Summers v. Hoffman
| Decision Date | 09 March 1955 |
| Docket Number | No. 16,16 |
| Citation | 69 N.W.2d 198,341 Mich. 686,48 A.L.R.2d 1033 |
| Parties | , 48 A.L.R.2d 1033 Frank A. SUMMERS, Plaintiff and Appellee, v. George HOFFMAN and Mary L. Hoffman, Husband and wife, Defendants and Appellants. |
| Court | Michigan Supreme Court |
Charles E. Moore, Grayling, Elmer G. Smith, Gaylord, for plaintiff and appellee.
Stanton, Sempliner, Dewey & Knight, Detroit, for defendants and appellants.
Before the Entire Bench.
In 1942, Frank A. Summers, plaintiff herein, moved from the city of Detroit to Otsego Lake in the vicinity of Gaylord, Michigan, where he has since resided being principally engaged in dealing in and developing gas and oil lands. At one time he was a real estate broker but his license was revoked in 1929 and in 1940 he was found guilty of violating the blue sky law of the State of Michigan. In 1937, while still living in Detroit he became acquainted and very friendly with George Hoffman and Mary L. Hoffman, his wife, defendants herein. For very many years Hoffman was engaged in the tavern business but apparently of late has invested in real estate.
In 1948 plaintiff learned that a Mrs. Fowler claimed ownership to 250 acres of land in Otsego county, Michigan, a part of which abutted on Otsego Lake. She was willing to dispose of the property for $10,000 which was deemed a very low price. However, the condition was exacted that the purchaser would be obligated to clear the title to the land at his own expense. This was not deemed an insurmountable difficulty. Plaintiff notified his friends, the defendants, of the opportunity and they very shortly thereafter went to Gaylord and agreed to purchase the property. The transaction was consummated by land contract running from Mrs. Fowler to defendants. The alleged agreement between plaintiff and defendants regarding this and other property is the matter in dispute that gives rise to the present litigation. Plaintiff absolutely testified that an oral agreement was entered into whereby the defendants would put up the money to purchase the property, clear the title and develop the land, and plaintiff would superintend the litigation to clear title and manage the entire development and disposition of the property in return for which he would be entitled to one-half of the profits made from the sale thereof after defendants were paid in full for all moneys expended by them in connection with the property. There can be no question but that plaintiff assisted very materially not only in the selection of attorneys and subsequent clearing of the title but also traveled at his own expense to various points in the State in an effort to acquire possible adverse interests and secure evidence. He also performed manual services in assisting in the clearing of part of the property, looking after the felled lumber resulting from the cutting of trees for roads and he generally devoted much time and effort to the enterprise. Mrs. Fowler, the vendor, filed a bill to quiet title, using the same attorneys who appear for plaintiff in the instant case. As a result she obtained a decree quieting title which we affirmed in Fowler v. Cornwell, 328 Mich. 89, 43 N.W.2d 73. The record in that case indicates that plaintiff was apparently interested in the clearing of the title.
At one time at the hearing defendants took the position that plaintiff was to have certain mineral rights in the property in return for his extensive services. This was not set up in the original answer to the bill nor in a later amended answer filed after the hearing of this case. We do not consider it in this opinion.
In October, 1949, plaintiff and defendants acquired by land contract from the same Mrs. Fowler an adjoining parcel of land containing 160 acres. This title ran to plaintiff and defendants, the latter again putting up the money to acquire the property. Plaintiff claims that the same agreement regarding division of profits, et cetera, also applies to this parcel.
Various transactions as well as the aforementioned physical development of both parcels of land were carried on with plaintiff's assistance and defendants' encouragement. A portion of the first parcel was sold to the township and a forty-acre tract in the second parcel was traded for a similar one belonging to the State of Michigan. After the portion next to the lake had been subdivided plaintiff was able to arrange for the sale of a lake front lot, the purchaser paying $100 to the plaintiff as deposit. Plaintiff turned this money over to defendants by check with the notation thereon that it was a deposit. Defendants refused to recognize it as such but kept the money and subsequently when the purchaser turned over more money to plaintiff, Hoffman refused to accept it or have any further dealings with plaintiff and denied the existence of any agreement between them. Thereafter this suit was instituted.
The lengthy record indicates that the parties are in complete disagreement as to what occurred. The defendants do not deny that plaintiff was instrumental in the purchasing of the property, the clearing of the title and the development of the property, but they claim he was more or less of an interloper, wormed his way into the enterprise and then set up the present claim. They further claim that plaintiff owed them a considerable amount and they believed that he was thus trying to repay them. The claims of the parties are irreconcilable but we believe that plaintiff made out his case to a sufficient extent so that the trial judge, who heard and saw the parties and was familiar with all of the litigation, both in Fowler v. Cornwell, supra, and the instant case, correctly concluded that plaintiff was telling the truth and decided in his favor. A de novo review of the lengthy record before us sustains his finding.
