Cook v. Bell

• Decision Date: 12 May 1869
• Citation: 18 Mich. 387
• Court: Michigan Supreme Court
• Parties: Addison P. Cook v. Mary Bell

18 Mich. 387

Addison P. Cook v. Mary Bell

Supreme Court of Michigan

May 12, 1869

Heard May 8, 1869 [Syllabus Material] [Syllabus Material]

Error to Jackson circuit.

This was an action brought to recover damages for a failure to perform the conditions of a certain contract for the sale of real estate.

Judgment was rendered in favor of plaintiff below.

The facts are stated in the opinion.

Judgment reversed, with costs, and a new trial granted.

G. T. Gridley and Jno. D. Conely, for plaintiff in error:

1. The court erred in admitting parol evidence, tending to show an extension of the time mentioned in the written contract for the payment of the money: Comp. Laws, §§ 3177, 3179, and cases hereinafter cited.

2. The deposition of Harriet Bell should have been excluded: Comp. Laws, § 4250, 4th subdivision. "The return of the commissioner shall be indorsed on the commission."

In this case the return was indorsed on one of the sheets of the depositions.

3. The court should have charged that if the jury should find that there was a parol agreement for an extension of the written contract, the plaintiff cannot recover upon such parol agreement, because the same is not in writing.

a. A contract under seal cannot be varied by parol: Littler v. Holland, 3 Term 590; Blood v. Goodrich, 9 Wend. 68, 73; Delacroix v. Buckley, 13 Id. 71, 78; Allen v. Jaquish, 21 Id. 628; Eddy v. Graves, 23 Id. 82; Sinard v. Patterson, 3 Blackf. 353, 356; Woodruff v. Dobbins, 7 Id. 582; Chapman v. McGrew, 20 Ill. 101, 104; 1 Greenl. Ev., § 302.

b. A contract required to be in writing by statute of frauds cannot be proved partly by the writing and partly by parol: Goss v. Lord Nugent, 5 B. and A., pp. 58, 65; 2 Nev. and Man., 38, 34; Harvey v. Grabham, 5 A. and E., 61, 73; Stead v. Dawber, 10 Id. 57; Marshall v. Lynn, 6 M. and W., 109; Stowell v. Robinson, 32 E. C. L., 386; Hasbrouck v. Tappen, 15 Johns. 200; Blood v. Goodrich, 9 Wend. 68, 73; Espy v. Anderson, 14 Penn. State, 308, 311; Dana v. Hancock, 30 Verm. 616, 618; Emerson v. Slater, 22 How. (U.S.), 28, 41, 42; Hansborough v. Peck, Am. Law Register for December, 1867, p. 79; Eddy v. Graves, 23 Wend. 82; Sugden on Vendors and Purchasers, pp. 174 to 180; 2 Phillips Ev., 4th Am., from 10th English edition, p. 680, and note, 497.

c. Extension of time by parol is void: Littler v. Holland, 3 Term 590; Stead v. Dawber, 10 A. and E., 57; Marshall v. Lynn, 6 M. and W., 109; Stowell v. Robinson, 32 E. C. L., 928; Hasbrouck v. Tappen, 15 Johns. 200; Blood v. Goodrich, 9 Wend. 68, 73.

d. So far as any support has been derived from the case of Cuff v. Penn., 1 M. and S., 21, for the theory that there can be a valid parol extension of a contract required by the statute of frauds to be in writing, the case is regarded as overruled in England: Goss v. Lord Nugent, 5 B. and A., pp. 58, 65; 2 Nev. and Man., 33, 34; Harvey v. Grabham, 5 A. and E., 61, 73; Stead v. Dawber, 10 Id. 57; Marshall v. Lynn, 6 M. and W., 109; Emmett v. Dewhirst, 3 McN. and G., 587.

e. A substituted performance may often be shown. But its application is limited to cases where the party intending to perform the contract on his part was actually ready and offered to perform, and the other party evaded the performance or refused the money or other things to be tendered, with a declaration, or acts amounting to a declaration, that he did not intend to perform the contract on his part; or else where subsequently to a breach of covenant, the covenantee agreed to accept another thing in satisfaction of his damages, which was an answer for the non-performance of the thing stipulated for. An agreement to accept another thing could not be binding if the new agreement was such as by the statute of frauds required a writing: Borden v. Borden, 5 Mass. 67, 69, 74; Frazier v. Cushman, 12 Id. 277, 279; Seymour v. Bennet, 14 Id. 266; Littler v. Holland, 3 Term 590, and note; Harvey v. Grabham, 5 A. and E., 61, 73; Stead v. Dawber, 10 Id. 57; Marshall v. Lynn, 6 Mees. and Welsby, 109; Stowell v. Robinson, 32 E. C. L., 386; Thompson v. Brown, 7 Taunt. 656; Street v. Dow, Har. Ch., 427; Delacroix v. Buckley, 13 Wend. 71; 1 Greenl. Ev., § 304; 2 Id., §§ 600, 603; Woodruff v. Dobbins, 7 Blackf. 582; Fleming v. Gilbert, 3 Johns. 530.

f. A promise to extend the time on a contract makes a new agreement, and should be declared upon, or availed of, by way of defense as such. It is valid if in writing and signed by the party. But if not in writing, and signed by the party to be charged, our statute declares it "void." It has no effect either as a "parol extension," or as a "substituted performance," or as a "parol agreement for a substituted performance." The language of our statute is stronger than that of the English, for there it is "no action shall be maintained," but here, the "contract shall be void:" Robinson v. Godfrey, 2 Mich. 408, 409, 410; Morgan v. Butterfield, 3 Id. 615 to 624; Penn. Mining Co. v. Brady, 14 Id. 260, 264; Same, 16 Id. 332, 338; Comp. Laws, § 3179; Langworthy v. Smith, 2 Wend. 587; Freeman v. Adams, 9 Johns. 115; Phillips v. Rose, 8 Johns. 393; Good v. Cheesman, 2 B. and Ad., 328; Bailey v. Johnson, 9 Cow. 115; Stead v. Dawber, 10 A. and E., 57; Marshall v. Lynn, 6 M. and W., 109; Stowell v. Robinson, 32 E. C. L., 386.

