Abell v. Munson

• Citation: 18 Mich. 306
• Court: Supreme Court of Michigan
• Decision Date: 27 April 1869
• Parties: Oliver C. Abell v. Lewis R. Munson

18 Mich. 306

Oliver C. Abell v. Lewis R. Munson

Supreme Court of Michigan

April 27, 1869

Heard April 21, 1869; April 22, 1869 [Syllabus Material] [Syllabus Material]

Error to Wayne circuit.

This was an action to recover damages for not conveying certain real estate according to the terms of a certain contract.

On the trial, the plaintiff gave evidence tending to show that about the tenth of June, 1867, he made a verbal agreement with the defendant for the purchase of lot 16 (hereafter mentioned in written contract), and gave a note against Philetus Howe for $ 129.25, in full payment for the same; that nothing was said at the time of giving the note to defendant about the pecuniary responsibility of Howe, or about the note being as good as the cash; that before June 10th, he had offered said note against said Howe for said lot, and defendant did not take the note at that time from him, but said he would see about it; that about June 10th, he met defendant again, and defendant said he would take the note for the lot; defendant took the note and agreed to make the contract; that the written contract was to be made by defendant, and handed to him, witness; that said contract was delivered to witness three or four months after its date; and that on June 10th at the time of stating agreement, it was agreed that the written contract, when drawn, was to be dated back to the time of giving of note by witness to defendant; such was the understanding at the time note was given to defendant. Said contract was as follows:

"Articles of agreement made this 10th day of June, 1867, between Oliver C. Abell, of Wayne county, Michigan, and Lewis Munson, of the town of Nankin, Wayne county, Michigan. The said first party in consideration of the sum of $ 129 25/100 to him paid, hereby agrees to sell unto the said second party all that certain piece or parcel of land situated and being in the county of Wayne, state of Michigan, and described as follows: Lot No. sixteen (16) in the village of Wayne, in O. C. Abell's addition to said village, and according to the plat thereof, be the contents of said lot more or less, which the said second party has paid the first party for said lot, one hundred and twenty-nine 25/100 dollars; said payment being a note against Philetus Howe. Said second party also agrees to pay all taxes and assessments that shall be taxed or assessed on said premises from the date hereof, until said sum shall be fully paid as aforesaid; and the said party of the first part, on receiving such payment, at the time and in the manner above mentioned, shall, at his own proper cost and expense, execute and deliver to said second party, or to his assigns, a good and sufficient warranty deed, as soon as said first party gets said plat surveyed and recorded.

"It is mutually agreed between said parties that the said party of the second part shall have possession of said premises on the first day of September, 1867, and he shall keep the same in-as good condition as they are in at the date hereof, until the said sum shall be paid as aforesaid; and if the said party of the second part shall fail to perform this contract, or any part of the same, said party of the first part shall, immediately after such failure, have the right to declare the same void, and retain whatever may have been paid upon such contract and improvements that may have been made on said premises, and may consider and treat the party of the second part as his tenant, holding over without permission, and may take immediate possession of the premises and remove the party of the second part therefrom; and it is agreed that the stipulations aforesaid are to apply to and bind the heirs, executors, administrators, and assigns of the respective parties.

"In witness whereof the said parties have hereunto set their hands and seals the day and year first above written.

(Signed) "O. C. Abell."

That about ten months after date of contract, and six or seven months after its delivery, witness called upon defendant and demanded a deed; that defendant said he wanted to talk with him, and made no other reply; that a few days afterwards he called again, and defendant made the same reply; that a few days after that, he called the third time, and defendant said he had seen Howe, and that Howe said that he himself was not responsible, and was insolvent at the time he, defendant, took note of plaintiff, and was then irresponsible and insolvent, and that the representations which defendant claimed witness made to him were untrue, and that he, defendant, would not give a deed; that witness said to defendant that Howe would not swear to his irresponsibility. Plaintiff also gave testimony tending to show Howe's responsibility; also, that when defendant first spoke about selling the lot, he had a draft of it on paper, and said it was four by eight rods; and when he first spoke to defendant about buying the lot, in June, 1867, defendant said he should have it platted and recorded within three months. Witness, having shown himself familiar with the value of land property in Wayne, was asked by counsel for plaintiff what the market value of said lot sixteen was at the time he testified that he demanded the deed, to which question counsel for defendant objected as irrelevant; but said objection was overruled, and counsel for defendant excepted. Witness stated it was worth one hundred and fifty dollars ($ 150).

The plaintiff further testified that said lot was to be platted and surveyed four rods by eight rods, and the value was estimated by the witnesses on that basis.

Counsel for plaintiff then rested his case.

The defendant, being sworn, gave evidence tending to show that at the time of receiving the note from plaintiff the plaintiff represented to him that it was as good as the cash, and that the maker was perfectly responsible.

That said note was due on demand, but that said plaintiff requested the witness not to call on Howe for payment for three or four months; that at the expiration of three or four months, defendant called upon Howe for payment, and within a week or two afterwards the plaintiff called on witness for a deed; that defendant informed plaintiff that he had seen Howe, and that Howe said he was not good for anything when defendant took the note, and plaintiff knew it; that defendant went to plaintiff three or four days before commencement of the suit, and tendered plaintiff the note for the first time, saying to him that it was not worth the paper written on; that plaintiff declined to receive...