Taylor v. Parkview Memorial Assn.

Bushnell, J. I cannot concur in my Brother Reid’s proposal that we base decision in this case on the proposition stated in Bowdish v. Page, 153 N. Y. 104 (47 N. E. 44), that one occupying a position of trust should not be permitted to — “impair or destroy tbe vested beneficial interests of bis. cestuis. que irustent, upon tbe theory that, in bis efforts in behalf of tbe trust estate, be bad made an election of an inconsistent remedy.” *172 Furthermore, that ease is distinguishable on its facts. Consideration of the pleadings and the testimony in the matter before us requires concurrence with the trial judge’s statement: “Testimony was offered by the attorney for the plaintiff as to the extent • of his authority and of specific restrictions upon that authority. The alleged limitations upon his authority were not known to the defendant and were not made in its presence. This testimony was excluded upon the objections of the attorney for the defendant that it was hearsay, self-serving and an attempt on the part of the agent to prove by his own declarations the extent of his agency. A separate record of this testimony, however, was made on the request of the attorney for the plaintiff. “It is my opinion that the executor had the power to forfeit said contract as well as'to foreclose it, and that the agent and attorney for the plaintiff, Mr. Anhut, had sufficient authority to give a valid notice of forfeiture of the contract and that having done so all rights and liabilities based upon said contract were immediately terminated and that the plaintiff at that time made his election of remedies and cannot thereafter change his position whether based upon error or otherwise and claim the right of a deficiency decree. “It is further my opinion that the testimony offered as to the' limitation on the authority of the attorney for the plaintiff was not proper and not binding on the defendant. No testimony whatsoever was offered by the plaintiff himself at the hearing of the case.” The controlling authorities are those from which Mr. Justice Reid has quoted, vis., Chicago Boulevard Land Co. v. Apartment Garages, 245 Mich. 448, and Balesh v. Alcott, 257 Mich. 352. See, also, Stevens *173 v. Most, 251 Mich. 23; Dedmon v. Sarkesion, 252 Mich. 613; Picard v. Shapero, 255 Mich. 699; Trombley v. Koestlin, 266 Mich. 357; Malone v. Kugel, 281 Mich. 351; Weider v. Bogman, 285 Mich. 539. The basic rule was early expressed in Goodspeed v. Dean, 12 Mich. 352, where the Court said: Plaintiff elected to treat the contract as void, and gave defendant a notice to quit. By this election we think he must be understood as having also relinquished his right to the amount then due upon the contract. He could not treat it as void in respect to the rights which it secured to the defendant, and valid in respect to those which it secured to himself. Having declared it void as to the land, it was void also as to the payments which it had bound the defendant to make for the land. There was nothing therefore upon which plaintiff could base a right of action for either the principal or the interest which had become due upon it.” The decree dismissing plaintiff’s bill of complaint is affirmed, with costs to appellee. Carr¿ C. J., and Butzel,' Sharpe, Boyles, and North, JJ., concurred with Bushnell, J.