Barrows v. Baughman

• Decision Date: 01 May 1861
• Citation: 9 Mich. 213
• Court: Michigan Supreme Court
• Parties: David Barrows v. John A. Baughman and others

9 Mich. 213

David Barrows v. John A. Baughman and others

Supreme Court of Michigan

May 1, 1861

Heard April 9, 1861; April 10, 1861 [Syllabus Material] [Syllabus Material]

Appeal by complainant from the Wayne circuit, in chancery.

The bill alleged that, on August 17, 1855, John A. Baughman was the owner of a tract of land in Springwells, conveyed to him by Bela Hubbard, containing about eighteen acres, and was about to erect a large and valuable brick house on nine acres thereof, described in the bill, and entered into a contract with Stephen S. Barrows for the building of the same, as follows:

"Articles of agreement made this 17th day of August, 1855, by and between John A. Baughman, of the city of Detroit, and state of Michigan, of the first part, and Stephen S. Barrows, of the said city and state, of the second part: witnesseth, that the party of the second part, for and in consideration of the covenants and agreements hereinafter named and specified to be performed by the party of the first part, doth agree for himself, his executors, administrators or assigns, to do all the interior joiner work according to the plans and specifications for the same, and the carpenter's and joiner's work of all the piazza, according to specifications signed by the parties to this contract, of a brick building intended for a dwelling-house, and also all the bay windows of said house, which is situated in the township of Springwells, Wayne county, Michigan, being built upon the following described lands, being part of the private claim seventy-seven, beginning at the southeast corner of a tract of land conveyed to John A. Baughman by Bela Hubbard by deed bearing date July 2, 1855, and recorded in the register's office of Wayne county, in liber 60 of deeds at page 344, said work to be done in a good, substantial, and workmanlike manner, according to said plans and specifications--said work to be fully done and completed on or before July 1, 1856. For and in consideration of the faithful performance of the foregoing contract, by the party of the second part, covenants and agrees for himself, his heirs, administrators, and assigns, the full and just sum of $ 4,000, to be paid within five years after the said work is done, with interest at eight per cent per annum, for which the bond of the first party shall be given, secured by a first mortgage on the above described premises as collateral; and for all work that has been done, or may by done by the day or otherwise not included in said contract prices, and for all materials furnished, or that may be furnished, for said work by second party, shall be paid for by the party of the first part at the usual price for such labor and material so furnished and done. It is further agreed, that the party of the first part is to furnish all the materials for the above described work, and all other work that may be required to be done, at his own proper expense and cost, and of such kind and quality as shall be required for said work, and when wanted by the said party of the second part, alterations in the above described work from the plans, deducting the difference in expense, where it costs less to do the work, and paying for all additional cost and expense that may be added, where the alteration adds to the expense of the work." Which contract was witnessed and acknowledged by the parties, April 2, 1856, and recorded in the register's office of Wayne county December 24th, 1856.

The bill alleged that it was the intention of both parties to the contract, that Stephen S. Barrows should have a mechanic's lien on said nine acres of land under the statute: "that Bela Hubbard, who was a son-in-law of said Baughman, when said contract was entered into was a subscribing witness to said contract, and he, the said Hubbard, well knew the object of said contract to be the same as hereinbefore set forth, and he had full notice and knowledge of said contract, and the object of it as hereinbefore set forth." It further alleges performance of the contract on the part of Stephen S. Barrows, its assignment to complainant, a refusal to pay on the part of Baughman, whereupon complainant applied to his attorneys to take legal proceedings to obtain payment or security, when for the first time he ascertained that a mistake had been made in drafting said contract, in consequence of which the nine acres intended to be described therein were not described at all, but only the point of commencement in the description was given.

The bill then set forth that Baughman, without consideration, mortgaged said nine acres to Hubbard, March 15, 1856, for $ 13,460; that the mortgage has been assigned to E. C. Walker and E. C. Litchfield, who had full notice of the contract, its object and intent, at the time of the assignment, and of complainant's lien under the same; that on December 26, 1856, Baughman also gave a mortgage to N. P. Stewart for $ 1,000 on the same premises; that this mortgage was without consideration, or, if given bona fide, Stewart had full notice of said contract, and that it was intended to give a lien upon said nine acres. And the bill claims, that if said mortgages were given upon any valuable consideration, they still ought to be postponed to complainant's lien.

The bill prays that the description of land in the contract be corrected; that the Hubbard and Stewart mortgages be declared void; that Baughman be decreed to pay the amount due under the contract, and that the nine acres be sold to pay the incumbrances, including what was due under the contract, in their order.

Baughman, Hubbard and Walker were required to answer under oath.

Walker and Litchfield answered, setting out a valuable consideration for the mortgage assigned to them, and denying that they knew anything of the Barrows contract at the time of the assignment.

Hubbard in his answer, admits his having witnessed the Barrows contract, but avers that, to the best of his recollection and belief, he signed his name as witness at the time of the execution of the contract, and not at the time of the acknowledgment; that he had only a general knowledge of the contents of the contract, that he never read the same to the best of his recollection, and only knew, generally, that it was a contract for the carpenter work on Mr. Baughman's house. He denies that he knew then or knows now how much or what part of the eighteen acres was intended to be described in the contract, or that any part was...