Baumier v. Antiau

• Decision Date: 10 February 1887
• Citation: 65 Mich. 31,31 N.W. 888
• Court: Michigan Supreme Court
• Parties: BAUMIER and another v. ANTIAU.

31 N.W. 888

65 Mich. 31

BAUMIER and another v. ANTIAU.

Supreme Court of Michigan

February 10, 1887

Error to Monroe.

Action for damages for unlawful dispossession, brought by David Baumier and Martin Nadeau, appellees, against John B. Antiau appellant.

SHERWOOD J., dissenting.

I.R. Grosvenor, for plaintiffs.

C.A Golden, (Charles R. Whitman, of counsel,) for defendant and appellant.

MORSE, J.

The plaintiffs bring suit, in an action of trespass on the case claiming damages for being unlawfully, and with force and violence, dispossessed of certain premises in the township of Berlin, Monroe county, which they were holding under a lease from defendant and his wife, who were the owners in fee of the lands. The defendant claimed a relinquishment and surrender of the lease, and of the possession of the premises by plaintiffs to him, before the date of the alleged grievances stated in the declaration. The verdict of a jury in the court below gave the plaintiffs $400 damages.

Certain facts are undisputed, and will be first mentioned. March 13, 1882, the defendant, John B. Antiau, and his wife, leased the premises, a farm, in writing to plaintiffs for the term of three years, with the privilege of extending it to five years, the land to be farmed on shares. Antiau and wife were to pay the taxes, furnish two-thirds of the seed, and have one-half of the produce raised upon the place. Plaintiffs were to do all the farm work, harvesting, and threshing, and have half of the produce for their share. The plaintiffs took possession under this lease, and farmed the land up to some time in January, 1884, at which time they had a crop of wheat in the ground, and had done some plowing in the fall before for the purpose of getting ready to sow or plant spring crops. Antiau and wife were dissatisfied with plaintiffs' manner of farming, and claimed damages on account of the way the land had been worked. Plaintiffs also claimed damages from Antiau and wife for an alleged non-performance of the contract on their part. There was litigation pending between the parties in the circuit court, and on the twenty-fourth of January, 1884, Antiau had sued plaintiffs in justice's court. On the evening of that day, by mutual arrangement, the parties met at defendant's house, with some of their friends and neighbors, for the purpose of effecting a settlement of their difficulties. Here the dispute begins as to the facts. The testimony upon the part of the defendant tends to show that a settlement was made; that an agreement was made that defendant should discontinue his suit, and pay the costs. Plaintiffs were to pay the costs in the circuit court. They were to stay in the houses they were living in, upon the farm, until the fifteenth of March, 1884, and have what straw they wanted for their horses and cattle through the winter, and were to harvest the crop of wheat, and take their share. They were to yield up possession of the premises, except the houses, at once; and they said that Antiau could take possession that night, "right off," and that he could "consider the ground in his possession that evening." Defendant claims, and the testimony introduced by him tended to show, that he entered upon the farm next morning early, and worked upon the same afterwards, as occasion required, and that the violence claimed by plaintiffs was done on March and April to keep plaintiffs from interfering with his possession, which up to that time they had acquiesced in. The plaintiffs claim that, although there was considerable talk among the parties and their friends about a settlement that evening, and considerable wine drinking, they agreed to no settlement, and none was in fact made, and that the talk, as to settlement and any agreement made there, was by Julius Baumier, father of one of the plaintiffs, and that the plaintiffs did not consent to any talk or agreement by said Julius Baumier; that they never yielded up possession; and that they never saw defendant doing any work upon the place until some time in March. He was building a fence, and the plaintiff Baumier forbid him making such fence.

