Tompkins v. Hollister

• Decision Date: 15 April 1886
• Citation: 60 Mich. 470,27 N.W. 651
• Court: Michigan Supreme Court
• Parties: TOMPKINS v. HOLLISTER and others.

27 N.W. 651

60 Mich. 470

TOMPKINS v. HOLLISTER and others.

Supreme Court of Michigan

April 15, 1886

Appeal from superior court, Grand Rapids.

Tatem &amp Jamison, for complainant.

Gleason & Bundy and L. Wolcott, for defendants and appellants.

MORSE, J.

The complainant, who is the widow of Byron D. Ball, filed her bill of complaint against the defendants, alleging, in substance, as her grievance, that while her husband was on his death-bed, January 8, 1876, and supposed to be dying at the time, the defendant Hollister, who had been on the most intimate business and friendly terms with her husband, came to the house with a lawyer, a partner of her husband, and procured from him a note for $4,000. They called her into the room where her husband lay, who, in great excitement said to her, "Mattie, sign this note we are making," which she did, not comprehending what she was about,--only thinking of her dying husband. The note was as follows:

"$4,000. GRAND RAPIDS, MICH., January 8, 1876.

"Four months after date we jointly and severally promise to pay to the order of Harvey J. Hollister four thousand dollars at the First National Bank of Grand Rapids, value received with interest at ten per cent. per annum after maturity. BYRON D. BALL.

"MARTHA M. BALL."

Complainant avers that she did not then know, and does not now know, what the consideration of said note was, but that it was not given for any debt or obligation of her own. Upon the death of her husband, a few weeks thereafter, she and said Hollister became and acted as joint executors of his estate; that having the utmost faith and confidence in said Hollister, she trusted everything to him, and knew but little as to what was done in regard to settling Ball's estate; that said Byron D. Ball left four children. There was an insurance policy on his life for her benefit for the sum of $4,800, and another for the benefit of the children amounting to $2,500, the proceeds of both being paid to her about the middle of May, 1876. Hollister informed her that she would be held personally liable for this note, and that it was her debt; that Hollister had the management of these insurance moneys, which she deposited in said bank; and by his order, May 20 or 22 of that year, she paid said note out of her insurance money, being then $4,010.83 in principal and interest; that she so paid it relying upon the superior business knowledge of Hollister, and believing she was liable thereon. She does not know which of said defendants got this money, but thinks the most of it went to Hollister. At the time of payment she said to him, as she had said before: "If I could have my way, it should be used for the payment of that mortgage," referring to a mortgage of $13,000 upon premises of her husband's estate, known as "Ball's Block," in the city of Grand Rapids.

There was a large amount of debts against her husband's estate, amounting in all to $9,193.85, all of which have been duly paid and settled, save one to herself, which will be noted hereafter. The estate was inventoried at $54,100, of which only $800 was personal. The claim proved in her name against the estate was for the amount paid on this note, principally, being $4,285.54, which was presented and allowed without her knowledge. This claim so allowed has never been paid to her, and there is no money or personal property out of which to make it; that said Hollister used both her and the children's insurance moneys to pay said note and other debts of the estate; and all that she has ever had out of these funds so deposited in said bank, and afterwards managed and controlled by said Hollister, is the sum of $800. Said Hollister neglected to make payment of any of the debts against the estate out of the real estate. In 1883 she took hold of the matter herself, and, by selling the only lot outside of the block, succeeded in paying said debts, save her own, by compromising and discounting most of them at 50 cents on the dollar. The only property now belonging to the estate is this Ball's block, which is mortgaged for over $20,000. The property was appraised by the supervisor for taxation last spring at 29,000. The real cash value is not stated.

