! No. 52762, instead of case No. 54584. This DWYER v. MANDELL, Wayne Circuit Judge. was the state of the proceedings on Novem (No. 219.) (Supreme Court of Michigan. July 26, 1917.) DIVORCE 268 - MANDAMUS 54-ALIMONY-ATTACHMENT-RIGHT TO WRIT. Where relator had brought one suit for divorce which had been dismissed, and a second suit wherein decree was rendered in her favor, including an allowance of alimony, but the decree was erroneously entered in the former suit, and a subsequent motion to correct the decree was also entered in such suit, she was not entitled to attachment to enforce collection of alimony nor to a writ of mandamus to require the attachment to issue unless she renewed application for attachment after a subsequent entry of an order for the entry of the judgment in the proper suit. [Ed. Note.-For other cases, see Divorce, Cent. Dig. §§ 754, 755; Mandamus, Cent. Dig. § 108.] Mandamus on the relation of Rita M. Dwyer against Henry A. Mandell, Wayne Circuit Judge. Writ denied. Argued before KUHN, C. J., and STONE, OSTRANDER, BIRD, MOORE, STEERE, BROOKE, and FELLOWS, JJ. ber 3, 1916, when the relator caused a petition for an attachment to be presented to the respondent, then the presiding judge in the chancery division of the Wayne circuit court, together with a proposed order for the attachment. The respondent refused to sign or make an order for the issuance of an attachment, but suggested that he would make an order requiring the defendant to appear before him and show cause why he should not be punished for contempt for a failure to obey the said decree. Relator's counsel thereupon made a motion to set aside his order denying the writ of attachment. This motion was denied, and mandamus is now sought to review this ruling. The relator bases her right to the relief sought upon Act No. 379 of the Public Acts of 1913, which is entitled, "An act to facilitate the collection of temporary and permanent alimony ordered to be paid in suits for divorce." The respondent in his return states the fol McHugh & Lee, of Detroit, for relator.lowing: "(7) Respondent respectfully shows unto the court that the proceedings in said Wayne cir cuit case No. 54584 have been enrolled and contain a decree that is not the decree used as the basis for these proceedings. "(8) Respondent shows that in the former proceedings between the parties to the divorce cause, being Wayne circuit court case No. 52752, which was ended by an order of dismissal based on stipulation, an affidavit was filed on October 24, 1916, more than 30 days after the decree had been entered in case No. 54584, in which Charles P. O'Neil, affiant, alleges that in said cause 52762, and asking the court, Judge the wrong decree had erroneously been entered Collingwood presiding, to sign and enter an amended decree, a copy of said affidavit is hereto attached, marked 'Exhibit A,' and thereafter a decree was signed and entered in said cause 52762. It is this decree that it is now sought to be used as a basis for the issuance of an at After counsel for the relator received a copy of the respondent's answer and noticed the erroneous indorsement upon the amended decree, a motion for correction of the erroneous entry was made, and on January 18, 1917, an order correcting that entry was PER CURIAM. On December 22, 1915, the relator filed a bill for divorce against her husband, Timothy Dwyer, Jr., in the Wayne circuit court in chancery, that cause being known as No. 52762. The defendant, who was duly served with a subpoena, had his appearance entered by his counsel, and thereafter a reconciliation was effected and, upon filing a stipulation by counsel for the respective parties for a discontinuance of the cause, the cause was ordered discontinued. On May 26, 1916, the relator again filed a bill for divorce against her husband, that cause being numbered 54584, in the Wayne circuit court in chancery. A chancery sub-tachment in cause No. 54584." pœna and injunction issued, and on the 1st day of June, 1916, a chancery summons, injunction, and copy of the bill of complaint, containing a prayer for temporary and permanent alimony, together with the petition and notice of hearing on the temporary alimony, were personally served on the defend-made by the circuit judge presiding in the ant. The hearing on the application for temporary alimony was duly had before one of the circuit court judges for Wayne county, and an order for temporary alimony and a solicitor's fee was made. The defendant's appearance was never formally entered in the second case, and an order pro confesso was filed, and the order entered in the regular manner. On September 19, 1916, the case was heard, and a decree entered granting the divorce and providing for the