King v. Bird , 245 Mich. 93 ( 1928 )

In March, 1920, plaintiff, as broker, negotiated a sale of property at Pontiac, known as the National block, to defendants at the price of $382,500. Preliminary contract was executed and $10,000 paid thereon, followed by a formal land contract with additional down payment of $40,000. Defendants had difficulty in obtaining the $40,000 and plaintiff agreed to turn over to them his commission, or $10,000 of it, when received. Upon execution of the formal contract, he collected his commission and paid $10,000 to defendants. They gave him a receipt reading, "Received of Fred G. King, $10,000, as his interest in the National block." Defendants commissioned plaintiff to sell the property, but he was not successful. Defendants carried the contract until May, 1923, when, being unable to sell, they surrendered it.

Plaintiff brought this suit in 1924 to recover from defendants the $10,000 he so had paid over to them. The first count of his declaration and his bill of particulars stated his theory that the transaction was a loan. The declaration also contained the common counts in assumpsit. Defendants' claim was that as defendants were not quite able to finance the payment of $40,000, and as plaintiff was not entitled to a commission until the formal contract was executed, plaintiff agreed to contribute his commission to the enterprise, to have a proportionate interest in the property, to take his share of the profits on resale, and upon that agreement he paid them the money.

When the proofs were closed, plaintiff moved for a directed verdict. The motion was reserved under the statute. The case was submitted to the jury on the sole theory that plaintiff could not recover unless the transaction was a loan. The jury found for the defendants. The court, on the reserved motion, later entered judgment for plaintiff notwithstanding the verdict, on the theory that defendants' claim of the transaction disclosed a contract void under the statute of frauds and the money paid thereunder was recoverable in the suit. Defendants have set up only two assignments of error, (a) that the court erred in granting plaintiff's motion for judgment notwithstanding the verdict, and (b) that the court erred in ordering and entering judgment for plaintiff notwithstanding the verdict.

In the circuit court, defendants conceded that their version of the transaction disclosed a contract which contemplated that plaintiff have an interest in real estate. Being oral, the contract was void under the statute of frauds and money paid thereon may be recovered under the common counts in assumpsit.Kuchenmeister v. Dusza, 218 Mich. 497. They contend, however, that plaintiff, by his bill of particulars, was restricted to the theory of loan and he could not recover on the basis of defendants' version of the transaction. If the bill of particulars was insufficient to support a verdict (seeMurphy v. Dalton, 139 Mich. 79), this court may treat it as amended to cover the proof made (Feiertag v. Feiertag, 73 Mich. 297).

Defendants further contend that, as the jury rejected plaintiff's testimony that the transaction was a loan, he cannot now recover on a state of facts opposed to his own theory, citing Harlow v. Leclair, 82 N.H. 506 (136 A. 128,50 A.L.R. 973). In that case it was held that where a party himself testified to facts about which he could not be mistaken and which, if proved, would defeat his cause of action, he cannot recover on the testimony contradicting him. The rule is not applicable here. The plaintiff was entitled to recover if the jury accepted his own claim of the facts. He was also entitled to recover if defendants' version was approved. The finding of the jury had no effect upon the motion for judgment notwithstanding the verdict because the motion was made and must be considered on the situation as it existed before submission of the cause to the jury.

After judgment was entered this court handed down the opinion in Bresee v. Robinson, 236 Mich. 633. Defendants now claim that the agreement with plaintiff was not that he should have an interest in the real estate, but merely that he should have an interest in the profits on its sale, and, under the above decision, the contract was not within the statute of frauds. Assuming that their testimony was susceptible of such construction, at most it would have raised an issue of fact for the jury. The point was not presented to the circuit court at the trial, nor on the reserved motion after verdict. It is not covered by the assignments of error. No ruling thereon by the circuit court is here for review.

Defendants also urge that plaintiff was estopped from claiming benefit of the statute of frauds because he induced them to enter into the formal contract. Plaintiff denied defendants' claim in this respect. The testimony was in dispute and raised a question for the jury. The point was not presented to the circuit court nor covered by the assignments of error. Defendants' relief on matters which should have been presented to the jury must be found, if at all, in the circuit court.

The judgment is affirmed.

NORTH, FELLOWS, WIEST, CLARK, McDONALD, POTTER, and SHARPE, JJ., concurred.