Tong v. Miller
| Decision Date | 18 June 1925 |
| Docket Number | Motion No. 65. |
| Citation | 231 Mich. 356,204 N.W. 108 |
| Parties | TONG et al. v. MILLER, Circuit Judge. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Application by Jean Tong and Oscar Tong for alternative writ of mandamus to be directed to Guy A. Miller, Circuit Judge. Writ granted.
Argued before McDONALD, C. J., and CLARK, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ.Proctor K. Owens and Charles A. Svenson, both of Detroit, for relators.
Willis B. Goodenow, of Detroit, for respondent.
This mandamus proceeding arises out of a suit in the Wayne county circuit court in chancery, entitled Jean Tong and Oscar Tong v. Grover C. Ake and Ada O. Ake, brought by the Tongs for cancellation of a contract by the terms of which they agreed to buy from the Akes a short time lease of, and the furniture in, a rooming house on Second avenue in the city of Detroit for the price of $7,500, with a substantial payment down and a series of notes for deferred payments of the balance of the purchase price.
The contract was executed on March 31, 1924. The Tongs then made the initial payment, gave their notes as agreed for the balance, and were let into possession. Not long thereafter they discovered, as claimed, that they had been sadly deceived in numerous material particulars, and induced to enter into the contract by a series of grossly false and fraudulent representations upon which they in ignorance of the truth relied. They thereupon repudiated the contract, tendered back to the Akes a reassignment of the lease and possession of the property, demanded return of the money they had paid and the notes they had given them. The Akes yet occupied quarters in the rooming house and, after their refusal of the conditional tender and demand by the Tongs, the latter left and began suit for cancellation of their contract asking that it and the notes they had given be declared void and ordered canceled, and an order or decretal judgment for return of the over $3,000 which they had been fraudulently induced to pay on the contract.
When brought to issue the case was heard upon its merits on testimony taken in open court. The presiding judge then rendered an opinion reviewing the issues raised, finding plaintiffs had fully sustained the allegations of false and fraudulent inducements in their bill, and held they were entitled to the relief asked. A final decree in harmony with the opinion was signed, and filed by him on December 23, 1924. This decree is carefully worded and covers the subject in detail. It declares, in substance, that the Tongs are entitled to the full relief prayed for, declares void the contract and series of notes given by them for deferred payments on it, directs they be turned over to the Wayne county clerk for cancallation within 10 days, orders and decrees that the money which defendants secured from plaintiffs, amounting with interest to $3,700, be returned to them within 10 days and-- ‘that such sums shall be paid by the said defendants as aforesaid to the clerk of the Wayne circuit court, * * * and that all of such sums of money, when received by the said clerk of Wayne circuit court from the said defendants, shall be paid to the plaintiffs by said clerk upon presentation of copy of this decree to said clerk.’
A lien in the nature of a chattel mortgage was given plaintiffs upon the furniture involved for the amount decreed, with power to foreclose the same, also right of execution therefor against the real and personal property of defendants, and if those methods failed in whole or in part it was further decreed that the Tongs might ‘have writ of body execution against the body of said defendant Grover C. Ake.’ Plaintiffs were awarded costs to be taxed.
Defendants' counsel seasonably gave notice of appeal and paid the appeal fee to the clerk, but filed no bond to stay execution, and within the 10 days defendants turned over to the clerk the contract and notes held invalid and paid to him the $3,700 as the decree directed, taking his receipt therefor. They also paid plaintiffs' attorneys their taxed bill of costs amounting to $109.40. On January 5, plaintiffs' attorneys presented to the clerk a certified copy of the decree and demanded of him the money and notes, claiming right thereto under the terms of the decree. The clerk declined to comply with...
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