Vanderkarr v. Thompson

Decision Date12 July 1869
Citation19 Mich. 82
CourtMichigan Supreme Court
PartiesJoseph Vanderkarr v. James L. Thompson

Heard July 9, 1869 [Syllabus Material] [Syllabus Material]

Error to Shiawassee Circuit.

This was an action of trespass brought in the Circuit Court for the County of Shiawassee, by James L. Thompson v. Joseph Vanderkarr, for entering upon the land in the possession of the plaintiff and cutting and carrying away a quantity of wheat. The plaintiff's possession had been obtained under written contract for the purchase of the land on which the wheat was growing at the time of the purchase. The defendant pleaded the general issue and gave notice of the sale of the land by him to the plaintiff; that the wheat in controversy was growing on the land and had been expressly reserved at the time of the sale; and that in pursuance of the agreement the defendant had entered upon the land and harvested and carried away the wheat. On the trial a witness who had testified that he was present at the making of the contract was asked whether "any part of the wheat then growing on the land was reserved from the operation of the contract?" and "what was said, if anything, between the parties immediately after signing the contract and before they separated, about the wheat then growing on the land?" The questions were objected to, as tending to contradict the terms of the written contract, and were excluded. The plaintiff had judgment; which the defendant below brings into this court by writ of error.

Judgment affirmed with costs.

Hugh McCurdy, for plaintiff in error.

The issue made by the pleadings was, that the defendant cut and carried away the plaintiff's wheat,--the defendant replies, "if I did so, I reserved the wheat growing on the land when I sold it to you, and cut and carried away by your consent."

The counsel for the plaintiff in the court below, objected to the evidence of the defendant to show this fact, as incompetent, and the Circuit Judge so ruled, that the evidence offered tended to contradict the written contract given in evidence in the cause, and excluded the evidence. We claim the court erred in this ruling, for the following reasons:

1. By the common law growing crops are personal property, but pass by conveyance as appurtenant to the land unless severed by reservation, or exception. The nature of such a reservation is a collateral executory contract that our statute does not require to be in writing, and therefore need not be.

2. Our statute follows the course of the common law (Sec's 4,463-4), and provides that growing grain and unharvested crops may be levied upon by execution and sold, thus recognizing the distinction between real and personal property.

3. It is competent for a party to show by parol, that growing crops were reserved on the sale of land, although the contract of sale or deed contains no exception.

4. Such reservation need not be in writing, as it is not an interest in the land, but appertains exclusively to personal property.

5. The evidence offered was also competent to go to the jury, as it tended to show that when the defendant took the wheat, he not only did so by virtue of a reservation, but that he had a license from the plaintiff to take the wheat.--Backenstoss v. Stahler's Admrs. 33 Penn. (9 Casey), 251; Harbold v. Custer, 44 Penn. (8 Wright), 392; Merrill v. Blodgett, 34 Vt. (5 Shaw), 480.

A parol license, is effectual to justify everything which may be done under it, prior to its revocation.--Miller v. Auburn & Syracuse R. R. Co. 6 Hill 61; Stevens v. Stevens (11 Met.); 1 Washb. on Real Property, 398, § 6; Selden v. Hudson Canal Co. 27 N.Y. 634.

It will be insisted by the counsel for the defendant in error, that the evidence offered tended to contradict the written contract, but, is this so?

The contract is silent about the crops growing on the land when it was executed, and the evidence offered was two-fold in its character; first, the wheat was not to be embraced in the contract,--second, that after it was executed, the parties agreed that the wheat was the defendant's; which would have been establishing a collateral and independent fact, about which the contract was silent.--Kean v. McNitt, 6 Minn. 513; Ruggles v. Swanwick, 6 Mich. 526; Facy v. Otis, 11 Mich. 213.

Gould & Lyon, for defendant in error.

The sale of the farm, upon which the wheat was growing, carried with it the wheat, which is the subject of this controversy; the agreement was reduced to writing, and contains no reservation of the wheat.

We claim that when the written agreement has no ambiguity to be explained, a court of law will not admit parol proof to alter or vary its terms.--Street v. Dow, Harrington Ch. 427; Adair v. Adair, 5 Mich. 204; Jones v Phelps, 5 Mich. 218; Schwartz v. Wendell, Walker's Ch. 267; Stange v. Wilson,...

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27 cases
  • Richards v. Fuller
    • United States
    • Michigan Supreme Court
    • June 20, 1877
    ...Loring 10 Cush. 267; Foot v. Bentley 44 N.Y. 166. J. A. Fairfield for defendants in error, cited Martin v. Hamlin 18 Mich. 354; Vanderkarr v. Thompson 19 Mich. 82; Van Ostrand Reed 1 Wend. 424, 431; Mumford v. M'Pherson 1 Johns. 414; India Rubber Co. v. Adams 23 Pick. 256; Smith v. Dallas 3......
  • Kulenkamp v. Groff
    • United States
    • Michigan Supreme Court
    • October 19, 1888
    ... ... Phelps, 5 Mich. 218; ... Sutherland v. Crane, Walk. Ch ... 523; Martin v. Hamlin, 18 Mich ... 354; Adair v. Adair, 5 Mich. 204; ... Vanderkarr v. [71 Mich. 680] Thompson, 19 ... Mich. 82 ; Beers v. Beers, 22 ... Mich. 42; Gram v. Wasey, 45 Mich ... 223, 7 N.W. 84, 762. For cases ... ...
  • Heyer v. Lee
    • United States
    • Michigan Supreme Court
    • January 31, 1879
    ...cannot be explained by parol, Ins. Co. v. Throop, 22 Mich. 146. A parol reservation cannot be made after a contract is signed, Vanderkarr v. Thompson, 19 Mich. 82. No evidence admissible to contradict the terms of a written contract, Adair v. Adair, 5 Mich. 204; Schwarz v. Wendell, Walk. Ch......
  • Cantrell v. Crane
    • United States
    • Missouri Court of Appeals
    • February 5, 1912
    ... ... 224; ... Chapman v. Long, 10 Ind. 465; Turner v. Cool ... (Ind.), 85 Am. Dec. 449; Brown v. Thurston ... (Me.), 96 Am. Dec. 438; Vanderkarr v. Thompson, ... 19 Mich. 82; Adams v. Watkins (Mich.), 61 N.W. 774; ... McIlvaine v. Harris (Mo.), 64 Am. Dec. 196.] The ... principle is ... ...
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