4. The court erred in refusing to charge that the assignment of this contract before breach is not an assignment of a chose in action within the meaning of act No. 75, Laws 1843: 2 Black. Com., 397, 398; Gillett v. Fairchild, 4 Denio 82; Laws of 1863, p. 102; Comp. Laws, § 4159; Bishop Crim. Law, § 428.

This contract is for the conveyance of land. At the time of the assignment the only right transferred was a right to have the land. The claim for damages did not arise till afterwards: Buckmaster v. Eddy, Breese, 381.

Johnson & Higby and Bennett & Bancker, for defendant in error:

1. If a party to a special contract partially perform on his part, and is prevented by the other from performing the balance, he may abandon the contract and sue and recover for what he has done or paid: Hoagland et al. v. Moore, 2 Blackf. 167; Alcorn v. Harmenson, 2 Id. 235; Towers v. Barrett, 1 T. R., 133; Giles et al. v. Edwards, 7 Id. 181; 2 Stark. Ev., 867; Ricks v. Yates, Adm., 5 Ind. 115; Newcastle & Rich. R. R. Co. v. Brumback, 5 Id. 544; 2 Pars. on Cont., 35; Webster v. Enfield, 5 Gillm. 298; Borden v. Borden, 5 Mass. 69.

Money paid on contract rescinded may be recovered: Robb v. Montgomery, 20 Johns. 15; Hudson v. Swift, 20 Id. 24; Raymond et al. v. Remard, 12 Id. 274; Eldridge v. Rowe, 2 Gillm. 92.

Where one has received money for another which in equity he ought not to retain, the law implies a promise to return it: Trumbull v. Campbell, 3 Gillm. 502; Beardslee v. Horton, 3 Mich. 560.

2. The contract declared on in this case is a chose in action, and the assignee has all the rights of the assignor: 1 Burr. Law Dict., 213; 2 Kent Com., 351, and notes; 2 Bl. Com., 396-7.

And this suit was properly brought in the name of the assignee: Sess. Laws 1863, p. 102; Mann v. Herk. Co. Mut. Ins. Co., 4 Hill 187.

3. The time of performance of a contract in writing may be extended by a subsequent parol agreement, even though said contract be within the statute of frauds.

And no new consideration is necessary; or, if any, the original contract was sufficient. Or, as in this case, the agreement on the part of Bell to pay interest, or extra interest, was sufficient: Wadsworth v. Thompson, 3 Gilm. 423; Keating v. Price, 1 Johns. Cases, 22; Baker v. Whiteside, Breese (Ill.), 174; Fleming v. Gilbert, 3 Johns. 527; Munro v. Perkins, 9 Pick. 298; 2 Pars. Cont., 574; 2 Abb. Dig., 662, No. 770; 2 Id. 99, No. 886; Langworthy v. Smith, 2 Wend. 590; Borden v. Borden, 5 Mass. 69, 74; Cummings et al. v. Arnold et al., 3 Met. 486; Ten Eyck v. Waterbury, 7 Cow. 50; Erwin v. Saunders, 1 Id. 250; 1 Greenl. Ev., § 304, note 4; Climer v. Hovey, 15 Mich. 24; Woollem v. Hearn, 2 Lead. Cas. in Eq., 651; Stearns v. Hall, 9 Cush. 31, 34; Cuff v. Penn, 1 M. and S., 21; Robinson v. Batcholder, 4 N. H., 40; Buel v. Miller, 4 Id. 196.

4. There was no error in allowing the deposition of Harriet Bell to be read in evidence. The return of the commissioner was sufficient: Pendell v. Coon, 20 N. Y., 134; Hurd v. Pendrigh, 4 Hill 502.

OPINION

Campbell J.:

Cook, the plaintiff in error, contracted in writing to sell certain lands to Henry C. Bell, a son of the defendant in error, for a sum of money, payable at fixed times by installments, allowing sixty days' grace, and providing for the avoidance of the contract, and the right to retain payments made, in case of failure to pay as agreed. The money to make the payments actually made was advanced to Henry C. Bell by defendant in error, and he assigned the contract to her, and Cook had notice of the assignment. Mary Bell failed to make her payments as provided for, and there was evidence from which the jury were satisfied that a parol agreement was subsequently make to extend the time and make some new terms as to the mode of payment. Before the time as thus extended expired, Cook, upon the application of Henry C. Bell, conveyed the land to Marietta Bell, his wife; and Mary Bell, after causing an application and offer to pay to be made to Cook, brought this action. The jury, under the charge, found for the plaintiff below, and Cook brings error upon allegations of misrulings at the trial.

Among other things, a deposition taken under commission was introduced, and the return, instead of being indorsed upon the commission itself, was written upon one of the sheets appended by the commissioner.

Objection was made to its introduction, as not in accordance with the statute. If proper notice...