Crane v. Partland

• Decision Date: 20 January 1862
• Citation: 9 Mich. 493
• Court: Michigan Supreme Court
• Parties: Albert Crane v. Peter Partland

9 Mich. 493

Albert Crane v. Peter Partland

Supreme Court of Michigan

January 20, 1862

Heard October 31, 1861; November 1, 1861 [Syllabus Material]

On case made from Wayne circuit.

The plaintiff declared, for that defendant, on July 2, 1855, at Detroit, "by a certain agreement or contract, then and there made between the said plaintiff and defendant, among other things agreed, for himself, his heirs, executors and administrators and assigns--for and in consideration of the said plaintiff (among other things) agreeing, at the special instance and request of the said defendant, for himself, his heirs, executors and administrators, to sell to the said defendant all that piece or parcel of land, situated in Detroit, Michigan, and known and described as lot one in block twenty-three, Crane & Wesson's section of the Forsyth farm, north of the Grand River road, and upon full payment to him, the said plaintiff, of the sum of five hundred and ninety-five dollars, with interest, as therein set forth, and taxes, to execute to said defendant a good and sufficient warranty deed of said lot--to pay said plaintiff the sum of five hundred and ninety-five dollars, in the manner following, to wit: ten dollars on the delivery of said contract, and the balance in nineteen equal quarterly payments. The first quarterly payment to be made on the first day of October, A. D. 1855, with lawful interest from the date of said contract to be paid quarterly on the whole sum remaining unpaid in each year, at seven per cent, and to pay all taxes and assessments imposed on said premises from and after the first day of January, 1855, ordinary, extraordinary and for revenue purposes.

"And the said plaintiff avers, that at the special instance and request of said defendant, he, the said plaintiff, then and there undertook and faithfully promised said defendant to perform and fulfill the said agreement in all things on the said plaintiff's part to be performed and fulfilled, and he, the said defendant, undertook and faithfully promised the said plaintiff then and there to perform and fulfill the said agreement in all things on said defendant's part and behalf to be performed and fulfilled. And although the said plaintiff hath always, from the time of the making of said agreement, performed and fulfilled, and still is ready to perform and fulfill all things on his part and behalf in the said agreement to be performed and fulfilled, and did afterwards, to wit, on the 2d day of July, A.D. 1855, at Detroit, county aforesaid, sign and deliver said contract in duplicate to said defendant; yet said plaintiff in fact saith that said defendant," etc.

The written statement of facts agreed upon is as follows:

"The lot agreed to be sold by the contract hereto attached and marked 'D,' and which is the contract plaintiff claims upon, was owned by plaintiff at the time of the execution of said contract. That plaintiff was absent when defendant signed it, and plaintiff signed it a month afterwards. The signature 'Albert Crane by Wm. B Wesson' was placed to the contract declared on and marked 'D', at the time defendant signed it, by Wm. B Wesson, Crane's agent. That Wesson had no written authority so to sign. On Crane's return he erased the above, and signed his own name unknown to defendant. At the time of signing by Partland of the instrument marked 'D', it being the instrument declared on and offered by plaintiff, the instrument marked 'E' was executed and delivered to defendant as a duplicate. The amount of principal and interest due on the instrument, offered by plaintiff in evidence, and marked 'D,' is this day $ 785.69. The lot mentioned in instrument 'D' is of equal value now as at date of such instrument."

The contracts referred to as "D" and "E" were in the ordinary form of contracts for the sale of land. Printed forms had been used in drawing them, in which the names of Albert Crane and William B. Wesson were printed in as parties of the first part. In "D" Wesson's name was struck out, in "E" it was not. Both were signed by defendant. Crane's name did not appear in the signing of "E," but it was subscribed by Wesson in his own name.

The circuit judge found as follows:

1. Partland, the defendant, being in this action "the party sought to be charged," and he having signed the contract "D," on which plaintiff seeks to recover, and nothing more remaining to be done by him, he is legally liable.

2. To sustain this action plaintiff need not prove a tender of the deed to the defendant, and demand for payment before he commenced his suit.

3. The duplicate marked "E" is not an essential part of the instrument declared on by plaintiff and marked "D;" the defendant's liability is full and complete by the contract "D," which contains a full and complete assumpsit, and does not depend upon, nor is it limited by the duplicate "E."

4. Though Wesson had no proper authority to sign the contract "D" for Crane, the plaintiff, yet, under the point number one found above, such signing does not affect defendant's liability in this action.

5. Plaintiff's measure of damages in this action is the amount due under the instrument declared on, with interest on the whole sum unpaid up to the date of the judgment, and plaintiff is not bound to prove other damages to enable him to recover.

Judgment reversed.

H. M. & W. E. Cheever, for plaintiff, argued that it was sufficient to bind defendant that the contract was signed by him. The broad question of the mutuality of a contract does not arise here: 16 Wend. 460; 3 Greenl. 409; 13 Mass. 87; 2 Caines 117; 14 Johns. 485; 2 Nott and McCord, 207; 2 Bing. N. C., 735; 2 B. and P., 238; 6 East, 307; 3 Scott S. C., 238; Chit. on Cont., 70. The statute (Comp. L. § 3183) has not changed the rule: 14 Johns. 485. But at all events the payment by defendant of part of the purchase price constitutes a part performance of the agreement, so as to take the case out of the statute of frauds, and entitle the vendor to a performance by defendant.

C. E Eddie and S.D. Miller, for defendant, claimed that in such a contract as this, the duplicate instrument is an essential part; if it varies from the original, or rather if there is no true duplicate, the defendant is bound only by the instrument in his hands; and the character of the agreement is to be determined by that; and where no true duplicate exists, no contract is consummated. They further argued that, inasmuch as Wesson had no written authority from Crane to sign his name and attach his seal, the subsequent signing by Crane without the knowledge of defendant could not make good the contract; there being no mutuality in the inception of the...