Detroit, Lansing & Lake Michigan Railroad Company v. Starnes

• Decision Date: 16 April 1878
• Citation: 38 Mich. 698
• Court: Michigan Supreme Court
• Parties: Detroit, Lansing & Lake Michigan Railroad Company v. William A. Starnes

38 Mich. 698

Detroit, Lansing & Lake Michigan Railroad Company v. William A. Starnes

Supreme Court of Michigan

April 16, 1878

Submitted April 12, 1878

Error to Ionia.

Assumpsit. Plaintiff brings error.

Judgment reversed with costs and a new trial ordered.

Mitchel & Pratt for plaintiff in error. Parol evidence is sometimes admissible to explain a written agreement, 1 Greenl. Ev., § 2868; Bradley v. W. A. & G. S. P Co., 13 Pet. 89; Norris v. Showerman, 2 Doug. (Mich.), 16; Cahill v. Kalamazoo Ins. Co., id., 124; Ives v. Kimball, 1 Mich. 308; Facey v. Otis, 11 Mich. 213; Hubbard v. Miller, 27 Mich. 15; Garton v Union City Nat. Bank, 34 Mich. 279; 2 Phil. Ev. (Cow. &amp H. notes), 598-606; Knight v. New England Worsted Co., 2 Cush. 271; Phelps v. Bostwick, 22 Barb. 314; Spencer v. Babcock, id., 326; Emery v. Webster, 42 Me. 204; Farmers etc. v. Com'l Bank, 15 Wis. 428; Miller v. Travers, 8 Bing. 244; Tower v. Det., Lans. & L. Mich. R. R., 34 Mich. 328.

Wm. O. Webster and A. F. Bell for defendant in error. Parol testimony cannot be admitted to explain, modify, enlarge or contradict writings, Mott v. Richtmyer, 57 N. Y., 58; McCormick v. Huse, 78 Ill. 363; 1 Spence Eq. Jur., 556; the intention of the instrument must be gathered from the words, Adair v. Adair, 5 Mich. 210; Jones v. Phelps, id., 222; Martin v. Hamlin, 18 Mich. 353; unless they are equivocal, N. A. F. Ins. Co. v. Throop, 22 Mich. 150.

OPINION

Marston, J.

An action was brought to recover upon the following instrument:

"James F. Joy having proposed to construct a railroad from Ionia to Stanton in consideration of the right of way and three thousand dollars per mile of local subscription, to be secured by endorsed paper payable within one year from the laying down of the track, we, the undersigned, hereby agree in consideration thereof to give our note to said Ionia & Stanton Railroad Company, endorsed by good endorser or endorsers, payable as aforesaid, for the amount set opposite our respective names hereto subscribed.

[Signed] W. A. STARNES, $ 2000." (And by 72 others.)

Ionia, June 14, 1872.

Plaintiff among other things offered to prove what Mr. Joy's proposition was in reference to building said road, which proposition had been made before the execution of said instrument. Plaintiff also offered to show that owing to the high lands adjoining the city of Ionia on the north, and the great expense of constructing a railroad through and over the same, it was not contemplated by the parties at the time this paper was signed that the road would be constructed to the corporate limits of said city, but that the line of another railroad which had previously been constructed and was then being operated should be used, for some three or four miles and then branch off to Stanton.

This evidence was finally rejected by the court and a verdict and judgment was rendered for the defendant.

We are of opinion that this evidence should have been admitted. The instrument sued upon was dated June 14th, 1872, and at that time no company had been organized to build this road. If there had been the articles of association might have definitely fixed the line of the road and concluded the parties. In the absence of such the defendant must have signed this instrument in view of the propositions made in reference to the construction of this road. This comes clearly within the decision in Phelps v. Whitaker, 37 Mich. 72, and Detroit v. Robinson, ante, p. 108.

There is still another ground upon which the evidence would have been admissible. The instrument recited the proposal to construct a railroad from Ionia to Stanton, and the agreement was to give "our notes to said Ionia & Stanton Railroad Company." No such company being in existence at that time the promise necessarily was to give the notes to said company when thereafter organized, and there were no restrictions which could in any way prevent the company from adopting just such a line of road as its officers and managers should deem proper,...