Whiting v. Hill

• Decision Date: 04 October 1871
• Citation: 23 Mich. 399
• Court: Michigan Supreme Court
• Parties: Jonathan Whiting and others v. Isaac H. Hill and others

23 Mich. 399

Jonathan Whiting and others v. Isaac H. Hill and others

Supreme Court of Michigan

October 4, 1871

Heard July 8, 1871

Appeal in chancery from Bay circuit.

This bill was filed by Jonathan Whiting, Hiram Wood, George B Powell, Charles D. Middlebrook and James Remington, against Isaac H. Hill, Stacey B. Hill and Melbourne S. Hale.

The case is fully stated in the opinion.

Case remitted to the court below for the execution of the decree. Complainants recovered their costs in both courts.

Marston & Hatch, and G. V. N. Lothrop, for complainants.

Grier & McDonell, Ashley Pond and S. M. Green, for defendants.

OPINION

Graves J.

On the 12th of July, 1864, the complainants owned twenty-three acres and a fraction of land, having a front on Saginaw river, and upon which land were a salt well, two salt blocks, certain buildings, an engine, machinery and implements for manufacturing salt. The works had been used and known as the Saratoga Salt Works, and the complainants were then, and for some time before had been, carrying the same on, and in so doing conducted the business as copartners of a private firm under the name of the Saratoga Salt Company; but the complainant Remington was the only partner residing in this state, and he lived near the works and was the local manager for the owners in prosecuting the manufacture of salt. The other joint owners and copartners residing in the state of New York.

On the day first mentioned, the defendant Stacey B. Hill, and one F M. Hale, a brother of defendant Hale, and who assumed to act in the interest of the latter, called upon complainant Remington at the salt works, and entered into a negotiation with him for the purchase, by defendants, of the whole establishment, together with a quantity of wood then also owned by complainants and designed for the salt works. The Hills and F. M. Hale were at the time acquainted with several wells in the vicinity and with the business of salt manufacture there, and they desired to buy this establishment in order to engage in that business. The parties who thus personally began negotiations proceeded to look about the premises and to inspect the well and machinery, and while so doing, and conversing about a trade, the complainant Remington exhibited and passed to Hale a printed circular describing the property, and which had been prepared to attract a purchaser.

The defendants also claim that during this interview Remington made certain oral representations about the property. An arrangement was finally concluded the same day, which contemplated a sale to defendants, and an instrument under seal was drawn up to serve as an agreement to carry out the arrangement. But this instrument purporting to be made on the one part by the Saratoga Salt Company, was subscribed for the latter by Remington alone, and then only by affixing the company name by himself as treasurer, while the Hills subscribed in person and F. M. Hale added the signature of his brother Melbourne S. Hale.

By the terms of this instrument the property was to be sold to defendants for eighteen thousand dollars, of which five thousand dollars was to be paid instanter, and the residue on or before the 12th of July, 1866, with interest at seven per annum, and which residue and interest were to be secured by bond and mortgage on the property. It was also stipulated that defendants should have possession of the dwelling-house on the land on or before the first of the ensuing September, and of the remainder of the property immediately, and that a warranty deed conveying the premises, free from incumbrance and containing the usual covenants, should be given on receipt of the five thousand dollars. There was likewise a covenant on the part of the salt company that the "blocks, engine, pumps, etc.," were then in complete running order, except the east block. The remaining portions of the writing do not require to be noticed here.

This instrument having been thus prepared, but before any act equivalent to delivery, a conversation sprung up as to Remington's authority to bind his co-partners and co-owners, and it was ascertained that he possessed no such power. It was thereupon arranged that the five thousand dollars and the writing should be left at a named bank until Remington's associates should be heard from, and until a proper deed should be delivered; and pursuant to that understanding the writing was placed in the bank, and four thousand dollars of the five thousand dollars to be paid in hand were put there with it, and in a short time afterwards the defendants made up the sum in bank to five thousand dollars. The defendants immediately entered into possession of the well and other property, except the dwelling-house.

A few days subsequently, Remington's associates communicated to him their disapproval of some of the terms to which he had consented and which had been inserted in the writing, and among other things insisted that the sum of thirteen thousand dollars to be secured by bond and mortgage should be paid in two installments instead of one, and that three thousand dollars of the amount should be paid in the season of 1865; and when the bond and mortgage came to be executed this change was made.

At length, on the eighteenth of August, 1864, the deed and bond and mortgage were delivered--the execution of the latter having been acknowledged on the same day.

The bond and mortgage provided that three thousand dollars should be paid on or before the first day of August, 1865, and ten thousand dollars on or before the 12th day of July, 1866, with interest at seven per cent. per annum, computed from the first day of July, 1864.

The defendants, having gone into possession on the 12th of July, 1864, continued to run the works from that time until the payment of three thousand dollars became due, in August, 1865, at which time, Mr. Hatch, acting for complainants, called for the payment, but the defendants refused to pay, and suggested for the first time to complainants, that the latter were guilty of fraudulent misrepresentations on the sale of the property. The defendants persisting in their refusal to make further payments, the bill in this cause was filed on the 22d of March, 1866, to foreclose the mortgage, and the defendants answered and set up that material representations contained in the printed circular, and others made orally by Remington, at the time of the negotiation, and on which the defendants relied, were false, to the knowledge of complainants, and intended to defraud, and that the deception thus practiced on defendants had caused them great damage which ought to be allowed them in this suit.

The court below sustained the defense and the complainants appealed. The record is voluminous, but the foregoing outline will sufficiently indicate the nature of the case for the purpose of this opinion. The alleged representations related to the quality and condition of the well and the condition of the salt-blocks; but the main subjects of complaint, and indeed the only ones which will bear examination, are found in those allegations which set up deception concerning the strength and quantity of the brine and its freedom from gypsum.

There is no room for pretense that defendants were deceived by any representations relating to the condition of the blocks. In view of the facts disclosed, the inference is irresistible that defendants did not trust to any statements respecting the then-existing condition of these structures. They were open to inspection and were examined and used by defendants, who appear to have been well informed on such subjects and qualified to form a correct judgment about them. Besides, it is seen that the writing expressly excluded the east block from the condition said to have been imputed to it by the representations, while the west block is confessed to have been in a satisfactory state.

We may therefore, dismiss from the case every...