payment of alimony. It appearing that this decree did not agree with the findings of the judge who heard the case, an amended decree was prepared, which was also signed and filed, but inadvertently in the first case, chancery division of the Wayne circuit court. The respondent, among other reasons, defends his refusal to sign the order for an attachment upon the ground that the amended decree of October 24, 1916, has not been entered in cause No. 54584. The question of whether the relator was entitled to an order for an attachment upon the application of November 3, 1916, assuming that Act No. 379 of the Public Acts of 1913 is valid and should be construed as claimed by relator's counsel, must be determined, it seems to us clearly, upon the record in cause No. 54584 as it then stood and the showing made by the relator on her application for the attachment. It appears upon the face of the peti For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes tion for the attachment that the application was not based upon the decree actually signed and filed in the cause in which the application was made, for the application demands various items not included in that decree and on the whole a much larger amount. In a carefully prepared brief for the respondent counsel contend that the said Act No. 379 of the Public Acts of 1913 is repealed by the Judicature Act, because the Legislature in that act substantially re-enacted all the provisions of chapter 301 of the Compiled Laws of 1897, as amended by Act No. 213 of the Public Acts of 1899, relative to attachments for contempt for nonpayment of alimony in suits for divorce, and enlarged it also to include alimony awarded in suits for separate maintenance. See Judicature Act (Pub. Acts 1915, No. 314) c. 5, § 1, subd. 5, § 4. It is claimed that Act No. 379 of the Public Acts of 1913, if valid, must have operated as a repeal pro tanto of chapter 301 of the Compiled Laws of 1897 as amended by Act No. 213 of the Public Acts of 1899. It is also urged that Act No. 379, so far as its provisions attempt to authorize the arbitrary arrest and detention of an alleged delinquent, without any previous notice, demand, or opportunity to be heard, upon a mere showing that payment has not been made, is unconstitutional. See Steller v. Steller, 25 Mich. 159. However, in view of the elementary rule that the writ of mandamus will not be awarded unless the relator shows a clear right to have done the thing sought to be compelled by the writ, we do not find it necessary to pass upon these questions. Clearly, upon the record here made, the relator was not entitled to the order applied for on November 3, 1916. See Orsland v. Wayne Circuit Judge, 138 Mich. 395, 101 N. W. 552. If relator desired to take any benefit of the order of January 18, 1917, she should have renewed her application for an attachment upon the record as it stood after the entry of that order. The writ must be denied, but without costs to either party. LAKE ERIE LAND CO. et al. v. CHILINSKI et al. (No. 121.) (Supreme Court of Michigan. July 26, 1917.) 1. EVIDENCE 434(8), 448-ADMISSIBILITYPAROL EVIDENCE EXPLAINING WRITINGS. Where a written instrument is unambiguous, parol testimony is inadmissible to explain, or to change, vary, or contradict, its terms; but where the issue involves the question of fraud, evidence of what was said, tending to establish the fraud, is admissible. [Ed. Note.--For other cases, see Evidence, Cent. Dig. §§ 2012, 2066-2082, 2084.] 2. VENDOR AND PURCHASER CHANTABLE TITLE -PERFORMANCE. 130(2)-MER CONTRACTS TO CONVEY If an abstract does not on its face show a merchantable title, and it required parol proof to establish the fact that the title is a merchantable one, a contract agreeing to furnish an ab stract showing a merchantable title is not complied with. [Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. § 246.] 3. VENDOR AND PURCHASER 86 CONTRACTS TO CONVEY-RIGHTS OF PURCHASER -ABANDONMENT. Where plaintiffs' assignor and defendants contracted, the assignor to buy and the defendants to sell, certain realty, with payments due pay, finally consenting that the property be sold at a specified time, and the assignor failed to to another, and after such other sale sought to establish his contractual rights, he must be held to have abandoned the contract. Purchaser, Cent. Dig. §§ 144-146.] [Ed. Note.-For other cases, see Vendor and 4. VENDOR AND PURCHASER 227 INNO KNOWLEDGE OF CON The actual purchaser, who read over the contract with plaintiffs' assignor, was not an rights defendants had. innocent purchaser, but he acquired whatever [Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. § 474.] - 5. EQUITY 281 - PLEADING AMENDMENT DURING TRIAL-DISCRETION OF COURT. to permit the filing, during the hearing, of an It is within the discretion of the trial court amended answer in the nature of a cross-bill. [Ed. Note.