Volume 226 — Michigan Reports

The Johnston-Newton Company tendered its annual corporation franchise fax to Charles J. DeLand, secretary of State, in accordance with Act No. 85, Pub. Acts 1921, as amended by Act No. 233, Pub. Acts 1923. Defendant refused to accept the tax under the amended act, and plaintiff appealed to the corporation tax appeal board. From an order denying the appeal, plaintiff brings certiorari.

), J., presiding. Bill by the Pere Marquette Railway Company against Oramel B. Fuller, auditor general, and others to set aside a drain tax. From a decree dismissing the bill, plaintiff appeals.

), J. Case by William L. Frederick against Gordon W. Hill, Albert W. Ryerson, and the Universal Book Stores Company for fraud in the sale of stock in defendant corporation. Judgment for defendants Hill and Ryerson on a directed verdict. Plaintiff brings error.

<p>Error to Monroe; Root (Jesse H.), J.</p> <p>Assumpsit by the J. B. Colt Company against Lawson Cousino for goods sold and delivered. Judgment for defendant. Plaintiff brings error.</p>

<p>1. Mortgages — Deed as Mortgage — Evidence—Burden of Proof.</p> <p>The burden of proof is upon a plaintiff who asserts that a deed absolute upon its face is in fact a mortgage to establish his claim by clear, irrefragable, and most convincing proof.</p> <p>2. Same — Assignments—Evidence—Sufficiency.</p> <p>In a suit to compel the re-assignment of a land contract, the claim of plaintiffs that their assignment of their interest as vendees in a land contract, although absolute upon its face was in fact made as security for a loan which they have since repaid, held, not supported by sufficient proof to justify the court in holding that the assignment absolute upon its face is other than it purports to be.</p>

), J. Case by James Oliver Curwood against the Peninsular Fire Insurance Company of America for fraud in the sale of corporate stock. Judgment for plaintiff. Defendant brings error.

), J., presiding. Case by Edward Dominick against William G. Rea and another for the conversion of an automobile. Judgment for defendants on a directed verdict. Plaintiff brings error.

Mandamus by Minnie B. Kitchin, executrix of the estate of Sanford T. Kitchin, deceased, to compel DeWitt H. Merriam, circuit judge of Wayne county, to vacate an order denying a motion for an extension of time to perfect an appeal.

<p>L Equity — Accounting—Oral Contract — Evidence—Sufficiency.</p> <p>In a suit for an accounting under an oral contract whereby defendant agreed to pay to plaintiff a certain per cent, of the profits arising out of the income and operation of certain real property and from its resale as a consideration for plaintiff's services and advice in purchasing, handling, and reselling the property, evidence held, sufficient to establish the contract as claimed by plaintiff.</p> <p>2. Perpetuities — Contracts — Real Property — Restraint Upon Alienation.</p> <p>A contract whereby defendant purchaser of real property agreed to resell when plaintiff advised to do so and pay to him a certain per cent, of the profits as compensation for his services cannot be said to be void as a restraint upon the power of alienation, since the agreement was not to withhold from sale, but to sell when plaintiff advised.</p> <p>3. Equity — Laches—Estoppel.</p> <p>Plaintiff’s delay of 4% years in bringing suit did not amount to laches barring his right to recover, in the absence of any showing by defendant of any inequities arising out of such delay.</p> <p>On effect of statute of frauds upon parol contract for sharing profits, which may, but are not intended to be performed within a year, see note in 15 L. R. A. (N. S.) 317.</p> <p>4. Frauds, Statute of — Oral Contract — Real Property.</p> <p>An oral contract for a share of the profits arising from the management and sale of lands is not void under the statute of frauds, since it is not a contract for the sale of an interest in lands required to be in writing.</p> <p>5. Same — Validity of Oral Contract Not Performed Within a Year.</p> <p>Nor was said contract void under the statute of frauds because not performed within a year, where it was capable of being completely performed within a year, and there were no provisions therein to the contrary, even if the parties intended that it should extend over a longer period.</p> <p>6. Limitation of Actions.</p> <p>Where plaintiff’s cause of action arose in 1916, and he commenced suit in 1920, the statute of limitations has no application.</p> <p>7. Equity — Accounting—Termination of Period.</p> <p>The period for which plaintiff was entitled to an accounting for profits arising from rentals terminated on the date that he advised defendant to sell, and the profits on resale should also be determined from the sale price as of said date, since plaintiff’s cause of action arose on said date.</p>

<p>1. Fraud — Misrepresentation as to Material Existing Fact.</p> <p>A representation by plaintiff’s agent that a contract for the sale of a lighting plant to defendant, who could not read, contained a provision that the plant was to remain the property of plaintiff until six months after its installation, and that if it did not work satisfactorily at that time plaintiff would remove it without expense to defendant, held, a representation as to a material existing fact, and, if false, and relied upon by defendant, constituted fraud.</p> <p>2. Same — Evidence—Question for Jury.</p> <p>In an action on a note given for the purchase price of a lighting plant, where the evidence was in conflict as to whether defendant was Induced to sign the contract by fraud, the court correctly declined to direct a verdict and properly submitted the issue to the jury.</p>

Mandamus by the L. J. Mueller Furnace Company to compel Guy E. Smith, presiding circuit judge of Wayne county, to vacate an order dismissing certain lien proceedings.