Allen v. Atkinson

• Court: Michigan Supreme Court
• Writing for the Court: Cooley, J.
• Citation: Allen v. Atkinson, 21 Mich. 351 (Mich. 1870)
• Decision Date: 05 October 1870
• Parties: John Allen v. John Atkinson

21 Mich. 351

John Allen v. John Atkinson

Supreme Court of Michigan

October 5, 1870

Heard July 11, 1870 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to St. Clair circuit.

This was an action of assumpsit brought by John Atkinson in the circuit court for the county of St. Clair against John Allen, to recover damages for the breach of contract to sell and convey a lot of land. The cause was tried before the circuit judge, whose findings of facts and conclusions of law are set forth in the record.

Findings. "The court having been requested to find the facts and his conclusions of law thereon, finds the facts as follows:

"1st. That the plaintiff and defendant, on the 20th day of July, 1866, entered into an agreement, in writing, of which the following is a copy: 'Memorandum of an agreement made this 20th day of July, 1866, between John Allen and John Atkinson, both of St. Clair county, witnesseth: That said John Allen has this day sold to said John Atkinson all that piece or parcel of land contained within the inclosure on the corner of Seventh and Pine streets, on the north side of Pine street, for which the said John Atkinson is to pay the sum of two thousand dollars--$ 1,000 down, and $ 1,000 in two equal annual payments, with interest at ten per cent per annum. Witness our hands and seals the day and year first above written. John Allen, John Atkinson. In presence of O'Brien J. Atkinson, James J. Atkinson.' Which agreement was afterwards acknowledged and recorded.

"2d. That this agreement referred to the lots described in the plaintiff's declaration, and was intended by the parties to apply to them, and none other.

"3d. That the next day after the contract was made, Allen and his wife called at the office of the plaintiff, for the purpose of making a deed of said premises, in pursuance of said agreement, and while the deed was being prepared, plaintiff inquired about the title to the lots, and there being no abstract furnished by defendant, plaintiff asked time to examine the title, before the papers were finally executed and delivered--plaintiff at the same time saying to defendant that he would pay him such money as he wanted to use in the mean time--but refusing to execute the papers until he should first have an opportunity to examine the title. Whereupon the defendant got angry, and left the office, refusing to furnish an abstract.

"4th. That within the next thirty days, plaintiff became satisfied that the title to said premises was good, and on the 20th day of August, 1866, tendered to Allen $ 1,000, in legal tender government money, and his notes, secured by a mortgage on the place, for one thousand dollars, according to the terms of the agreement, and demanded a deed; but the defendant refused to accept the tender, or make the deed; the defendant being presented by the plaintiff with a deed prepared and ready for his signature. That upon such refusal plaintiff informed said defendant that said money so tendered, and the notes and mortgage, would remain in the hands of O'Brien J. Atkinson, ready for him at any time he should choose to accept it, and give a deed; but there was no proof that the tender was kept good.

"5th. That at the time said agreement was made, and at time of trial, said lots appeared, by the records of said county, to be incumbered by a mortgage to H. H. Emmons, dated August 10th, 1849, and due four years from date; but although the same was not discharged of record, yet it had in fact been paid.

"6th. That on the 30th day of November, 1866, one George W. Pinkham negotiated with Allen for the purchase of said property. The plaintiff had, before that time, filed his bill for a specific performance of said agreement, against said Allen. And said Pinkham having learned the fact, and being anxious to purchase said premises, went to said Atkinson, and after some negotiation, in consideration of $ 100, paid to plaintiff, procured him to release his right to a specific performance, and look to Allen personally for any damage resulting from the non-performance of said agreement. And said plaintiff gave said Pinkham a receipt, in the words and figures following, viz.: Received of George W. Pinkham, $ 100, for which I waive my right to a specific performance of a contract, dated July 20th, 1866, between myself and John Allen, and agree to look to John Allen, personally, for any damage resulting to me by reason of said contract. John Atkinson Port Huron, November 30th, 1866.

"7th. That at the same time, Allen's solicitor stipulated with plaintiff that the bill for specific performance be treated as discontinued without prejudice.

"8th. That on said 30th of November, 1866, Allen and his wife conveyed the premises to Pinkham, by a warranty deed, with full covenants, with this exception, written under the covenant of warranty, to wit:

"'Except as to the claim of John Atkinson, under and by virtue of a memorandum of agreement between John Allen, of the first part, and said Atkinson therefor, under which said Atkinson claims to be entitled to a deed upon certain terms.'

"9th. That Atkinson, at the time he made the receipt, and received the $ 100, knew of the contemplated trade between Pinkham and Allen.

