Blackwood v. Brown
| Decision Date | 14 July 1874 |
| Citation | 29 Mich. 483 |
| Court | Michigan Supreme Court |
| Parties | Robert Blackwood v. William Brown |
Submitted on Briefs April 22, 1874
Error to Wayne Circuit.
Assumpsit. Defendant brings error. Reversed.
Judgment reversed, with costs, and a new trial ordered.
Henry M. Cheever, for plaintiff in error.
Moore & Griffin, for defendant in error.
Graves, Ch. J. did not sit in this case.
In the court below Brown brought suit to recover moneys which were in Blackwood's hands under a written agreement that they were to be paid over to Brown when he should cause the discharge of two certain mortgages. One of the mortgages was discharged of record before the suit was brought; the other, Brown was allowed to show, was discharged by the giving of a quit-claim deed after suit brought, although it seems to have been actually paid before. The court charged the jury that if the plaintiff before the commencement of suit had paid the mortgages, or caused them to be paid "to the satisfaction of the defendant," that was sufficient, and would entitle him to recover. This instruction treated payment as synonymous with discharge; which we think was error. By the discharge of a mortgage, as the term is commonly understood, a discharge of record--something that relieves the land from the apparent lien--is intended; not a mere payment, that may rest for proof upon parol and perhaps disputed and doubtful testimony. And this we think was what the agreement called for. And though the defendant might have been entirely satisfied with the payment in this case, he would have been likely to still regard the discharge as important, and to have expected and relied upon its being procured. If the plaintiff claimed that a discharge of record had been waived by defendant, he should have presented his case to the jury on that theory under instructions properly distinguishing a discharge from a payment; but this was not done.
It is suggested in the brief for the defendant in error that the doctrine of relation is applicable to the case, and that under it the discharge obtained after the commencement of suit may be referred to the payment which was made before and thus save the right of action. But the doctrine of relation is one for the advancement of justice, and is not applicable under circumstances when injustice must be the result. If Brown had no right of...
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