-For other cases, see Equity, Cent. Dig. § 572.] 6. SPECIFIC PERFORMANCE OF COURT. 8-DISCRETION remedy of right, but rests in the sound discre Remedy by specific performance is not a tion of the court, which should not be exercised unless the case is clear, and should never be exercised unless the moving party comes into court with clean hands. formance, Cent. Dig. §§ 17, 18.] [Ed. Note. For other cases, see Specific Per 7. SPECIFIC PERFORMANCE 16-DISCRETION OF COURT-UNCONSCIONABLE CONTRACT. Where plaintiffs' assignor and defendants contract, the assignor to buy and defendants to sell realty, with payments due in stipulated installments, and the assignor failed to make payments, owing to difficulties in financing the deal, and sought to delay the matter until he could, through organizing a corporation, secure the land, and consented to a sale to others, he could not have specific performance of the contract after such sale. [Ed. Note.-For other cases, see Specific Performance, Cent. Dig. §§ 29, 35, 36.] 8. SPECIFIC PERFORMANCE 130-RELIEF TO DEFENDANT-ACCOUNTING. Where one who had agreed to buy realty was put in possession, and sold personalty belonging to the vendor, and paid a small amount to the vendor out of sums so obtained, he was not, in suit for specific performance, entitled to an accounting as to such sums. [Ed. Note.-For other cases, see Specific Performance, Cent. Dig. §§ 424, 425.] 9. APPEAL AND ERROR 762-SCOPE of ReVIEW-PRESERVATION OF EXCEPTIONS. A question not raised in the court below, or in the original brief, cannot be raised in the reply brief, after submission to the court. Error, Cent. Dig. § 3097.] [Ed. Note.-For other cases, see Appeal and Appeal from Circuit Court, Wayne County, in Chancery; Nelson Sharpe, Judge. Action by the Lake Erie Land Company and another against Wladislaw Chilinski and For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes others. From the decree rendered plaintiffs though his available funds were somewhat appeal. Affirmed. tied up. We are clearly of the opinion that Argued before KUHN, C. J., and STONE, the impression then made by Lord, through OSTRANDER, BIRD, MOORE, STEERE, BROOKE, and FELLOWS, JJ. his representations as to his wealth and standing, the statements made by Shumway Sherman D. Callender and Walter M. in Lord's presence, and not disputed by him, Trevor, both of Detroit, for appellants. were the procuring cause of the contract Harry H. Wait, of Detroit, for appellees made the next day, and of the confidence Chilinski. Wilkinson, Routier & Hinkley, of reposed in Lord by the Chilinskis as to the Detroit, for appellee Stuart. Lucking, Helf-effect of its provisions. As a matter of fact man, Lucking & Hanlon, of Detroit, for Stan ton. FELLOWS, J. It will not be necessary or profitable to attempt a résumé of the pleadings in this case, which cover 79 pages of the record. The case must largely be disposed of as one of fact, and the pleadings are admittedly sufficient to permit disposition of the questions involved. We shall state the facts which we find established by the record, and only refer to the pleadings and the claims of the various parties as occasion may require. Defendants Wladislaw Chilinski and Teodozia Chilinski are husband and wife. They had lived in Detroit for 30 years, Mr. Chilinski was by occupation a merchant tailor; they had accumulated some property. On December 9, 1914, they purchased from defendant Stanton, on a contract, a farm of 300 acres, located below Detroit and fronting on Lake Erie. The consideration was $25,000; $15.000 was paid in cash and property, leaving $10,000 unpaid, and of which sum $2,000 was due December 10, 1915. Mr. and Mrs. Chilinski spent one summer on the farm. It would appear that Mrs. Chilinski grew somewhat discontented, and they became apprehensive that they would be unable to meet their payment, and decided in the early summer of 1915, that they would sell the farm. The farm, known in the record as the "Stanton Farm," was not all under cultivation. It had several houses, one called the "Club House," located near the lake, and the fishing privileges and paraphernalia were regarded as of some value. The Chilinskis engaged several real estate agents to sell the farm for them, among them being Perry Shumway. Their price was $25,000. On August 4, Mr. Shumway brought plaintiff Lord out to the farm and introduced him as a millionaire steel manufacturer of Toledo, who wanted to buy the farm. The farm was looked over quite thoroughly, some time being occupied, during which Lord took occasion to impress Mr. Chilinski with