Webster v. Bailey

• Decision Date: 06 January 1875
• Citation: 31 Mich. 36
• Court: Michigan Supreme Court
• Parties: Osee W. Webster and another v. Alfred Bailey

31 Mich. 36

Osee W. Webster and another v. Alfred Bailey

Supreme Court of Michigan

January 6, 1875

Heard October 29, 1874

Appeal in Chancery from Lenawee Circuit.

Decree affirmed, with costs.

C. A & S. C. Stacy and William A. Underwood, for complainants.

A. L Millard, for defendant.

OPINION

Campbell, J.:

The bill in this case was filed by Clarinda L. Webster, now deceased, to rescind the sale of certain mill property which was sold by her, through her husband's agency, to Bailey the defendant, in exchange for a mortgage given by one Davis to one Freeman, on property in Saginaw county, for two thousand five hundred dollars, and assigned by Freeman to Bailey in exchange for a stock of boots and shoes. The bill claims that complainant was deceived by the statements of Bailey concerning the value of the security.

After Mrs. Webster's death an order was made under the statute for the revival of the suit, in the names of the administrator and heir. A paper was then filed containing amendments to the bill, which consisted in a statement of Mrs. Webster's death and the devolution of her estate, and averments that defendant withholds from them rights, and a prayer for relief, corresponding to the original prayer, except that it is in favor of the new parties.

It is objected that these amendments were improper, because introducing matters which have occurred since the bill was filed.

They are, in fact, the substance of what would be inserted in a bill of revivor; and, this being so, they are neither more nor less than what was already implied by the order of revival; which, by dispensing with the necessity of a bill, compels the court to read the record in favor of the new parties, as if all essential to such a bill was before it in another form.

These amendments introduced no new facts upon the merits, and were entirely unnecessary. They are of no consequence, and should be disregarded. They can do no possible harm to the defendant, who has taken no steps to get rid of them, and is no worse off with than without them.

The controversy chiefly turns on the point whether defendant's course in obtaining the property of Mrs. Webster was such as to entitle her to complain of the worthlessness of the security which she took in exchange for it, or whether she took this entirely at her own risk.

The whole bargain was made with her husband, and it is not disputed that she is in the same position as if she had conducted the business in person.

The belief on which the husband took the mortgage and accompanying notes, which were not then due, was, that the mortgagor was thoroughly responsible, and the land mortgaged ample security, and that defendant had taken the mortgage from the mortgagee at its face for full value, and had taken adequate means to assure himself of the goodness and adequacy of all the securities. Upon this there is no room for doubt.

We are also satisfied from the testimony, that the mortgagor was not responsible, nor the land good security, and that Freeman knew this, or had abundant reason to know it. But we are not satisfied that defendant knew this when he took the assignment, and we are also inclined to the belief that he gave what was full value, and was himself defrauded.

It is apparent, however, that he did not take this without deliberation and personal observation,--that he went to the place where the land was, and made inquiry where he chose to inquire, and examined so much of the land as he thought necessary, and did not take the assignment until he had thus inquired and examined, although he was probably misled. This becomes very material, in considering what the probabilities are, under the conflict of testimony upon the nature and extent of his representations. Complainants' case is fully made out if we accept the testimony of Osee Webster. That on the part of the defendant represents the transactions attending the bargain with Webster differently. But some facts are plain and not open to difference.

Defendant had sold out his entire stock of boots and shoes, and had taken these notes and the mortgage as absolute payment for about one-half of the price. This was in June, 1870. In August, 1870, he began to negotiate through one James Potter, who received from Osee Webster an offer to sell the mill property of complainant for $ 2,500. Potter informed Webster that defendant had the notes and mortgage in question, which he wanted to use in the purchase, and it was understood between them that if a bargain were made they should be used.

There is a difference between Webster and Potter as to what representations Potter made. Webster's statement is, that $ 500 was to be paid down, and repaid to Bailey when the notes and mortgage were paid; and that Potter represented that Bailey had seen the land, and told him (Potter) that he would not have taken the securities if they had not been good; that Bailey said the land was good, and the maker of the mortgage was good, and in the hoop business, and worth about $ 5,000, and expected money from the east to pay this obligation with. Potter does not remember about the money down, and states what he said, as being, that Bailey said Freeman told him about the value of the land and Davis's responsibility. He makes no allusion to Bailey's having gone to see the land, and does not attempt to detail all that passed. Both he and Webster...