Clemens v. Conrad

• Decision Date: 12 October 1869
• Citation: 19 Mich. 170
• Court: Michigan Supreme Court
• Parties: Milo Clemens et al. v. Louis Conrad

19 Mich. 170

Milo Clemens et al. v. Louis Conrad

Supreme Court of Michigan

October 12, 1869

Heard July 10, 1869 [Syllabus Material]

Error to Wayne Circuit.

This was an action of assumpsit brought upon a special contract entered into between Louis Conrad, the plaintiff below, and Milo, William A., and Phineas H. Clemens, on the 31st of August, 1866, by which Conrad agreed to sell to the Clemens Brothers a tract of land in the State of Ohio, on which was a stone quarry that Conrad was then working, for the sum of six thousand dollars; payable five hundred dollars when the said Clemens took possession, and the remainder in eight equal annual installments with interest, and "to convey said premises to said Clemens by a good warranty deed within ten days from" the date of said contract; "said deed to be executed and signed by George Michael and wife, and Louis Conrad and wife." By the same contract it was agreed on the part of the vendees, the Clemens Brothers, that "they are to give to the said Conrad, permission to quarry on the said premises in the quarry in which he is now quarrying until December 1st next, and to use the dock on the N. E. corner of said premises, to ship his stone from, until said December 1st next. Said Conrad is to commit no waste during said time upon said premises, and to so quarry as to leave upon said dock on the said 1st December next, not more than two vessel loads of stone, and the two loads of stone he is to remove as early as convenient during the next spring after which the entire use and ownership of the dock is to vest in the said Milo Clemens, William A. Clemens and Phineas H. Clemens."

The breach of this contract on which the plaintiff counted specially, was, that in pursuance of the agreement, he proceeded and quarried stone until the said first day of December, at which time he had upon, or near the dock, about 1,800 cubic feet of stone so quarried upon said premises, the same not being more than two vessel loads, as well as about 3,000 cubic feet quarried from, and lying in or near the quarry, of the value of $ 4,000; that on the first of December, the defendants entered into possession of the premises, and refused to deliver the possession of the stone so lying on the premises to the plaintiff, but sold or otherwise disposed of the same, and refused to account for or pay over to the plaintiff the value of the said stone.

The defendants pleaded the general issue; gave notice of set-off, and that they would recoup their damages occasioned by the plaintiff's breach of the contract, on which he had declared.

On the trial a verdict and judgment were rendered for the plaintiff; and the case is brought into this Court by the defendants below, to review the decisions of the Circuit Judge as to his construction of the contract; and upon the following questions as to the admissibility of evidence.

Louis Conrad, the plaintiff, was examined as a witness on his own behalf, and having testified to his execution of the contract of August 31st, he was asked by his --"Was a deed and mortgage afterward given between the parties to this suit, relative to this quarry?" The question was objected to, but allowed by the Circuit Judge.

He was also asked on cross-examination:--"How much stone did you ship and use from August 31st to December 1st?" and--"Why did the Clemens Brothers insist that these two vessel loads of stone which you had a right to ship, should be piled on the dock before the first day of December?" Both these questions were objected to by the plaintiff's counsel, and the objections were sustained.

The contract declared on was written on two pieces of paper pasted together, and having on it but one revenue stamp (of five cents), its introduction in evidence was objected to as insufficiently stamped. The objection was overruled and the paper admitted.

P. H. Clemens, one of the defendants, was examined as a witness on their behalf, and was asked by defendants' "What did Conrad, if anything, state to you before the making of the contract, as to who owned the undivided half claimed by him?"--"In what capacity did Conrad claim to act in the transfer of this property?" and "State why Conrad and wife were to sign the deed?" These questions were objected to by the counsel for the plaintiff, and the objections were sustained.

A witness, called by the defendants, was asked, on cross-examination, "were you indicted, in 1865, in Sandusky, for smuggling?" This question was objected to, but allowed by the Circuit Judge.

The view taken by the Court of that portion of the Judge's charge which was excepted to, renders it unnecessary to state it.