his wealth and importance, telling him that he was part of a big corporation, one of the best furnace and steel men; that he was going to meet Mr. Carnegie shortly to purchase a large amount of steel. He also impressed upon Mr. Chilinski that he must keep the transaction secret, as he (Lord) desired to buy more land around there to put up a furnace, and apparently was much impressed with the place and wanted to buy it, al Lord was a promoter pure and simple, totally unable financially to perform his part of the contract, with little standing in the community where he lived, with judgments and claims, large and small, hanging over him, with a record of unsuccessful promotions behind him, and without any bona fide belief on his part that he could swing the deal unless something turned up, or he might succeed in transferring his contract to other hands. It is patent on its face that, had not the Chilinskis believed Lord to be the prosperous business man he led them to believe he was, or had they actually known the true situation, no contract of any kind would have been entered into. [1] It was agreed that they should meet at Lord's office and execute the contract the next day. Shumway had put a price of $30,000 on the farm and agreed to share the excess with Mr. Chilinski. The next day the Chilinskis went to Detroit to execute the contract; they went to Mr. Lord's office on the seventeenth floor of the Dime Bank Building; the name on the door, "Border Steel Manufactory," and pieces of steel shown them, bore out the impressions created the day before. Mr. Lord prepared the contract, the Chilinskis not being represented by counsel; they took with them their contract with defendant Stanton, which Lord examined; he informed them that it was an unfair contract, and proposed to give them a better one. Considerable time was consumed in the preparation of this contract, and it was rewritten several times. Evidence was offered and received, over plaintiffs' objection, as to statements made by Lord during the preparation and execution of this instrument, which are claimed to be inadmissible for the reason that they tend to change the terms of a written instrument. The rule is well recognized that, where a written instrument is unambiguous, parol testimony is inadmissible to explain, or to change, vary, or contradict, its terms. But where the issue, as here, involves the question of fraud, evidence of what was said, tending to establish the fraud, is admissible. Something like four or five hours were consumed in the preparation of the contract, and it was finally executed in duplicate. By its terms it provided for no down payment. The first payment of $500 was payable on delivery of abstracts showing merchantable title, certified to date of delivery. This provision Mr. Chilinski demurred to, and wanted to make it September 1st, but was assured by Lord that this was in the Chilinski gave' way in that transaction. form of the contract and would have nothing to do with holding up the money. The next payment of $4,500 was due October 15th, $2,000 was due January 1st, and the balance in deferred payments. The contract provided for immediate possession by Lord. After the Soon after the abstracts were returned to execution of the contract, and on the same Lord, they were turned over to his attorney day, Mr. Chilinski obtained the abstracts of for examination. There was no unnecessary Mr. Stanton and delivered them to Mr. Lord delay on the part of the attorney in their to have them certified to date; Lord repre-examination. The abstracts were long and senting that he could have this done more complicated; the examination careful, painscheaply than Chilinski could. They had re-taking and exhaustive; all defects of major cently been certified, and there were no additional transfers to put on. On August 25th a short memorandum was signed by the Chilinskis and Lord, in which the Chilinskis agreed to sell some furniture in the club house, and some nets, boats, etc., including one-half interest in the fish in the fish pen, to Lord for $150, with the proviso that $350 additional should be paid if Lord's half interest in the fish were sold for $500, with a reduction in amount proportionate to the reduction below that figure that the fish brought. August 25th Lord organized and became president of the plaintiff Lake Erie Land Company, with $1,000 capital stock, of which $500 was paid in cash by Lord's wife, 48 shares standing in her name, and 1 share each in the name of Lord and H. E. Schiller. On August 30th, Lord assigned the contract with the Chilinskis to this corporation. It would render this opinion unnecessarily prolix to detail the many attempts of the Chilinskis to get some money from Lord, or