Dikeman v. Arnold
| Decision Date | 28 December 1889 |
| Citation | 78 Mich. 455,44 N.W. 407 |
| Court | Michigan Supreme Court |
| Parties | DIKEMAN et al. v. ARNOLD. |
Error to circuit court, St. Joseph county; NOAH P. LOVERIDGE Judge.
Action by Judson J. Dikeman and Orville Dougherty against Otis Arnold, for the value of land which plaintiffs allege defendant agreed to convey to them in exchange for certain lands which they allege they thereafter conveyed to him by deed of June 16, 1887, at the office of one Barnard, a conveyancer. A judgment for plaintiffs was reversed by this court, (40 N.W. 42,) and on the second trial plaintiffs again recovered judgment, and defendant brings error.
O. F. Bean and Howard & Roos for appellant.
Howell, Carr & Barnard, (Dallas Boudeman of counsel,) for appellees.
This is the second appearance of this case in this court. The facts and the matters in controversy were quite fully stated in the opinion of Mr. Justice CHAMPLIN when the case was here before, found in 40 N.W. 42, and will not here be referred to again, except in so far as it shall be found necessary to a proper understanding of the questions here discussed. Upon the second trial in the court below, the plaintiffs recovered judgment for $8,900.67. A motion for a new trial was made, and upon such motion it was ordered that, unless plaintiffs consented to a deduction of $799.30 from the amount of said judgment, a new trial would be granted; but, if such deduction was made, the motion would stand as denied. The deduction was made. Thereupon the defendant came to this court upon writ of error.
The first main objection raised here to the proceedings on the trial is in relation to the admission of evidence of the talks and negotiations between the parties to the suit, and also between Shaw and the plaintiffs, prior to June 16, 1887, the day plaintiffs claim the deeds were executed and delivered, and to the instruction of the court to the jury that "all the talks, negotiations, and contract, made prior to the time this deed [from plaintiffs to Arnold] is alleged to have been delivered and accepted, are wholly immaterial, except as they bear upon the question of delivery and acceptance." Among the items of evidence thus objected to are- First. The conversations in detail between plaintiffs and defendant at various times prior to said 16th day of June. Second. Testimony showing that the defendant was building an addition to his barn on his homestead, and gave directions to his help to stop work until the question of the trade was determined. Third. That he drew out manure between the 11th and 16th of June, and that he put it on lands other than that which he talked of trading. Fourth. The introduction of the contract of June 11th, which was shown to have been abandoned on the night of June 15th. This class of testimony is claimed to be clearly inadmissible to show delivery of the deed on the 16th, or afterwards, under the holding of this court in Pierson v. Spaulding, 67 Mich. 640-649, 35 N.W. 699. The main question of fact to be determined by the jury was the delivery of the deed by Dikeman and Dougherty to Arnold, and his acceptance of it. If this was not found, the case was ended in favor of defendant. This question of delivery depended mainly upon what transpired on the 16th day of June. This was the central transaction, and the question arises, what bearing, if any, did the transactions before that time have upon the fact whether or not the deed was delivered and accepted on that day? It appears from Mr. Arnold's testimony that he agreed to the contract of June 11th, as made by his son George, and that he went to town upon the 16th to make this trade, and that he there entered into the contract made upon that day; but his contention is that none of the papers passed that day, or were to pass; that it was understood and agreed that he should be satisfied with the title of the Shaw farm before the trade should be completed; that the deeds and all the other papers were to remain in the hands of Barnard, the attorney who drew them, and undelivered, until he could see Mr. Bean, his attorney, and have him look over the abstract of the title to the Shaw farm; that he took an abstract furnished by plaintiffs over to Bean's office on the 16th; Bean was going to a funeral, and did not have time to fully examine the abstract, but told Arnold that it was not a full abstract, and he wanted to examine the will under which Mrs. Shaw claimed title, and could not attend to it that day; that the papers had better not be changed that day; and Arnold replied that the papers were not to pass that day. In the view of the theories of both parties, testimony that Arnold stopped work on his barn before the 16th of June, and while the negotiations were going on, and that he drew out manure on other lands than those involved in this trade, was immaterial and irrelevant for any purpose, as the same could