his wife at all times objected to the possession by the defendant of said premises and objected to his control thereof.

‘(6) Defendant insisting that he was entitled to the possession of said premises, and that the plaintiff had no rights therein, retained possession hereof and received from the tenants in possession of said buildings the sum of $150 per month for each month, beginning on the 21st day of September, 1914, and continuing until and including the 21st day of May, 1917, collecting said rents for 32 months and collecting the full sum of $4,800, in addition to the said sum of $600 which said defendant had received from the said Gustave Neumaster.

‘(7) That all of said money was and is the property of the plaintiff and was collected by the defendant without the consent of the plaintiff, and against his rights and wishes.

‘(8) That the defendant now has in his possession the sum of $5,400, belonging to the said plaintiff, and has had said sum since the 21st day of May, 1917.

‘(9) The plaintiff in this suit also declares against the defendant for certain household goods which he claims the defendant wrongfully took from him; the defendant denies having said goods, and I am not satisfied that he received them; and the plaintiff has not met the burden of proof in this regard and that part of his claim will be disallowed and he will take nothing thereby.

‘(10) The plaintiff only claims interest from May 21, 1921.

‘Conclusions of Law.

‘1. It follows that the plaintiff is entitled to a judgment against the defendant for the sum of $5,400 for the money which he has collected belonging to the plaintiff, together with interest thereon from and after the 21st day of May, 1917, at 5 per cent. per annum, which interest at this date amounts to the sum of $1,035, making a total of $6,435.

‘2. The plaintiff is entitled to a judgment against the said defendant, John H. Banninga, in the sum of $6,435, with costs to be taxed.

‘Let judgment be entered accordingly.’

A motion was made that the court amend his findings. The court declined to do this, and exceptions were duly taken. The case is here by writ of error.

Counsel say in their brief that the assignments of error raise but two questions:

‘1. Plaintiff is estopped from asserting his claim.

‘2. Plaintiff cannot recover the payments on said illegal contract.’

We quote from the brief of appellant's counsel:

‘The general claim by appellant that plaintiff is estopped from asserting his alleged rights will be subdivided and discussed as follows:

‘(a) Estoppel by records or judgments.

‘(b) Estoppel by conduct and by silence.

‘(c) Estoppel by election.

‘(a) It has been pointed out that plaintiff was the moving party in all of the steps to probate and administrate the estate, was a party to all of the proceedings, and therefore is bound to know of the orders of the probate court and of the doings with reference to the estate.’

(b) Counsel insists that plaintiff remained silent when he should have spoken.

(c) We again quote from the brief:

‘Estoppel by Election.

‘A party cannot, either in the course of litigation or in dealings in pais, occupy inconsistent positions. Out of that rule has grown the doctrine of election.

‘An election is made when a party, with a knowledge of his rights and of all other facts material to him, makes any decisive act. Bigelow on Estoppel (6th Ed.) 739; Robb v. Vos, 155 U. S. 13, 15 Sup. Ct. 4, 39 L. Ed. 52.

‘Plaintiff Stamp, with knowledge of his deed (if he actually had it), knowledge possessed by himself alone, proceeded to institute the probating of his sister's estate; succeeded in establishing her lost will; and with this same knowledge, allowed the estate to claim, handle and dispose of the property he now claims. He made a decisive act. He elected to establish her will under whose terms he and his family were beneficiaries. He cannot now occupy a...