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We think that this obligation has been performed on the part of Applebaum.
We do not understand that there is any complaint by complainants of anything done by these defendants before the commencement of the foreclosure proceedings. Still complainants' counsel urge that, while Mr. Applebaum was to have his own way as to the method, he specifically agreed in the contract above quoted from, to bring about a settlement of the affairs of the Detroit, Flint & Saginaw Railroad, and that he was authorized and bound, as one of the ways, to foreclose the mortgage, to buy in the property, and reorganize, in the interest of all the bondholders and creditors. We do not so read the contract. We think that counsel have here ingrafted upon that arrangement a proposition which had never been discussed, to the effect that Mr. Applebaum should purchase at a foreclosure sale, wherein and whereby the rights of all the stockholders and bondholders would be cut off, and then hold the property for the benefit of all these people. Ap-. plebaum had in the foreclosure case been adjudged the owner of these bonds to the amount of $226,500, and had invested $108,274.24 therein.
It is undisputed that Applebaum refused to use the bonds of the Hude estate in purchasing at the foreclosure sale. We are unable to find anywhere in this record, except in the testimony of complainant Sullivan, the idea or the fact that if defendant Applebaum found it necessary (after an honest endeavor to save the property for the old corporation) to resort to a foreclosure of the mortgage, that he agreed to bid in the property for the benefit of these complainants, or anybody else. The testimony of complainant Sullivan, to the effect above stated, is so discredited by the testimony which he gave in the foreclosure case, and by his own affidavit and by his conduct, that we are unable to believe it. We have read with care the testimony of all these parties. We cannot copy it into this opinion without extending the same to an unreasonable length.
We cannot agree with complainants' counsel wherein they claim that the testimony of defendant Groesbeck supports their contention. Counsel for complainants contend that neither Mr. Tarsney nor Sullivan was a party to the foreclosure suit. We think that there is an inaccuracy in the finding of the circuit judge upon this point. The record shows that Mr. Tarsney was cited in as a party to the hearing upon which the supplemental decree was made. Sullivan was present and testified in that matter. It is undisputed that Sullivan, as the then owner of certain other bonds, united with Applebaum in requesting the trustee to institute foreclosure proceedings. But can it be said, whether Tarsney and Sullivan were, or were not, formal parties, that they were not bound by the foreclosure decree? Whatever rights they had, in any event, were either as stockholders or bondholders. As stockholders they were represented by the mortgagor railway corporation, principal defendant in the foreclosure As bondholders they were represented by the trustee, the Detroit Trust Company, the complainant in the The decree of foreclosure ended their rights, both as stockholders and bondholders, just as effectually as if they had been made formal parties in the case. Most certainly upon the face of the proceedings when defendant Applebaum purchased at the foreclosure sale, the idea that the purchase was subject to a trust in favor of the bondholders is in direct conflict with the terms of the foreclosure decree, and the supplemental decree, which provided that any excess over the $108,274.24, and interest, derived from the sale, should be impounded and held by the receiver to await the further order of the court.
The conduct of the complainants in this case is worthy of some attention. A letter was written by T. E. Tarsney, on August 7, 1908, addressed to Mr. Applebaum, in which Mr. Tarsney uses the following language in connection with certain of the Yarnell Gold Cure stock then in the hands of Mr. Applebaum, and which was surrendered to Mr. Tarsney:
"I wish to state that I feel that you have done everything that you could reasonably be expected to have done in relation to my investments in the Detroit, Flint & Saginaw Railway, and that I am satisfied entirely and have no complaint whatever to make. I certainly wish you success.
