Dikeman v. Arnold

• Decision Date: 19 October 1888
• Citation: 40 N.W. 42,71 Mich. 656
• Court: Michigan Supreme Court
• Parties: DIKEMAN ET AL. v. ARNOLD.

40 N.W. 42

71 Mich. 656

DIKEMAN ET AL. v. ARNOLD.

Supreme Court of Michigan

October 19, 1888

Error to circuit court, St. Joseph county.

Action by Judson J. Dikeman and Orville Dougherty against Otis Arnold, for the value of land which plaintiffs alleged defendant agreed to convey to them. There was a judgment for plaintiffs, and defendant brought error.

CHAMPLIN, J.

On the 16th day of June, 1887, the plaintiffs were the owners of a farm of 210 acres in Sherwood, Branch county, upon which Richard Dougherty, the father of Orville and the father-in-law of Dikeman, held a mortgage of a little over $7,000. Jasper Shaw and Elsie, his wife, owned two farms,-one of 124 1/2 acres, near Three Rivers, Mich and the other in Indiana. The defendant was the owner of a farm adjoining the Shaw farm near Three Rivers, and was also the owner of several lots in the village of Three Rivers. Upon this farm were good houses and barns, and he had resided thereon with his wife and family several years. The plaintiff Dikeman resided in Three Rivers, where he carried on a bakery and ice-cream parlors. Orville Dougherty, with his family, resided upon the farm in Branch county, and the Shaws resided upon their farm near Three Rivers. The plaintiffs were desirous of making some disposition of their farm in Branch county, whereby they could reduce their indebtedness; and had talked of trading farms with Shaw, who informed them that defendant had been desirous of purchasing about 40 acres from him. They thereupon called upon defendant to learn if he would purchase a part of the Shaw farm in case they should trade with Shaw. They found that he was not anxious to purchase, but had talked with Shaw about it some time previously. He suggested how ever, that he might take the whole of the Shaw farm if he could trade his village lots and some other land for it. They returned the next day, when a more definite proposition was made. This was on June 11th, and was embodied in the following writing:

"THREE RIVERS, MICH., June 11, 1887.

"Agreement between Otis Arnold and son, party of the first part, and Dougherty and Dikeman, party of the second part.

"We the party of the first, part, agree to sell to the party of the second part 25 acres for $6,000, which will include all buildings and Arnold's house, and all buildings of whatsoever nature, except one barn, which must be moved to the Shaw farm by the party of the second part, where the party of the first part designates. The party of the first part also agrees to sell all the balance of land east of the hedge fence for $100 per acre. The party of the first part also agrees to buy of the party of the second part the Shaw farm at $13,000, in exchange for the above-described property. The party of the second part agrees to take said property of Arnold in exchange for the "Shaw farm" by June 16, 1887.

[Signed]

OTIS ARNOLD AND SON.

"DOUGHERTY AND DIKEMAN."

