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02/26/76 BIROU v. THOMPSON-BROWN COMPANY

February 26, 1976

BIROU
v.
THOMPSON-BROWN COMPANY



Appeal from Oakland, Arthur E. Moore, J.

Leave to appeal denied, 397 Mich .

D. E. Holbrook, P. J., and J. H. Gillis and M. J. Kelly, JJ.

SYLLABUS BY THE COURT

1. Principal and Agent -- Existence of Agency -- Jury Questions -- Written Agreements.

The existence of an agent-principal relationship is generally for the jury to decide if any evidence as to its existence is presented at trial; however, where the relationship of the parties is defined by written agreement it is the province of the trial Judge to determine the relationship.

2. Principal and Agent -- Test -- Right to Control -- Written Agreement.

The test of principal and agent is the right to control, and a trial court properly found an agency relationship where a written agreement between a subdivision developer and a sales agent-contractor retained for the developer the right to cancel the agreement under specified conditions, the right to approve any changes sought in deed restrictions, and the right to enforce certain express conditions as to builders and pricing arrangements.

3. Pleading -- New Theory -- Prejudice.

A party may not inject a new theory into a case where the result would prejudice adverse parties.

4. Motions -- Directed Verdict -- Meaning of Evidence.

A motion for a directed verdict is properly denied when, considering the facts in the light most favorable to the adverse party, reasonable men could differ as to the meaning of the evidence.

5. Witnesses -- Opinion Testimony -- Qualifications of Witnesses -- Judge's Discretion.

The determination of the qualifications of a witness to give opinion testimony is within the discretion of the trial Judge, and a plaintiff may be allowed to testify as to the value of his property.

6. Witnesses -- Evidence -- Judge's Discretion -- Rebuttal Testimony -- Pretrial Summary -- Modification.

A trial court has the discretionary power to modify a pretrial summary and allow the parties to call witnesses who are not listed, and a court did not abuse this discretion in permitting a plaintiff to call a rebuttal witness where the court was satisfied that the plaintiff was acting in good faith and had not discovered the witness's existence until the trial.

7. Witnesses -- Expert Witnesses -- Opinion of Witnesses -- Absolute Certainty.

The opinion of an expert witness need not be stated in terms of absolute certainty to be admissible.

8. Witnesses -- Fraud -- Third Parties -- Similar Representations -- Impeachment.

Testimony of third parties as to representations made to them by a defendant, similar to those complained of by a plaintiff, may be admissible in an action for fraud if the representations were proximate in time, and may be used to impeach the credibility of participants in the transaction giving rise to the action.

9. Evidence -- Relevance of Evidence -- Judge's Discretion -- Appeal and Error.

The relevance of evidence is to be determined by the trial Judge, whose exercise of discretion is to be affirmed unless an abuse of discretion is manifest.

10. Indemnity -- Torts -- Active Tortfeasors -- Passive Tortfeasors -- Causal Negligence.

A passive tortfeasor may seek indemnification because of the active tort of another; when one is compelled to pay damages another ought to pay, the former may recover the sum so paid from the latter if the ...


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