have no bearing upon any legitimate issue between the parties; and, if used, as it might have been under the charge of the court, to show, or as tending to show, a delivery of the deed, and a consummation of the trade on the 16th of June, or at any time thereafter, its admission was error. And while it was proper, and perhaps necessary, to show some of the prior negotiations between the parties from the beginning as a part of the history of the transaction, and to give the court and jury a proper understanding of what was in issue, many of the talks and acts of the parties, put in testimony in detail, had nothing to do whatever with any question in the case. If any of the testimony so given had been in conflict with the final contract as made on the 16th of June, it would not have been permitted to have any bearing or weight against the contract; and, if it were all in harmony with such contract, it could be of little use, except to show the steps leading to the transaction on the 16th. I fail to discover what bearing, if any, these talks and negotiations had, or could have had, upon the question of the delivery and acceptance of the deed by the defendant on the 16th of June. It is not claimed by plaintiffs that any contract was completed until that day, except the contract of June 11th, which was altered and modified by the arrangement claimed to have been made on the 16th. We think that all the talks and negotiations of the parties prior to the 16th of June, and the acts of the defendant, or any of the parties, before that time were in admissible, as bearing upon the question of delivery of the deed and acceptance of the same on that day, excepting the talk plaintiffs claim to have had with Arnold on the night of the 15th of June at his home in relation to the consummation of the trade on the following day. The case of Pierson v. Spaulding, 67 Mich. 649, 35 N.W. 699, is in point.
To claim that, because Arnold authorized his son George to enter into the contract of June 11th, or ratified it after it was made, and because Arnold was willing to trade in some way, and said or did things looking towards a trade before the 16th of June, the jury were to infer a probability that he accepted the deed of the Shaw farm upon an abstract admittedly showing an imperfect title, and closed the trade that day, would be erroneous, and not to be permitted by the law. If Arnold had disputed the making of the contract of June 11th, or that he ever had any idea of making this trade, or any trade, before the 16th, then these facts and acts and talks would properly have been admissible to disprove Arnold's claim. But when the theory of both parties was that a trade was being negotiated, and that they went to the office of Barnard on the 16th to close it up, and the only dispute of any importance between the parties as to what happened there was in relation to the delivery and acceptance of the deed,-the plaintiffs claiming that Arnold waived the apparene defect in the Shaw title, and accepted tht deed personally, knowing that the title was good, and the defendant claiming that he did not accept such deed, and was not to accept it until his attorney had examined the title, and found it to be good,-what had taken place before that time became entirely immaterial and irrelevant upon the issue of such delivery, unless Arnold could be shown to have said or done something indicating an intention, before going there on the 16th, to take a deed of the Shaw farm without consulting his attorney or investigating the title; and we find no evidence in the case showing such an intention previous to the transactions on the 16th. Consequently, the court erred in his instructions in this respect, and should have charged them directly to the contrary, to wit, that the talks, negotiations, and acts of the parties previous to the 16th had no bearing whatever upon the question of the delivery and acceptance of the deed upon that day.
We think the plaintiffs were entitled to show all that took place between any of the parties in Barnard's office on the 16th of June in the presence and hearing of the defendant. The plaintiffs, also, were entitled to prove all that took place after the 16th between themselves and Arnold or any act or acts of Arnold having a tendency to show that he accepted the deed on that day. It was proper to show that Dougherty moved a load of goods to Arnold's place on the 18th of June, and that Arnold would not let him unload them, and we fail to discover how this testimony could have injured the defendant. If Dougherty's moving his goods had a tendency to show that he supposed the trade was completed on the 16th, then the conduct of Arnold in refusing to let him unload them also tended to show that Arnold did not suppose the trade had yet been made, and the question in issue was Arnold's intention to accept the deed, and whether...
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