The first and main question to be determined upon the trial below was whether any settlement and relinquishment of possession took place, as claimed by defendant. The court erred in his charge to the jury in this regard. The instructions were misleading, and calculated to convey an impression to the jury that they must go beyond the question whether a settlement took place, and inquire into the consideration of such settlement. If a settlement was made, as claimed by defendant, there could be no question, and there was no dispute, as to the sufficiency of the consideration for the same. The parties were in dispute about their rights, and in litigation in regard to the leasehold contract. They met to compromise and settle their difficulties, and an arrangement by which the litigation was to be stopped, and the lease surrendered, without fraud, carried with it a sufficient consideration to support it. But the court instructed the jury, in substance, that they must find that Antiau "gave them a fair and sufficient consideration for giving up" the premises; and "that the bargain to surrender must have been made upon a good and fair consideration given by Antiau to the plaintiffs for their rights under the leasehold;" and that if they failed to find any such "full, complete, and valid bargain," the plaintiffs were entitled to recover. He failed to further instruct them as to what would constitute a good, fair, or sufficient consideration. This charge authorized the jury to determine in their own minds what would be a good and sufficient consideration for the surrender of the leasehold right of the plaintiffs. There was no fraud claimed in the settlement, and it was not pretended that there was any overreaching or advantage taken by Antiau. The parties met, and talked their differences over freely, and there was no deceit or duress practiced by Antiau. The plaintiffs simply claimed that they made no agreement themselves; and, if their friends made any for them, they did not consent to or acquiesce in it. The question should have been submitted to the jury as to whether or not there was a settlement. Under the testimony of all the parties present at the meeting, the jury had nothing to do with the question of the consideration for the agreement, if one was made.

The court further instructed the jury that, "in addition to the agreement to surrender, and in addition to the consideration which should have been given, the plaintiffs must actually give up the land, and put the defendant in rightful possession thereof, and the defendant must have actually entered into and taken undisputed possession of the lands, and exercised actual control, and used the lands as his own, in pursuance of the agreement, and with the consent and knowledge of the plaintiffs." This instruction was correct in the abstract, leaving out the matter of consideration; but the putting in possession of the defendant need not to have been a delivery by walking with him upon the lands in the day-time by the plaintiffs, and saying, "We give these premises up to you." But if plaintiffs said that night to defendant, "You can consider the ground in your possession this evening," or words to that effect, and, acting upon that statement, the defendant took possession the next morning, without let or hinderance from plaintiffs, and kept possession until the trouble in March, with their consent or acquiescence, the surrender would be as effective and valid as if the plaintiffs had broken a twig over the lands, or made any other symbolical delivery.

During the cross-examination of a witness who had been examined on the part of the defendant in chief by Mr. Golden, one of his counsel, Mr. Whitman, also counsel for the defendant, made an objection to a question asked by plaintiffs' counsel. The court said: "I think I shall have to require you to abide by the rules,--to hear one counsel on a side." Soon after, and while the cross-examination was still in progress, Mr. Whitman said: "I move to strike out"--The court interposed: "I cannot hear Mr. Whitman. Mr. Whitman. I take exception to the court not allowing me to make an objection. The Court. I don't take an exception from Mr. Whitman. I shall have to ask you to abide by the rule. Mr. Whitman. I wish to have it stated on the record that I rose to my feet to make a motion to strike out, not to ask a question of the witness, and I wish to take an exception to the refusal to allow me to make the motion. The Court. The court only insists that Mr. Golden is in charge of the witness, and he should make objections and be heard."

We do not think the rule will bear the construction put upon it by the circuit judge. Circuit court rule No. 63 provides that "on the trial of issues of fact, one counsel only on each side shall examine and cross-examine witnesses." It is not desirable for the interest of the parties litigant, who have the most at stake in the suit, that this rule should be extended to objections to testimony and arguments thereon. In the case at bar, Mr. Golden was the local or resident attorney of the defendant, and necessarily better acquainted with the facts to be adduced upon the trial than Mr. Whitman, who resided in another county. We may presume that the latter was employed more especially to look after the law of the case. Under the trial court's interpretation of rule 63, the defendant was precluded from receiving from Mr. Whitman the service for which he had probably employed him. If a party has the right to employ more than one counsel upon the trial of an issue of fact, which cannot be doubted, we think an arrangement by which one counsel examines...