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HENRY BARBER V. ER MILNER ET AL.

Deed absolute as security-Validity of parol trust in lands.

Parol evidence is admissible to show that a deed absolute on its face was intended as a mortgage.

A voluntary conveyance deliberately made and delivered without mistake or contrivance or any understanding for a reconveyance, and on which the grantor receives the consideration, is binding on him.

Where a wife signs a deed given as security, only on condition that on payment of the amount secured, the grantee shall convey the premises to a third person, the grantee cannot dispose of the property otherwise; and after he has conveyed as agreed, the validity of the trust to him cannot be questioned on the ground that it was not in writing.

Appeal from Genesee. Submitted February 11. Decided April 8.

BILL to set aside a deed. Complainant appeals.

E. M. Thayer and Newton & Howard for complainant.
George H. Durand for defendant.

MARSTON, C. J. We have no doubt whatever but that defendant's version of the facts in this case is correct.

The complainant being indebted to the Citizens' National Bank of Flint, in order to secure payment thereof executed and delivered to William L. Gibson, the cashier, a warranty deed of the premises in question. The complainant had accumulated considerable property, but because of a habit he had acquired of using intoxicating liquors to excess, he had lost portions thereof and become somewhat involved financially. In consequence thereof his wife, Phebe Barber, refused to join in the conveyance to Gibson until complainant agreed that on payment of the indebtedness to the bank, Gibson should convey the property to her or to

any person to whom

she should direct. Under this agreement and in pursu

ance thereof she joined in the conveyance, and afterwards directed Mr. Gibson to convey to Milner, who was her son-in-law. Milner paid the bank $1500, which was in excess of the amount due the bank, which surplus was placed to the credit of complainant and afterwards drawn out by him, and thereupon the property was conveyed to Milner. He afterwards conveyed to defendant Phebe Barber, receiving from her a mortgage to secure him for the amount he had paid the bank, and for sums advanced by him for insurance and taxes upon the property.

The cor

Such are the facts as we find them. In complainant's behalf it is claimed-First, that the conveyance to Gibson was intended to be but a mere security, and that parol evidence is admissible to show that a deed absolute on its face was intended as a mortgage. rectness of this position need not be questioned. Second, that the farther parol agreement to convey to Mrs. Barber would create an express trust in her favor, and that such a trust cannot thus be created under our statute. 2 Comp. L. §§ 4124, 4692. Two answers may be given to this position, either one of which may be sufficient to dispose of the present case.

The conveyance to Gibson was freely and voluntarily made and delivered. Although given to secure the bank, yet the consideration received by the grantor was something more than the amount due the bank, and this he received and retained. It was neither the agreement nor the understanding at the time this conveyance was made, that the grantee Gibson should reconvey upon payment of the amount due the bank, or of any other sum, or at any time, or upon any terms. The conveyance was a voluntary one, made with deliberation, without mistake or contrivance by any one, and binding upon the grantor. Jackson v. Cleveland 15 Mich. 94.

In the second place Mrs. Barber refused to join in the conveyance until it was agreed, upon payment to the bank of the consideration of $1500, the property should be conveyed to her or to such person as she should

43 MICH.-32

direct. She had a valuable interest in the premises, and if she declined to convey the same until such an agreement was made, and in reliance thereon joined in the conveyance to Gibson, a refusal by the latter to convey upon payment or tender of the amount would be a fraud upon her rights, and a court of equity would interfere to prevent the consummation thereof. Gibson could not under any circumstances be considered the absolute owner of the property, and having obtained the title as security upon an agreement to convey to a third party, the law would not permit him to claim or dispose of the property contrary to such agreement. Abbott v. Gregory 39 Mich. 70. No such question properly arises in the present case. Here he has conveyed as he agreed, the trust has been executed, and whether valid because not in writing, or not, is no longer an open question.

The decree must be affirmed with costs.

The other Justices concurred.

THE HALE MANUFACTURING COMPANY V. THE AMERICAN
SAW COMPANY.

Waiver Questions of fact.

An action for the price of goods sold involved the construction of an expression in the order given for them, unless the goods were accepted and the question of construction thereby waived. Held that the question of waiver was for the jury.

Error to St. Clair. Submitted April 7. Decided April 14.

ASSUMPSIT. Defendant brings error.

O'Brien J. Atkinson and Elliott G. Stevenson for plaintiff in error.

Whipple & Voorheis for defendant in error.

GRAVES, J. The defendant in error, being a company carrying on business in New Jersey, sued the plaintiff in error, a company doing business in this State, to recover the alleged contract price of twenty circular saws which the latter ordered of the former, and the court directed a finding for the amount sued for. Complaint is made of this ruling. The record contains exceptions also to the admission of a deposition, but the case is not so framed as to support them. The allegations of error are numerous, but they will not be separately noticed. Many of them are unimportant.

The bargain for the saws was by correspondence. They were sent by the seller and tried by the buyer, and payment is refused on the ground that they were not such saws as were ordered, and were not accepted. The general question is whether these were not matters to be decided by the jury. The negotiation was opened by a letter from the plaintiffs in error dated June 3, 1875, and the defendant in error forwarded an answer under date of June 5th. In this communication the secretary of the company wrote: "We have no doubt that for your work the saws should be of same thickness at eye and edge," and in giving its order on the 28th of June the Hale Company made it for "20 36-inch saws, 8 gauge straight." The saws sent and experimented with were found to be thicker at the eye than the rim to the extent of one gauge or more. This fact has never been questioned. The plaintiff in error insisted that this was directly contrary to the order, which specified "8 gauge straight," whereas the defendant in error claimed that the expression "8 gauge straight" did not mean that the saws should be all the way of the same thickness, but that the metal should be equally distributed on each side of a line through the center, and that the plaintiff in error left it to the saw company whether the saws should be tapering or not. It was consequently made a material question at the trial whether or not the expression "8 gauge straight," in the order given by the plaintiff in

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error, was to be understood as meaning that the saws were to have the same thickness at the eye and rim, and considerable parol testimony was given upon it." This testimony was not harmonious. The circuit judge, however, expressed the opinion that the point was for the court, and that the construction of plaintiff in error was correct.

It is not necessary to decide whether the judge was right in holding this question to be exclusively for the court, because the plaintiff in error was not prejudiced. It was contended for defendant in error that the plaintiff in error waived all objection based on the irregularity of thickness of the saws, and in fact accepted them. This position was controverted, and the question was material. The court, in directing the jury how to find, expressed the opinion that the view of the defendant in error was right. Upon consideration of the circumstances it appears clear to the court that the case, in this aspect of it, was for the jury, and that the court erred in declining to take their sense of the weight and significance of the evidence.

It is not needful to go further and discuss the case at large. The judgment must be reversed with costs, and a new trial granted.

The other Justices concurred.

THE ROGER WILLIAMS INSURANCE COMPANY V. MARK
CARRINGTON.

Insurance—Assignment of policy after loss-Parol change in policy.

The right to assign an accrued cause of action is statutory in Michigan and cannot be defeated.

A clause in an insurance policy providing for its forfeiture if assigned without the company's consent, cannot in Michigan prevent its assignment after the loss.