Curran v. Rogers

• Decision Date: 25 October 1876
• Citation: 35 Mich. 221
• Court: Michigan Supreme Court
• Parties: James Curran v. Samuel Rogers

35 Mich. 221

James Curran v. Samuel Rogers

Supreme Court of Michigan

October 25, 1876

Heard October 24, 1876 [Syllabus Material]

Error to Van Buren Circuit.

Judgment affirmed, with costs.

B. F Heckert and Richards & Mills, for plaintiff in error, argued that the contract declared on, being executed by Tripp in the firm name and without authority in writing fro Curran, was void under the statute of frauds and not binding either on the firm or on Curran: Comp. L. 1871, § 4694; Browne on Frauds, §§ 263, 266, 271; 5 Hill 107; 10 Paige 86; 11 Ib. 410; and that the statute embraces contracts for the purchase as well as for the sale of lands, and applies to the vendee as well as the vendor; that there being no ratification by Curran in writing of Tripp's acts, a part performance of the contract would not take the case out of the statute: 1 Pick. 331; 2 Ib. 134; 24 Mich. 329; that the tender of a conveyance within a reasonable time was necessary, and Curran was entitled to a good, clear, unencumbered, marketable title: 3 Mich. 166; 21 Mich. 361; 51 Penn. St., 269; and that the vendor could not maintain a suit until such a title had been tendered; the covenants of the parties being mutual and dependent, neither could put the other in default except by tendering performance on his own part, unless such tender was waived: 2 Metc. 502; 41 Cal. 422; 2 Ib. 661; 1 Kern. 453; 2 Pick. 458; Chitty Pl., § 297; 44 N. Y., 653; 62 Ib. 157; and that the vendee is not bound to accept a title apparently encumbered: Allen v. Atkinson, 21 Mich. 360; that the proper measure of damages is the difference between the contract price and the value of the land at the time of the alleged breach: 3 Pars. on Cont., 231; 9 M. & W., 474; 12 Am. 76; Sedg. on Dam., 200; 18 Vt. 22; 6 Gray 25.

Severens, Boudeman & Turner, for defendant in error, argued that the statute of frauds (Comp. L. 1871, § 4694) does not require the purchaser to sign the contract, and that he is liable on the contract signed by the vendor, though his own assent is oral: 14 Mich. 238; 26 Ib. 420; 43 Cal. 458; 47 Ib. 213; 56 Penn. St., 424; 4 Edw. Ch., 102; 11 Paige 431; 1 Seld. 229; 16 Wend. 460; that the signing by Tripp, in the presence and at the request of Curran, was in law a signing by the latter: 5 Cush. 483; 4 Bibb. 295; 2 Greenl. Ev., § 295; 3 Nev. & Man., 576; that the failure to file an affidavit denying the execution of the contract operates as an admission, not only of its execution, but also of the capacity in which the defendants contracted: Circuit Court Rule 79; 5 Mich. 26; 7 Mich. 468; that the pendency of the suit in the United States court, between third parties, was immaterial; that the question being, not whether a claim was made to the land, but whether a valid claim really existed, the defendants could not set up an apprehended difficulty as a defense: 10 Ohio 142; 22 Ark. 435; that the existence of mortgages, not discharged of record, but which are shown to have been paid, does not render the title unmarketable, or amount to a breach of the contract to convey free of encumbrances: 14 Penn. St., 308; 26 Ib. 51; 12 N. Y., 394; 16 Wend. 30; 21 Mich. 361; that the objection, not being made when the deed was tendered, was waived, and the defendants estopped from raising it at the trial: 1 Wall. 274; 10 Paige 386; 6 Ib. 410; 16 Wend. 30; 15 Penn. St., 429; 9 Cush. 167; 1 Mood. & Walk., 128; Chitty on Cont., 337; that the tender of the conveyance to Tripp, one of the vendees, was sufficient: 1 Hill on Vendors, 38; 33 Me. 67; that the measure of damages in such a case as this is the contract price with interest: 33 Me. 67; 4 Greenl. 258; 15 Me. 296; 4 Pick. 195; 56 Penn. St., 424; 3 Salk. 108 1 Vent. 148; Chitty on Cont., 339, note g; 2 Hill on Vendors, 306; Sugd. on Vendors, 374; 17 Barb. 260; Sedgw. on Dam., 198, note s; 11 Ia. 161; 2 Cush. 358; 8 Ib. 225; 1 Pet. 464; 3 Rich. 216; 4 T. R., 761; 8 Ib. 466; 3 East, 410; 5 Cow. 506; 52 Penn. St., 363; 21 Wend, 457; 4 Jones 175; 6 Ib. 554; 47 Cal. 213; that the vendee cannot resist the payment of the contract price when he has taken and holds possession of the land, unless he has a right to, and does, rescind the contract and surrender possession to the vendor: 15 Mo. 387; 4 Tex. 430; 23 Barb. 408; 6 Cow. 445; 2 Comst. 408; 12 Ves. 27.

OPINION

Campbell, J.:

Rogers sued and recovered judgment against Curran & Tripp, for the non-fulfillment of a contract, whereby they were claimed to have agreed to purchase a parcel of timber land. The contract in writing which was sued on provided in the first place for the sale of the timber, separately, at the price of two thousand dollars, and for the refusal of the land for five months at fifteen hundred dollars.

The contract was signed in the name of the firm of Curran & Tripp, who were partners in the lumbering business. Tripp signed it, and Curran was present, bargaining and assenting. Within the five months Rogers was notified in writing of the conclusion to purchase the land. This notice was given in the firm name, signed by Tripp, and was that "Curran and I have concluded to buy that land as stated in contract. We were to decide before the 20th of April, 1873." Curran & Tripp took possession and exercised and asserted ownership beyond what related to the timber first purchased. Curran now seeks to avoid the contract as invalid.

The objection that Tripp was not authorized to act for both is not open on this record. The general issue was pleaded without any affidavit, and thus admitted the execution of the papers, which were set out verbatim and alleged to have been jointly executed. The undisputed evidence showed Curran to have been as active as Tripp in performing acts of ownership, as well as in making the bargain, and the effect of the rule which requires an affidavit to open the question of execution is evidently just in this case.

The written contract originally made was in itself a complete bargain, subject only to an act of election. It does not declare in what way the election shall be signified, and whether by writing or by assuming possession can make no difference. The vendor had bound himself by writing, so as to conform to the statute. Whether the written election was or was not clear in describing the property or contract the assumption of possession and performance of acts of ownership distinct from the use of the timber were unequivocal, and sufficient to operate as an irrevocable election. But we do not intimate that for such a purpose the writing was not adequate.

The vendor tendered in season a proper warranty deed. It was insisted on the trial that the title was not such a clear and marketable one as the law requires.

So far as mortgages are concerned, we think that evidence of the payment of such as were outstanding was sufficient. Mortgagees in this state have no right of possession,...