Trost v. J. E. St. Clair Co., 104.

• Decision Date: 07 April 1930
• Docket Number: No. 104.,104.
• Citation: 250 Mich. 342,230 N.W. 147
• Parties: TROST v. J. E. ST. CLAIR CO. et al.
• Court: Michigan Supreme Court

250 Mich. 342

230 N.W. 147

TROST

v.J. E. ST. CLAIR CO. et al.

No. 104.

Supreme Court of Michigan.

April 7, 1930.

Appeal from Circuit Court, Lapeer County, in Chancery; Henry H. Smith, Judge.

Suit by Caroline Trost against the J. E. St. Clair Company, Walter Trost, and others. From a decree for defendant J. E. St. Clair Company, plaintiff and defendants Walter Trost and others appeal.

Affirmed.

Argued before the Entire Bench.

Herbert W. Smith, of Lapeer, for appellant Trost.

Zirkalose & Smith, of Detroit (Curtis D. Wernette, of Detroit, of counsel), for appellee.

FEAD, J.

This is a suit to set aside, on the grounds of fraud and dual agency, a note and mortgage given to defendant St. Clair by plaintiff and the other defendants, her stepchildren, interested as heirs of their father, as commission on sale of real estate.

Plaintiff and her husband owned a farm near Lapeer which they wanted to sell for $22,000. One Goercki undertook to find a purchaser. The husband died, and a month or two later Goercki interested St. Clair, a broker, in the sale. St. Clair looked over the farm. Plaintiff's price then was $24,000. The property was not listed with St. Clair nor an agreement for commission made. One Paulin had listed some Detroit property with a broker, Hunt, who often used St. Clair's office and worked with him on deals. Through Hunt, St. Clair had the Paulin property for sale. He did not inform plaintiff of the arrangement. He took Paulin to inspect the farm. Later he took plaintiff to Detroit and showed her several pieces of property. She selected one, held at $8,500, and in which Paulin wanted $3,000 for his equity. Plaintiff thought it was worth $7,000, raised her own price to $26,000 to more than cover the difference, and, on March 31st, at her sister's home, and in the presence of several members of her family, executed a written offer to purchase it ‘through the J. E. St. Clair Company, * * * agent for the owner,’ the Paulin equity to be credited as down payment on the farm and the balance on both payable on contract; the stock, implements, and other personal property on the farm were included in the offer, and plaintiff agreed to pay St. Clair a commission. Plaintiff did not testify that she did not understand that St. Clair had Paulin's property for sale.

Some days later St. Clair told the other defendants of the transaction and arranged a meeting at his office. The meeting was held April 9th. The heirs executed the preliminary offer and agreement to pay the commission, and they, plaintiff, and Paulin, executed final instruments in consummation of the trade. The personal property was omitted from the contract. The record does not show why. Plaintiff and defendant heirs gave St. Clair a note and mortgage to cover his commission, made payable in sixty days, with the idea of paying it from a federal loan to be negotiated. The heirs also executed a writing that plaintiff should have the full interest in the Detroit property, and they would take their shares from the farm contract. The papers were left with St. Clair to await plaintiff's decision whether she would take an additional piece of Paulin's property to apply on the farm contract. Plaintiff remained in Detroit about a week, gave no indication of dissatisfaction, but a...