She further avers that Hollister knew she was not legally bound upon said note, and was not obliged to use said insurance moneys to pay the same, and wrongfully and deceitfully neglected and refused to inform her of her rights, which he was in duty bound to do; that he, and said bank of which he was cashier, wrongfully, unlawfully, and fraudulently secured from her the payment of said note, and after the payment further kept her in ignorance of her rights by fraudulently neglecting to inform her that she was not liable and holden upon said note. She further alleges that not until the summer of 1883, when she employed counsel and began acting under other advice than said Hollister's, did she first fully learn, comprehend, and know that she could not have been legally required to pay said note, because the obligation therein set forth was not her debt, and that she had been wrongfully misled and deceived by said Hollister. She shows that she has requested said Hollister and said bank to account for and repay the said moneys so had and detained by him or it, but said defendants utterly refuse and neglect so to do. She prays that said defendants may answer and give the full history, basis, and origin of said note, and its payment, and come to a fair accounting with her in that regard, and be required to make restitution of such moneys to her; and that she may have such other and further relief in the premises as the nature of her case shall require.

To this bill the defendant corporation demurred, and Hollister filed a plea, setting up in the same that the said complainant, on the fifteenth day of July, 1884, exhibited a bill of complaint against him in the same court, setting forth the same identical cause of action as in the present proceeding against him, but not joining the corporation defendant therein; that he appeared and answered in said cause, in which answer he fully gave the basis and origin of said note, and denied all fraudulent action or doing as charged in said bill; that said complainant filed her replication to said answer, but afterwards, at her own request, the same was withdrawn from the files of the cause; that said cause came on to be heard before said court on March 3 and 4, 1885, and was heard and fully argued on the merits; that March 8, 1885, the court pronounced a decree in favor of said defendant Hollister.

It seems that up to this time the complainant in the present suit was acting in her own proper person, without any solicitor. After the filing of said plea she asked and was granted leave to amend her bill of complaint, the court also making an order that she "appear thereafter by counsel through some regularly admitted attorney of this bar." On the twenty-second day of July, 1885, she filed, through her solicitors, Tatem & Jamison, an amended bill of complaint, such amended bill differing only from the first by inserting the following paragraph, speaking of said Hollister:" That while he himself was well informed of her rights in this behalf, yet he wrongfully and deceitfully neglected and refused to inform her of her rights in this regard, as in duty bound to do; that thereby, and in manner and on occasions aforesaid, while being and acting as her trusted co-executor, and at the same time being and acting as the cashier of the bank, the said defendant Hollister, in collusion with said bank, as complainant believes, wrongfully, unlawfully, and fraudulently secured from her the execution and payment of said note, and the keeping of her said moneys thereafter; that he thus secured such payment, if not in his own individual interest, in the interest of the said bank, a corporation wherein he was a large stockholder, as well as director and officer."--and in amending the prayer for relief so that said Hollister and said bank might be required to give a full account of the payment of said note, and the manner of its payment, and come to a fair and just account of their doings in that regard; and that said bank might be required to make repayment and restitution to her, with interest, of all sums of money paid by her to it upon said note; and that said Hollister might be constituted and held as surety for such repayment and restitution, and for the payment of such other damages to her as should be agreeable to equity: to which amended bill both of the defendants filed a general demurrer for want of equity. The demurrer, upon argument, was overruled. The defendants now appeal to this court.

It is claimed that by amending her bill the complainant admitted the validity of the plea filed by defendant Hollister, which is true; but the amended bill standing in the place of a new bill, the plea is no answer to it. The plea was superseded by the new or amended bill, to which the defendants had the same time to plead, demur, or answer. Instead of putting in a plea, defendants chose to demur, and the case now stands, therefore, as if no plea had ever been filed. Peck v. Burgess, Walk.Ch. 485.

It is also urged that she makes no case for equitable relief by her bill as amended, and the demurrer should have been sustained because (1) her remedy at law is complete and ample; and (2) the bill upon its face shows that the claim against defendants is barred by the statute of limitations.

It appears very clearly from this bill that the note in question was one that she was not legally liable upon; that she did not know this fact until 1883; that Hollister did know it and neglected to inform her of it; that he was her co-executor of her husband's estate; and that she had such...