Bailey v. Cornell

• Decision Date: 05 May 1887
• Citation: 66 Mich. 107,33 N.W. 50
• Court: Michigan Supreme Court
• Parties: BAILEY v. CORNELL.

33 N.W. 50

66 Mich. 107

BAILEY v. CORNELL.

Supreme Court of Michigan

May 5, 1887

Error to Ingham.

R.A. Montgomery, for plaintiff.

H.B Carpenter, for defendant and appellant.

MORSE J.

The plaintiff sued the defendant in justice's court in assumpsit, and recovered a judgment for $60 and costs. Upon appeal to the Ingham circuit court, she again recovered before a jury, upon direction of the circuit judge, damages to the amount of $67.87. Her claim is that on the ninth day of December, 1884, she entered into a parol contract with the defendant to purchase a house and lot of him in Lansing, and at the time paid him $60 in cash, and took a receipt for the same. She at once moved into the house, and stayed there about two weeks. Upon becoming fully acquainted with the premises, she was not satisfied with the house, and she was not satisfied to pay Cornell the purchase price of it, $1,100, until a mortgage then existing as an incumbrance upon the property was paid off. She moved out of the premises, and demanded her money back. Upon Cornell's refusal to pay it, she brought this suit.

There is but little dispute about the facts. Cornell was acting as the agent of the owner of the house and lot for one Mrs Hinckley, who lived at Ithaca, in the state of New York. He had no written power of attorney, and his authority was shown by a letter written him by Mrs. Hinckley. The plaintiff understood that Mrs. Hinckley owned the premises, and that Cornell was acting as her agent. The receipt she received for her money was signed "SARAH HINCKLEY, per J. CORNELL Agent." On the fifteenth of December, 1884, a deed of the premises, sufficient in form, and a warranty, was executed by Mrs. Hinckley, and forwarded to Cornell, who presented or tendered it to the plaintiff. Mrs. Burr, who lived in Lansing, held a mortgage upon the house and lot for the sum of about $700.

The defendant offered to prove that the understanding between him and the plaintiff was that Mrs. Burr was to discharge her mortgage at the time the deed passed, and it was to be paid out of the money paid by plaintiff for the deed. He also offered Mrs. Burr as a witness to prove that she was cognizant of this arrangement, and was ready and willing to discharge the mortgage, and that the plaintiff came to see her, and made a bargain with her that the mortgage should be discharged with plaintiff's money, and that, acting upon such bargain, she drew up a discharge and had it ready for the plaintiff. These offers of testimony were excluded by the court; the circuit judge holding that no part of the bargain or transaction could be given in evidence except what appeared in the papers. This was error. The only paper showing the bargain between plaintiff and defendant was the receipt, as follows:

"Received, Lansing, December 9, 1884, sixty dollars, to apply on purchase of lot No. 4, in block No. 131, Lansing, State of Michigan, at the price of $1,100; the balance to be paid in 15 days from this date, provided the title to said lot is proved good, and on the delivery of good and sufficient warranty deed. Possession of said premises is this day

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