Now, it is well to consider for a moment what had been done by Applebaum up to that time. He had bid in the property for himself, and in his own name, for $50,000. He had given complainant Sullivan an option agreeing to sell this property absolutely. He had refused to Sullivan, on repeated occasions, to take anything but cash or bankable paper to transfer the property. He had refused to use the Hude estate and the Tarsney personal bonds, either in bidding upon or making payment on his bid of the purchase price of the road. He had refused to have Mr. Tarsney and his friends associates in the enterprise with him as partners. He had repeatedly stated that he would not enter into any reorganization scheme with the other bondholders and creditors. These acts, which were all inconsistent with the claim of the complainants as advanced in this case, together with many others, were known to Mr. Tarsney when he made the above declaration in writing. It seems almost incredible to suppose that at that time Mr. Tarsney had any notion whatever of asserting such a claim as is asserted in this case. Should not said letter operate both as a release and estoppel? Sullivan's statement in writing at the time of the transaction with Peter when he gave the $2,000 note, although at a prior date, is equally significant as showing his understanding of conditions at that time, to wit:
"SAGINAW, M., Oct. 11, 1906.
"Mr. ISAAC APPLEBAUM:
"The assignment of the bonds and stock made to you by Mr. James B. Peter of Saginaw, this date, is understood by me [as] transferring all right, title and interest thereto to you, and free from any claim or equity on my
part, by reason of my having any separate transaction with said Peter or the payment or a promise to pay said Peter any consideration therefor by myself.
"T. G. SULLIVAN.”
There were many reasons why Sullivan should want the debts of the old company adjusted and paid. He was personally liable for some of them, and he had incumbered some of his real estate to secure payment of a part of them. His subsequent conduct is entirely and wholly inconsistent with his present position in this suit. So we come back to the main question in this case. Did defendant Applebaum, on October 1, 1906, enter into an agreement whereby he obligated himself in any event to buy the railway, or bid it in at the foreclosure sale, in the interest of the bondholders and creditors? We feel constrained to say, after a careful review of the evidence in this case, that the only testimony in this record which tends to establish that agreement is the testimony of complainant Sullivan given upon the hearing of this case. This testimony is opposed to the testimony of each of the four defendants, Groesbeck, Henderson, Applebaum, and Mitshkun. It is opposed, also, to the testimony given by complainant Tarsney and complainant Sullivan himself on the foreclosure case. We cannot agree with the contention that it is corroborated by the testimony of complainant Tarsney given in this case. It is not corroborated by the innumerable circumstances which are undisputed in the case. Indeed, nearly every circumstance connected with the case is at war with it. We are unable to find that any such agreement was ever made. The overwhelming weight of the evidence leads us to the opposite conclusion.
There is much force in the position of defendants' counsel, that the alleged agreement to purchase this road, its property and its franchises, is such an oral agreement as would be void under the provisions of section 9509, 3 Comp. Laws. But we do not place our decision upon that ground; but upon the evidence in the case.
have already said, the findings of the learned circuit judge cover all the issues raised in the case; and, after a careful perusal of the record, we feel confident in saying that his findings are borne out by the great weight of, and, in most instances, the uncontradicted, testimony in the case. It is our conclusion that the decree of the circuit court, dismissing the bill, should be affirmed, with costs.
Decree below affirmed, with costs to defendants.
MOORE, MCALVAY, BROOKE and BLAIR, JJ., concurred.
PETTINGER v. MONTMORENCY CIRCUIT JUDGE.
1. APPEAL AND ERROR-EXTENSION OF TIME TO SETTLE BILL OF EXCEPTIONS-NEW TRIAL-MOTIONS.
Appellant had a reasonable time, after denial of a motion for a new trial, in which to settle his bill of exceptions.
After the court had granted thirty days for that purpose, it might, for cause shown, upon sufficient notice by appellant to opposing counsel, make a further extension of time.
And the discretion of such court, exercised upon a showing sufficient to call for the exercise thereof, will not be reviewed on mandamus.
Mandamus by John Pettinger against Frank Emerick, circuit judge for Montmorency county, to compel respondent to vacate an order granting an extension of time for the settlement of a bill of exceptions. Submitted December 30, 1910. (Calendar No. 24,294.) ruary 1, 1911.
Writ denied Feb