Dayton v. Dakin's Estate
| Decision Date | 18 December 1894 |
| Parties | DAYTON v. DAKIN'S ESTATE. |
| Court | Michigan Supreme Court |
Error to circuit court, Ingham county; Rollin H. Person, Judge.
Action by George M. Dayton against the estate of John B. Dakin to recover for conversion of crop. From a judgment in favor of plaintiff, defendant brings error. Affirmed.
Smith, Lee & Day, for appellant.
M. V. & R. A. Montgomery, for appellee.
In August, 1888, the claimant owned a farm, which he had previously bought, subject to a mortgage held by one Dakin since deceased, and which was in August, 1888, in process of foreclosure in chancery, the sale being advertised for September 15th. At this time, i. e. August, 1888 the claimant owned an undivided half of the crops upon the premises; the other half being owned by Palmer, who put them in upon shares. The land was bought by Dakin upon the sale and he thereafter sold Dayton's share of the crop, including some corn which is claimed to have been cut and shocked before the sale. After Dakin's death the claimant filed a claim against the estate, which was disallowed; and an appeal was taken to the circuit court, where he recovered a verdict for $326.70, from which the administrators appealed. The claim which appears to have been relied upon in the circuit court was that the portion of the crop that was severed before September 15th belonged to the claimant, and, further, that an agreement was made, under which Dakin was allowed to enter and take possession for certain purposes on September 1st, in consideration of a promise to allow the complainant to take his share of the growing crops.
The first question to be noticed arises over an amendment to the claim permitted by the circuit judge. The return of the commissioners showed the names of claimants, the amount claimed, and the amounts allowed. Opposite claimant's name, under the word "Claimed," was placed the sum of $432.56, followed in the column for "Amounts Disallowed" by the same sum. The printed record (and presumably the original) contains an exemplification of the record of two claims, one of which is for $432.56, over the certificate of the probate court. They have no place in the record, unless they are parts of the proceeding, although there is nothing upon them to show that they were filed separately in the circuit court; but they appear under the same certificate of the probate judge, as a part of the exemplification, and we think that they should be so considered.
It is further contended that the amendment enlarged the claim as heard by the commissioners. If it did, the amendment is improper, under repeated decisions, of which the case of Patrick v. Howard, 47 Mich. 40, 10 N.W. 71, cited by counsel, only need be mentioned. We may profitably eliminate one of the claims mentioned, as the commissioners appear not to have passed upon it. The other was as follows:
The claim, as amended, was as follows:
If these claims are to be measured by dollars and cents only, it must be conceded that the amendment enlarged the amount of the original claim. The 900 bushels of corn was increased to 1,100, and its value from $225 to $250. To this also was added the sum of $160.50 for interest from the date of the conversion. The claim was stated in various ways, in addition, viz.: A claim was made for the money received by Dakin upon a sale of claimant's half of the property, and for interest thereon. He charged for rental of the farm from September 1st to September 15th, the crops alleged to have been promised to claimant, and interest. He made a claim for the rental value of the farm for a year, from September 1, 1888, to September 1, 1889, without interest. Our attention is not called to anything in the evidence or charge tending to show that the last three forms of stating claimant's demand were considered by the jury, or cut any figure upon the trial. They may therefore be disregarded, as, at most, they were error without injury.
Turning our attention to the first amended claim, we may pass the interest question with the remark that the claimant would have been entitled to interest upon his claim, if allowed, though it had not been specifically mentioned in the claim, upon the principle that interest may be allowed on money illegally withheld, or property converted, without proof of special damage. Edwards v. Sanborn, 6 Mich. 348; McCreery v. Green, 38 Mich. 172; Davis v. Strobridge, 44 Mich. 157, 6 N.W. 205; McGuire v. Galligan, 53 Mich. 453, 19 N.W. 142; Ripley v. Davis,
15 Mich. 75; Northrup v. McGill, 27 Mich. 234; Burk v. Webb, 32 Mich. 173; Winchester v. Craig, 33 Mich. 205; Allen v. Kinyon, 41 Mich. 282, 1 N.W. 863; Symes v. Oliver, 13 Mich. 9; Chapman v. Dease, 39 Mich. 333. It is the common practice, in actions for breach of contract, to allow interest without a special averment. Whether it be said that Dakin was liable for an unlawful conversion or for breach of contract, the same is true.
This brings us to the corn. In the original claim the amount was mentioned at 900 bushels; in the amended account, at 1,100 bushels. In the former, however, it was alleged to be one-half of the product of 47 acres of land. Doubtless this would have justified an allowance of one-half of the corn grown upon the 47 acres, which is all that was claimed upon the trial, as the evidence and charge disclose. It can therefore be truly said that in this respect identical claims were tried on both occasions, and that all that were tried upon the amended claim might have been allowed by the commissioners under the claim as first filed.
The next question of importance is the proof of the alleged contract. Dakin was dead, and the claimant under the statutory disability. Counsel attempted to prove the contract by showing negotiations between counsel for the respective parties by letter, and possibly otherwise, and by the conduct of the parties. These...
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