Brown v. Brown

• Decision Date: 11 January 1882
• Citation: 11 N.W. 205,47 Mich. 378
• Court: Michigan Supreme Court
• Parties: BROWN v. BROWN.

11 N.W. 205

47 Mich. 378

BROWN v. BROWN.

Supreme Court of Michigan

January 11, 1882

Specific performance of a parol contract will not be granted unless it is substantially the contract set forth in the bill and is clearly proved.

Appeal from Ionia.

Mitchell & Pratt, for complainant.

Wells &amp Morse, for defendant and appellant.

GRAVES C.J.

This bill was filed May 11, 1876, for the specific performance of an alleged oral agreement relating to certain premises in the city of Ionia, and the court made a decree for performance. A claim was set up for an accounting but was waived on the hearing. The controversy is between two brothers and it dates several years back of the filing of the bill. For a particular understanding of the dispute and of the actual case to which the judgment of the court must be confined it is necessary to recur to the bill and answer after a few preliminary words by way of preface.

In 1865 the defendant owned two frame buildings and the ground they occupied fronting on Main street in Ionia and in that year the buildings were destroyed by fire. In 1866 the defendant put up a brick building on the west part of the lot, leaving vacant some 15 feet frontage on the east and to which was appurtenant a right of way or passage of about 2 1/2 feet. Adjoining this vacant piece on the east was an unoccupied strip of 8 1/2 feet in width then owned by Mr. Chiddester. The owner of the premises next east of this strip, Mr. Titus, in the next year, that is 1867 proceeded to put up a brick building. There consequently remained unoccupied by any erection the strip belonging to the defendant and the adjoining one 8 1/2 feet wide belonging to Mr. Chiddester and if that space were to be built up the line of buildings would be unbroken and continuous. The side walls of the other buildings could be made available as far as they went back and the expense be thereby lessened.

In this state of things these parties in the year last mentioned proceeded as the bill states to enter into an oral contract by which the complainant was to buy the eight and a half feet next to Titus and then construct on the two parcels a two-story brick building with a basement. That the defendant thereupon should use and enjoy said building and have the rents and profits until such use and rents and profits should equal the value of the strip of ground and premises still in his ownership, such value being fixed at $70 per foot frontage for 17 feet, (or the round sum of $1,190,) and then on the occurrence of that result should convey to complainant the last-named parcel with all rights of way and passage and of party wall appurtenant. The bill goes on to aver that relying on such agreement the complainant immediately purchased the Chiddester strip and paid for it $610 and also acquired of Titus at large expense a party-wall right and in accordance with said agreement proceeded and caused to be erected and constructed a two-story brick building 80 feet deep with basement under it and extending over both pieces of land at an expense of $3,015. That immediately on the erection and construction of the building by complainant and as soon as it was fit for use the defendant went into possession and has ever since had the exclusive control and the entire use and enjoyment and has received all the rents except $150 which complainant received and applied in fitting up the basement. That the value of said use and the rents and profits actually received by the defendant have far exceeded the agreed price of $1,190. That about two years prior to the bill and after defendant had received in rents and profits more than sufficient to satisfy the consideration mentioned the complainant demanded of defendant a conveyance in compliance with the agreement and the defendant utterly refused.

The statements of the answer are wholly different. The defendant there admits that he requested complainant to buy the Chiddester strip but denies that it was purchased for the purpose or in the manner set forth in the bill. He avers and insists that it was brought in complainant's name for the defendant and in trust for him and that the money used therefor was in part furnished by complainant and in part by defendant, and that defendant has since paid complainant every dollar he so advanced with the interest added, and that said strip although now standing in complainant's name is in equity the defendant's property.

The answer distinctly denies that the parties contracted as claimed in form or substance and avers that the only agreement made in reference to the building was that the complainant would from time to time advance moneys to be used in the erection and completion of it and of which an account should be kept; that such advance should be a loan from complainant to defendant without security and be repaid with interest. That defendant put up the building and mostly with his own means. That complainant during the early part of the work did loan to defendant about six or eight hundred dollars in money and materials, and then absolutely refused to lend any more, and that defendant thereafter and long prior to the filing of the bill actually paid to complainant all of such advances and also the entire amount the latter laid out for the eight and a half feet together with interest on the whole and now holds his receipt for the same. That the right of party wall acquired from Titus was obtained for defendant under the same arrangement that was made for getting the eight and a half feet and subject to the like trust, and that defendant has paid complainant the whole advance therefor and is in equity entitled to a conveyance covering the right.

The foregoing statements exhibit the case made by the bill and the response thereto by the answer. Each party verified his statement by his oath and gave to it whatever title to evidence that solemnity could bestow. The complainant sets up his equity as a right to have the defendant carry out by conveyance an alleged unwritten agreement between the parties and which as complainant avers he has fully performed on his part. The defendant denies making the alleged contract and contradicts the claim of performance. He also sets forth his own explanation of the transaction to which the litigation applies. Whether what is described in the bill as the contract to be enforced possesses the attributes of certainty which are requisite to justify any attempt by the court to execute it is a question which may be waived. As the case stands on the record no discussion of that point is necessary.

The question whether in fact the parties actually constructed as alleged, and in case they did so, then whether the complainant performed his part of it, depends on their testimony. Beyond that there is nothing which is much to the purpose. The mass of matters from other sources consists of surrounding incidents which are open to different constructions and various inferences and only adapted to explain and brace up a case already clearly marked out by other means. The first thing is therefore to extract from the scattered explanations of the parties their versions of the transaction. The complainant on going on the stand to support the allegations of his bill testified that the agreement was that he should buy the...