Sullivan v. Ross' Estate
| Decision Date | 20 September 1898 |
| Parties | SULLIVAN v. ROSS' ESTATE. |
| Court | Michigan Supreme Court |
On rehearing. Former decision disapproved, and judgment below reversed.
For former opinion, see 71 N.W. 634.
It was contended that, since a trust relation had existed between Ross and Sullivan, the survivor's remedy for an accounting under the contract in suit was only in equity, and not in the probate court.
The questions involved in the case up to February, 1894, are fully stated in Sullivan v. Ross' Estate, 98 Mich. 570, 57 N.W. 821. A reference to that case will make it unnecessary to repeat what is there stated. The case was here again, and is reported in Sullivan v. Ross' Estate, 71 N.W. 634. A reference thereto as to the history of the case subsequent to the events stated in 98 Mich. 570, 57 N.W. 821, will avoid the necessity to repeat many of the details of the case here. It is claimed on the part of the appellant that the case was wrongly decided, and a rehearing was ordered. In 71 N.W. 634, it was held-First that the question involved in the case was res judicata second, that claimant in his former suit chose his remedy and the law does not now permit him to assert another. Upon the rehearing, careful and able oral arguments were made, and additional briefs were filed. In deciding the case, it may be well to go more into detail, as to the history of the litigation prior to the advent of the case in this court, and to consider what was decided in 98 Mich. 570, 57 N.W. 821. It is well to remember at the outset that the case originated in the probate court, where claimant presented several items which he sought to have allowed in his favor against the defendant estate. The principal item, and the one about which the principal controversy has arisen, is a claim for 9,000,000 feet of lumber, which he alleges was sold by an oral bargain to Mr. Ross, through one Connolly, his agent for the sum of $81,000. He claimed there was due him from the estate, stated in round numbers, the sum of $70,000. The defendant admitted he had received upward of 7,000,000 of feet of lumber belonging to plaintiff, but claimed he made payments and advances to plaintiff to such an extent that not only he did not owe him anything, but plaintiff owed him upward of $23,000. The estate denied the lumber was sold by oral contract, and claimed it received the lumber and disposed of it according to the terms of two written contracts made in the fall of 1883, supplemented by a written contract made in June, 1884. The claims of the parties were submitted by the trial judge to a jury, who returned a verdict in favor of the claimant, and in doing so must have found the oral contract to exist.
The opinion in 98 Mich. and 57 N.W. indicates clearly that the court were of the opinion that the written evidence made by the plaintiff himself was inconsistent with the existence of the oral contract, and was consistent only with the existence of the written contract. The judgment was reversed, and a new trial ordered. Up to this point it is clearly evident that the jury passed upon the relation of the parties, upon the theory that the oral contract existed, and did not undertake to decide in whose favor the balance should be, or for what amount, upon the theory that the written contract was to control. It is also evident, as to this principal item, it was presented to the probate court for a definite quantity of lumber, at a stated price, according to the terms of the alleged oral contract, and was not such an item as must be presented, if it is to represent a claim for the lumber, upon the theory the transaction is to be controlled by the written contract. After this court decided the written contract must control, and a new trial was ordered, claimant attempted to amend his claim so as to bring it within the contract this court said must control. The circuit judge declined to permit the amendment, for the reasons stated in 71 N.W. 634; and, upon an application for a mandamus, this court declined to interfere. No written opinion was filed, so the reasons for this action of the court cannot be determined here. It might well be said the claim presented before the probate court and the issue there made was not the same as the one which would be presented if the amendment was allowed, and for that reason the application for a writ of mandamus was refused. I do not think it can be said that, because of the mandamus proceeding, the question is res judicata. Can it be said, because of the proceedings prior to the decision in 98 Mich. and 57 N. W., the question is res judicata?
The plaintiff claimed a balance due growing out of the oral contract. The defendant claimed the written contract should control, and that a balance was due him. The jury found in favor of the plaintiff. This court said they did wrong because the written contract must control, and ordered a new trial. The plaintiff then sought to so frame the proceedings as to permit the case to be heard upon the theory that the written contract should control. He has not so far been able to do it. It is very clear a dispute exists between the parties as to how much is due, and from whom, if the written contract is to control. It is equally clear that question has never been passed upon by the court. The attitude of the plaintiff is: Large dealings exist between the parties. The decision in 98 Mich. and 57 N.W. decides which contract shall control, but I do not think either it or the case as tried in the circuit court has decided what the judgment should be upon the basis of the written contract. The pleadings were not in such a condition that the issue thus stated could be tried. There has been no trial upon the merits of the controversy between these parties. The plaintiff sought to recover upon an oral contract. He had no right of action upon that contract, because the court has said no such contract existed. Can it be said that defendant shall not be required to account for the proceeds of seven or eight millions of feet of lumber, which it admits it had, because plaintiff claims the transaction was evidenced by an oral contract, when the court finds no such contract existed, but a written one did? I think the situation is stated in McLaughlin v. Austin, 104 Mich. 489, 62 N.W. 719: ...
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