The trial court dismissed defendants' contention that the agreement as made was void under the statute of frauds and the broker's license statute with the conclusion that:
'* * * the dealings of the parties contemplated by such oral agreement constituted a joint adventure.'
Defendants have appealed on various grounds from the decree compelling specific performance of the agreement.
We sustain the finding that the agreement amounted to a joint adventure. In Denny v. Garavaglia, 333 Mich. 317, 52 N.W.2d 521, this court reaffirmed a definition of a joint venture set out in Hathaway v. Porter Royalty Pool, Inc., 296 Mich. 90, 102, 103, 295 N.W. 571, 576, 138 A.L.R. 955, where we stated:
.
Also see, Price v. Nellist, 316 Mich. 418, 25 N.W.2d 512, Fletcher v. Fletcher, 206 Mich. 153, 172 N.W. 436. A consideration of the salient facts in the instant case shows that the contract embodied characteristics of a joint venture. A single project was involved, namely, the development and sale of two large parcels of real estate. The profits, after expenses, were to be divided 50 per cent to plaintiff and 50 per cent to defendants. Both made a contribution: plaintiff contributed his time, skill and supervision, while defendants contributed the capital. Both had control over the property as defendants were the record owners of one parcel and joint owners with plaintiff of the other, while plaintiff was conducting the physical improvement of the land and endeavoring to sell the lots. But defendants claim that under the agreement plaintiff would not share any losses or bear the risk of loss in case of an adverse decision in the suit involving the title to the property. With this contention we cannot agree. 'Loss' does not necessarily mean actual 'monetary loss.' If the land was eventually sold at a loss the result would be that plaintiff's expenditure of time would have been for naught as would defendants' monetary investment. If the title litigation had been decided adversely then plaintiff would have lost large out-of-pocket expenses and the value of the time which he had theretofore spent on the project which, while not quite as concrete or measurable as defendants' cash investment, is nevertheless a loss. It cannot be said that the plaintiff did not share any risk of loss, for as we said in Hathaway v. Porter Royalty Pool, Inc., supra:
'* * * though the liability of a joint adventurer for a proportionate part of the losses or expenditures of the joint enterprise may be affected by the terms of the contract.'
Defendants contend that the contract plaintiff seeks to enforce is void under the statute of frauds, C.L.1948, § 566.132(5), Stat.Ann. § 26.922(5), which provides:
'In the following cases specified in this section, every agreement, contract and promise shall be void, unless such agreement, contract or promise, or some note or memorandum thereof be in writing and signed by the party to be charged therewith, or by some person by him thereunto lawfully authorized, that is to say:
* * *
* * *
.
The question to be considered is: Does this statute apply to an agreement between joint adventurers for a division of profits on the sale of land?
While the statute has never been considered in a case like the one at bar, it has been interpreted on a number of occasions. The statute is in...
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Berger v. Mead
...Beverly Hills.4 Some cases have held, however, that a strictly financial profit is not always necessary. Summers v. Hoffman, 341 Mich. 686, 69 N.W.2d 198, 48 A.L.R.2d 1033 (1955); Moore v. Hillsdale County Telephone Co., 171 Mich. 388, 398, 137 N.W. 241 (1912). But the joint ventures in the......
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Pike v. Wachovia Bank & Trust Co., 766
...others. Each member of a joint adventure is both an agent for his co-adventurer and a principal for himself. Summers v. Hoffman, 341 Mich. 686, 69 N.W.2d 198, 48 A.L.R.2d 1033; 48 C.J.S. Joint Adventures § 5, p. 'The terms joint adventure and joint venture are synonymous. 48 C.J.S. Joint Ad......
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Frazell v. United States
...stood to lose their capital investments and the limited time they devoted to the enterprises. In Summers v. Hoffman, 341 Mich. 686, 69 N.W.2d 198, 48 A.L.R.2d 1033 (Mich.Sup.Ct., 1955), the Supreme Court of Michigan stated in a similar joint venture context: "Both made a contribution: plain......
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Benninghoff v. Tilton, No. 284637 (Mich. App. 11/12/2009), No. 284637.
...alters the common law applicable to the public's ability to obtain a highway by user, it must be narrowly construed. Summers v Hoffman, 341 Mich 686, 694; 69 NW2d 198 (1955). Therefore, MCL 221.20 must be limited to its apparent purpose: establishing a prescriptive right in the public to us......