Judgment affirmed with costs.

COUNSEL:

F. A. Baker, for plaintiffs in error.

H. M. & W. E. Cheever, for defendant in error.

Cooley, Ch. J. Campbell and Christiancy, JJ., concurred. Graves, J. dissenting.

OPINION

Cooley, Ch. J.

The objection to the question put to Louis Conrad, whether a deed and mortgage were given between the parties, has no force. The question did not call for the contents of the instruments, and did not elicit secondary evidence.

The questions put to the same witness, as to the quantity of stone shipped from August 31st to December 1st, and as to the reason of the Clemens Brothers insisting that the two vessel loads of stone which Conrad had a right to ship should be piled on the dock on the first of December, were clearly irrelevant and properly overruled.

Nor do we perceive any relevancy to the questions put for the purpose of showing that another party beside Conrad was interested in the land described in the deed and contract. Conrad, it appears, contracted to convey the land to the Clemens Brothers, but was to have the right to take stone from the quarry upon it up to a certain time. He has performed his part of the contract, and this suit grows out of the conversion by the Clemens Brothers of certain stone which he claims became his by the contract.

It is immaterial from what source or from how many sources the title was derived which has been conveyed. The right to the stone does not come from any reservation in the deed, but from a contract which gives it to Conrad alone; and even if Conrad were equitably bound to account to some other person for a proportion of the stone, that fact would be immaterial to the present suit. The defendants below asserted no equities against any third party whom they claimed to have an interest, and we discover no analogy between this case and those in which the right to charge an unnamed principal on a contract made by his agent has been upheld.

The question to P. H. Clemens, "why Conrad and wife were to sign the deed?" was entirely immaterial, and objectionable on other grounds.

The right to inquire of a witness, on cross-examination, whether he has not been indicted and convicted of a criminal offense, we regard as settled in this State by the case of Wilbur v. Flood, 16 Mich. 40. It is true that in that case the question was, whether the witness had been confined in State prison; not whether he had been convicted; but confinement in State prison presupposes a conviction by authority of law, and to justify the one inquiry and not the other would only be to uphold a technical rule, and at the same time point out an easy mode of evading it without in the least obviating the reasons on which it rests. We think the reasons for requiring record evidence of conviction have very little application to a case where the party convicted is himself upon the stand and is questioned concerning it, with a view to sifting his character upon cross-examination. The danger that he will falsely testify to a conviction which never took place, or that he may be mistaken about it, is so slight, that it may almost be looked upon as purely imaginary, while the danger that worthless characters will unexpectedly be placed upon the stand, with no opportunity for the opposite party to produce the record evidence of their infamy, is always palpable and imminent. We prefer the early English rule on this subject: Priddle's case, Leach C. L. 382; King v. Edwards, 4 T. R. 440; and for the reasons which were stated in Wilbur v. Flood.

Several other assignments of error depend for their force upon the proper construction of the contract under which Conrad was to have possession of the stone quarry until December 1, 1866, with certain right to remove stone afterwards. The stipulation on that subject was as follows: The Clemens Brothers "are to give to the said Conrad permission to quarry on the said premises in the quarry in which he is now quarrying until December 1, next, and to use the dock on the northeast corner of said premises to ship his stone from until said December 1 next. Said Conrad is to commit no waste during said time upon said premises, and to so quarry as to leave upon said dock on the said 1st December next not more than two vessel loads of stone, and the two loads of stone he is to remove as early as convenient during the next spring, after which the entire use and ownership of the dock is to vest in the said" Clemens Brothers.

As we understand this contract, whatever stone was quarried by Conrad previous to December 1, 1866, became his property. He agreed, however, that he would not leave upon the dock on that day more than two loads of stone, and those two loads the other parties agreed he might have until the next spring to remove. We do not discover in this contract any thing from which we can infer an understanding on the part of either party, that the penalty for a failure on the part of Conrad to remove his stone within the time agreed should be a forfeiture of his right thereto. The law certainly would not imply such an understanding where it was not plainly...