"10th. That at the time the agreement was made, and at the time of tender, the market value of the property was two thousand eight hundred dollars.

"My conclusions, from the above facts, are, that the plaintiff is entitled to recover the difference between the price fixed by the contract and the market value thereof, and that he should have judgment therefor, less the $ 100 received by him from Pinkham, to wit: $ 700."

For which sum judgment was entered, and the defendant brings the cause by writ of error to this court.

Judgment affirmed.

W. T. Mitchell, for plaintiff in error:

1. By the proofs and findings of the said circuit judge, it does not appear that Atkinson was ready to complete and fulfill the contract, as set forth in the declaration, on his part; nor that Allen did not fulfill the same on his part. The contract, by its terms, required the plaintiff below (defendant in error), to pay $ 1,000 down, which was not done, and which defendant in error refused to pay, the next day, except on terms. Atkinson was then entitled to his deed, which Allen offered to make, and did substantially make; and if the title was then perfect, as it afterwards proved to be, Atkinson was bound to accept the same and pay the money agreed upon: Hill v. Fisher, 34 Me. 143; Perry v. Wheeler, 24 Vt. 286.

II. After making the supposed tender, by Atkinson, he did not keep the same good. Tenders are stricti juris, and nothing will be presumed in their favor: Shotwell v. Dennman, Coxe, 174. In order to constitute a legal tender, it is necessary, as a general rule, that the money be actually produced, and placed within the power of the creditor to receive it: Sands v. Lyon, 18 Conn. 18. A tender must be continually ready, or it will be bad: Besancon v. Shirley, 9 S. and M., 457; Jarboe v. McAtee, 7 B. Mon., 279; De Wolf v. Long, 2 Gilman 679; Sloan v. Petrie, 16 Ill. 262; Livingston v. Harrison, 2 E. D. Smith, 509; Walker v. Brown, 12 La. An., 266; Cullen v. Green, 5 Harrington (Del.), 17; Mason v. Croom, 24 Georgia 211; Brock v. Jones, 16 Tex. 461; Clark v. Mullenix, 11 Ind. 532; Baker v. Brink, 5 Clarke (Iowa), 481; Gower v. Hager, 15 Cal. 208; Marine Bank v. Rushmore, 28 Ill. 463; Mohn v. Stoner, 14 Iowa 115; Rudolph v. Wagner, 36 Ala. 678; Hayden v. Anderson, 17 Iowa 158; Rosevelt v. N. Y. & E. R. R. Co., 45 Barb. 554; Webster v. Pierce, 35 Ill. 158; Kortright v. Cady, 23 Barb. 490.

III. The tender was insufficient, and did not cover the amount then due. "A tender, after the day mentioned, must include interest:" Hamar v. Dimmick, 14 Ind. 105; Randolph v. Wagner, 36 Ala. 698.

IV. It does appear, by the findings and proof, that Atkinson released and discharged the property, for the conveyance of which the said contract was made, and so released and discharged any cause of action he might otherwise have had against the said John Allen.

V. Atkinson's receipt to Pinkham, the purchase from Allen, with the knowledge and assent of Atkinson, was a release and discharge of Allen from any claim Atkinson had against Allen, by reason of the contract.

The case at bar is an instance of the absolute release, for a full consideration, of the property sued for. This must necessarily be a release and discharge of all right of action for not conveying the same property: Franklin v. Hart, 7 J. J. Marsh, 338; Howard v. Wilmington & Susq. R. Co., 1 Gill. 311; Sigsmun v. Morrow, 6 Iredell 24; Selby v. Hutchinson, 4 Gilm. 319; DePeyster v. Palon, 3 Barb. Sup. Ct., 284; Raymond v. Bearnard, 12 Johns. 451.

We ask the question, how the defendant, with any effect, could have tendered a deed and offered to convey, after the plaintiff, for a consideration, had waived and by waiver released his right to a conveyance. We insist that such waiver was not only a rescission in part, but a satisfaction in full, of the contract. In this case there was no defect in title; and the plaintiff voluntarily put it out of his power to demand, or even to accept of a conveyance: Grove v. Donaldson, 15 Penn. St. R., 128; Parker & Co. v. O'Hern, 8 Md. 197; Haslack v. Mayor, 2 Dutch. 284; Harris v. Bradley, 9 Ind. 166; Wright v. Haskell, 45 Me. 489; Haldeman v. Chambers, 19 Tex. 1; Attix v. Pelan, 5 Clarke (Iowa), 336.

VI. The finding of the circuit judge, of damages, was contrary to the facts found.

If we are right in the conclusion that the plaintiff, having waived a right to a conveyance, released all right to damages, for non-conveyance, then we are right in ...