his company, on this contract; they succeed ed in getting $50. Many times Lord's excuse was that the abstracts had not been returned from the abstract office. We have already stated that the abstracts were delivered to Lord August 5th; that the only thing to be done with them was to certify them to date, less than a year from their last certificate, with no new transfers to be put on. Lord says that he did not get them until October 7th, and claims the delay is chargeable to the abstract office. to us, however, a significant fact that three of the four bills rendered by the abstract company for services in certifying the abstract, and which are exhibits in the case, bear date August 25th, but were not paid It is until October 7th. The other bill bears no date, but was also paid October 7th. It is highly improbable that these bills antedate the performance of the services, and quite probable that, had Lord been as insistent in getting the abstract back from the abstract office as he claims, he would have been successful before the 7th day of October. A suit was commenced by one White, a real estate dealer, against Chilinski on August 31st, and garnishment proceedings were instituted against both plaintiffs. It appears from the testimony of White's former partner that White's claim was for services in making the sale to Lord, although the record or minor importance were discovered and noted; the result of the examination was opinions on the different abstracts that the abstracts did not show merchantable title. Two days before the first opinion was rendered on any of the abstracts, and on October 28th, Mr. Chilinski's attorney, Mr. Wait, wrote a letter to Lord and the company, demanding return of the abstracts and payment of the sums due on the contract on or before November 1st, or in default that the contract was declared forfeited. Plaintiff's attorney wrote Mr. Wait, in reply to this letter, explaining that the demands upon his time had prevented the examination of the abstracts, and inclosed copy of an opinion as to did not show a merchantable title. Thereaftone of them, with the claim that the abstract er negotiations continued between the atinskis and Stanton, and attempts were made torney for plaintiffs and those for the Chilto better perfect the record title. We are impressed that all of the attorneys were acting in the utmost of good faith, all of them believing that the transaction was a bona fide affair, and all of them trying to bring the deal to a conclusion; one of the suggestions being a chancery proceeding to quiet title, in which all defects appearing in the abstract might be cured. None of the defects were at all serious. We do not feel that the Chilinskis' attorney, by any act in trying to get the deal closed, waived their rights. [2] Through all the negotiations, and indeed throughout the litigation, it seems to be conceded that Stanton had a merchantable Most of the farm had been in the Stanton title, acquired through adverse possession. family for over 40 years, and all of it for a period beyond the statute of limitations. The distinction is most strenuously urged by plaintiffs between a merchantable title as matter of fact, and the showing of a merchantable title by an abstract. Counsel insists that one may have a merchantable title, even though the abstract does not show it, and urges that this contract calls for an abstract showing merchantable title, and that the abstracts do not show it. The distinction must be recognized. This court and other courts have recognized it. If an abstract does not on its face show a merchantable title, and it required parol proof to establish the fact that the title is a merchantable one, showing a merchantable title is not com- | der of the amount due defendant Stanton; plied with. The abstract itself must furnish April 20th a supplemental bill was filed with the evidence that the title is merchantable. | leave of the court. Answers to the original Quite likely Lord had this distinction in and supplemental bills were filed. An amendmind when he drew this contract. ed answer in the nature of a cross-bill was filed by defendant Stuart, during the hearing of the case, by leave of the court. It was clearly within the discretion of the trial court to permit this to be done. By this amended answer defendant Stuart asks that the Lord contract be declared a cloud on his title and removed. Defendant Stanton, in the court below and in his brief filed in this court, assumes a neutral attitude. [3] Persistent demands on Lord by the Chilinskis for money were fruitless. A payment of $2,000 was due to Stanton on their contract December 10th. The fore part of that month Chilinski went to see Lord in a last attempt to get some