It was claimed on the part of the plaintiffs that Mrs. Arnold, wife of Otis Arnold, was cognizant of the trade which was being talked up with her husband, and assented thereto. On the other hand, defendant claims that Mrs. Arnold objected to the trade, and distinctly told plaintiffs that she would not assent thereto. Testimony was introduced in support of the claims made. On the evening of the 15th of June, plaintiffs informed defendant that they were ready to carry out the trade the next day. The defendant claims that Mrs. Arnold again told them that she was opposed to the trade, and would not consent to it; and they then said to her that, if she did not want the trade to go any further, it should go no further. This is disputed by plaintiffs. On the morning of the 16th, Dikeman again went to Arnold's, and told him that they were ready to draw the papers. The plaintiffs, defendant, Shaw and his wife, and Richard Dougherty, met at the law-office of Newton H. Barnard, of the law firm of Howell, Carr & Barnard, to have the papers drawn. There is considerable conflict in the testimony as to what took place on this occasion. All agree, however, that Mr. Barnard drew up the following papers, viz.: A deed from plaintiffs and their wives to Jasper Shaw of an undivided half of their farm in Branch county; a like deed of the other undivided half to Mrs. Shaw; a deed from Mrs. Shaw to plaintiffs of the Shaw farm; a deed from Mr. Shaw to Dikeman of the land in Indiana; a deed from Mr. and Mrs. Dikeman and Mr. and Mrs. Dougherty to Otis Arnold of the Shaw farm; a discharge of the mortgage held by Richard Dougherty on the Branch county farm; a mortgage from Otis Arnold and his wife to Richard Dougherty for $5,000 on the Shaw farm, and notes secured thereby to that amount; and a contract between Otis Arnold and plaintiffs. Certain abstracts were produced, and there is no dispute that Mr. Arnold took the abstract of the Shaw farm to his attorney, Mr. Bean, for his examination and advice. What was said and done on his return is controverted. The plaintiffs claim that defendant announced that he was satisfied with the abstract of title, and that all parties were anxious to close up the transaction. That the deeds from the plaintiffs to the Shaws of the Branch county farm were duly executed, delivered, and accepted. But such deeds lacked the signature of Mrs. Dougherty, who was not present, but was at home on the farm; and the question came up, what should be done under the circumstances? That defendant had arranged with Richard Dougherty to borrow $5,000 from him on the Shaw farm, that being the amount he was to pay plaintiff on this purchase, and Richard Dougherty refused to discharge his mortgage on the Branch county farm until he had gotten from Mr. Arnold the notes and mortgage on the Shaw farm which he was to receive. That Barnard stated to the parties that, in order for Mr. Arnold to execute the notes and mortgage to Mr. Dougherty on the Shaw farm, it was necessary that the defendant first accept the deed made to him by the plaintiffs. That defendant then took the deed, and looked it over, and said it was all right, except Mrs. Dougherty had not signed it; and then asked Richard Dougherty if he would become responsible for the execution of the deed by Mrs. Orville Dougherty, provided he (defendant) would accept the deed in the condition it then was. That Richard Dougherty said he would become responsible that she should sign the deed. That he would take it himself to her, and have her sign it, and send it back, and that he would become responsible for her signing it. That defendant then said he would accept the deed as it was, and told Mr. Dougherty to leave the deed after obtaining such signature at Mr. Barnard's office for him. That defendant then executed three notes, which were drawn by his direction, aggregating $5,000, and then delivered them to Mr. Dougherty; and also executed a mortgage upon the Shaw farm to secure the payment of such notes, and delivered that to Richard Dougherty. After that was done it is further claimed by the plaintiffs Mr. Barnard drew the contract, a copy of which will be found in the margin. ^[1] This contract was signed by the parties to this suit. Plaintiffs claim that the reason why a deed from Arnold to plaintiffs was not drawn and executed at the time was that the quantity of land was not known, and it required a survey to ascertain the quantity and aggregate value at the agreed price. That after the papers were all executed Richard Dougherty said he might want to sell the mortgage, and he thought it might sell better if it was executed by Mrs. Arnold. A notary and witness was then sent over to get the signature and take the acknowledgment of Mrs. Arnold to the mortgage, but she absolutely refused to sign the mortgage. The next day the Shaws commenced to remove to the farm in Branch county, and towards evening Dikeman took a load of household goods to Arnold's, but was refused permission to leave them; and Arnold refused to do anything further about carrying out the contract. The above is the transaction as the plaintiffs claim it to have occurred.

The defendant claims that he told Mr. Dikeman that he wanted his own attorney, Mr. Bean, to draw his papers, and to look over the abstract of the Shaw farm, and the will through which Mrs. Shaw claimed, and that if everything was right he would not then sign any papers until his wife agreed to the trade. That the plaintiffs gave him a partial abstract of the Shaw farm, which he took to Mr. Bean's office for him to examine, and was told by Mr. Bean that the abstract was not down to date, and was imperfect in other particulars. That he (Bean) was just going away to a funeral, and could not look after the matter that day, but would look after it when the abstract was completed. That when he went back he met Mr Dikeman on the stairs leading to Barnard's office, and told him what Bean said, and then told him that he would accept no title until Mr. Bean had looked over the completed abstract, and all the papers, and pronounced them correct; and Dikeman replied, that was all right; they would get a complete abstract, and Mr. Bean should pass upon it, and upon the papers, but the papers could be drawn that day, and be left with Barnard for Bean's inspection; and they went on and drew the papers. That when George Arnold, the son of defendant, who was present a portion of the time, went home to dinner, he found his mother unalterably opposed to the trade; and when he came back to Barnard's office he testifies that he so told Orville Dougherty, and that Dougherty said they would get the papers ready to sign, and if she would not sign, that would end it. That when the papers were drawn Mr. Barnard suggested it would be well for those present to sign, and that it would save their coming...