money. Chilinski and Lord alone were present at this interview. Their testimony as to what took place is in direct conflict. We must adopt as true one or the other of their versions of the talk. Mr. Chilinski claims that he explained that he must have the money to pay Stanton in order to insure Lord's getting the place, or he would have to sell it to some one else, and that Lord told him, if he had any customer, to sell the place. Lord denies that he said this. When we take into consideration the fact that several very reputable witnesses testified that Lord's general reputation for truthfulness was bad, consider all the transactions involved in this litigation, consider the fact that for four months Chilinski had been nagging him for money, and when we carefully read the testimony of these two men, as it appears in this record, we are bound to accept the version of Chilinski as to what took place, and particularly in view of the fact that nothing further was done by Lord until he learned that the place had been sold, when he at once became active. This must be regarded in this proceeding as tantamount to an abandonment and surrender of this contract. [4] The Chilinskis proceeded to sell the premises to defendant Stuart shortly after this conversation, but the deal was not closed until December 29th, when Stuart took an assignment of the Stanton contract, and deeded certain property to the Chilinskis, and paid the balance in cash. Stuart frankly states that he saw and read over the Lord contract. He was told by the Chilinskis and their attorney that the contract had been forfeited, but he made no inquiry of Lord as to his claim. We do not find that he was a bona fide purchaser, but by the assignment of the contract with Stanton he acquired all the rights of the Chilinskis, no more and no less. If the Lord contract was not enforceable against the Chilinskis, it was not enforceable against their assignee. [5] Lord soon learned of this transaction; this bill was filed on January 6, 1916, praying for a specific performance of the contract of August 5th. Prior to filing the bill no tender was made, although in the bill performance is offered. Later, and on February 16th, a tender to defendant Stanton of $2,000 was made, and on the same day a tender of $4,950 was made to defendant Stuart, and . a like tender was made to defendants Chilinski. On February 15th, $2,000 was deposited with the clerk of the court as a ten The case was advanced for hearing, and over a week was consumed in taking proofs. The trial court found that the Chilinskis were people of considerable intelligence, understood English fairly, but had little experience in making contracts, and little understood the meaning of many of the provisions of the contract drawn by Lord; that Lord was a clever promoter; that the contract was procured by misrepresentation, and was unconscionable; that Lord, when he procured the contract, was in no position financially to carry out its terms, and that it was procured by him for speculative purposes; that it was unenforceable in a court of equity, and should be set aside. The bill and supplemental bill were dismissed, and the prayer of defendant Stuart's cross-bill was granted. Plaintiffs were to be repaid the $50 paid to the Chilinskis and the costs of certifying the abstracts. [6, 7] With this disposition of the case we agree. This bill is filed to procure the specific performance of the contract. Remedy by specific performance is not a remedy of right. It rests in the sound discretion of the court. That discretion should not be exercised, unless the case is clear. It should never be exercised where the moving party does not come into court with clean hands, with equities in his favor. This unconscionable contract was procured by this clever and irresponsible promoter from this Polish couple, by misrepresentations well calculated to beget confidence, well calculated to deceive. They were anxious to dispose of the farm. Unskilled and inexperienced in the technical phraseology of legal documents, with the glamour of a millionaire steel man surrounding Lord, they were "clay in the potter's hands." With no one to protect their rights, Lord procured from them a contract which gave him immediate possession, with no down payment, so worded the contract as to permit protracted delays in perfecting the record title, and then told them it would not hold up the payment of their money, all the time holding himself out as a man of means, although wholly irresponsible. Had he not made a fortunate turn in a real estate deal pending this transaction, it is highly improbable any tender could have been made. Having procured the contract, he organizes a $1,000 corporation, with $500 paid in, to |