Druse v. Wheeler

• Decision Date: 23 November 1872
• Citation: 26 Mich. 189
• Court: Michigan Supreme Court
• Parties: Henry Druse v. Aaron R. Wheeler and others

26 Mich. 189

Henry Druse v. Aaron R. Wheeler and others

Supreme Court of Michigan

November 23, 1872

Heard October 12, 1872

Error to Washtenaw circuit.

This action was trespass quare clausum, etc., brought by plaintiff in error, for breaking his close and committing various grievances, and removing certain fences and sheds.

Defendants pleaded the general issue and gave notice of license, and also of title in a Baptist church, of which they were trustees, and as such did the acts in question.

On the trial it appeared that plaintiff owned a farm, adjoining the church lot, and on November 26, 1867, entered into a contract with the trustees, whereby, as soon as the trustees could get legal authority to act, plaintiff was to deed, by warranty deed, to the church the lot they occupied, and a part of his adjacent premises, and the church was to quit-claim to him the half-quarter section, including the farm and church premises, and agreed to occupy the land deeded by him, for church purposes, parsonage, sheds, etc., to build their erections at certain specified places, and not to sell the premises for any other purpose, except for farming purposes.

On the same day plaintiff gave verbal permission to build horse-sheds on that part of his land which was ultimately to be conveyed to the church, and the trustees set back the fence, and began to prepare the land, and had got the sills laid upon the ground, when further work was suspended by reason of the cold. Early in April, when the work was about to be resumed, the plaintiff forbid further proceeding with the buildings. The evidence as to what actually took place at this interview is fully set out in the opinion. The parties however, went on and built their sheds. About fifteen months afterwards, the plaintiff moved his fence back so as to include the sheds, and four days later, on July 6th, 1869 the defendants tore down the fences, removed the sheds, and committed the trespass complained of. The sheds erected were seventeen in number, and were for the individual use of such as paid for them, and were so used without interference from the plaintiff, while they remained standing.

The questions raised, and how they are raised, are sufficiently set forth in the opinion.

Judgment reversed, with costs, and a new trial awarded.

S. E. Engle and H. J. Beakes, for plaintiff in error.

C. Joslin, for defendants in error.

OPINION

Christiancy, Ch. J.

This case was formerly before us upon a similar (though not precisely the same) state of facts, and the judgment being reversed, was sent back for a new trial: See 22 Mich. 439. A new trial having been had, the case is again brought before us by writ of error and exceptions taken on the trial, by the plaintiff below, who is also plaintiff in error.

For the nature of the written contract between the plaintiff and the trustees of the church, which was given in evidence on the trial, and its effect, as well as the general nature of the controversy, we refer to the opinion of this court in the case above cited.

Upon the last trial, which is now in question, there was no pretense on the part of the defendants (the trustees, and those assuming to act under them in the removal of the sheds from the plaintiff's land) that the trustees had performed, or offered to perform, the contract. On the contrary, it was distinctly proved by some of the trustees themselves, and not disputed, that, before the erection of the sheds upon the plaintiff's land, they had deliberately determined not to perform the contract on their part; though it was evident from the whole testimony, and not in any way controverted, that the only license given by the plaintiff for placing the sheds, or any part of them, upon his land, was given on the faith of, and in reliance upon, their undertaking to perform the contract on their part, and that it was only by their performing that contract that they could expect to acquire the right of erecting and maintaining their sheds upon his land.

As the contract gave the trustees (or the church which they represented), no right of possession, and did not even operate as a license to use the land of the plaintiff for the sheds, or for any other purpose, until performed by the trustees, and it never was performed or attempted to be performed by them, it is not easy to see what bearing it could have, or how it could be material to the controversy. It tended, it is true, in connection with the proof of its non-performance, to show the good faith of the plaintiff in originally granting the verbal license to place the sheds upon his land. But it is difficult to see how it could have any other bearing upon the case.

That it did not operate as a license for the erection of the sheds, was fully settled by this court in the case as formerly presented; and this contract being inadmissible for any such purpose, there was no evidence nor any pretense of evidence, tending in any possible degree to show any other than a verbal license for the erection of the sheds upon the plaintiff's land. And the testimony upon both sides agrees entirely that the license given was a merely verbal license, given in the fall of the year 1867; that the sills were soon after laid down; but that they did not raise, or get ready to raise the sheds, until the day after the township meeting in April 1868.

As to the question of the revocation of the license, the testimony on both sides, when properly considered, is equally clear, direct and positive, that on the morning of the day after the township meeting, when the defendants (or their contractor) were getting ready to raise the sheds, the plaintiff revoked the license to erect them upon his land, and forbade their erection there. In every particular essential to the question of revocation the testimony upon both sides equally and directly goes to prove this revocation, the only discrepancy being upon a point immaterial to the question.

That on the part of the plaintiff, by himself and William Druse, was, that the plaintiff forbade them to raise the sheds, or to do any thing more on the land; on the part of defendants, Brooks, who was the contractor and one of the trustees, as well as a defendant, says, it is true, in the beginning of his testimony upon this point, "Mr. Druse did not revoke his permission before the sheds were raised, that I know of;" yet he immediately goes on to state what he claimed that Druse did say, thus showing that all he meant by saying that he did not know that Druse had revoked the license, was, that he did not know that this amounted in law to a revocation; for, after the words just quoted, he proceeded to say: "In the morning of that day of the raising, and before the sheds were raised, Mr. Druse came on the premises where I was at work getting ready to raise, and forbade the raising of the sheds, until we performed the contract. He asked me if I was one of the trustees; I told him I was; he forbade me to raise the sheds until we fulfilled the contract." He further says: "George Andrus, one of the defendants, was present when Druse forbid it." Andrus, being sworn, says he was present, and says: "Druse said to Brooks, I forbid you raising those sheds until the contract is carried out,' or something to which Brooks answered, We have, on our part.'"

Now, it is manifest that the only substantial difference between the testimony on the part of the plaintiff, and that on the part of the defendants, in reference to the forbidding the erection of the sheds, is, that the one states the inhibition as unlimited and entirely unqualified by any reference to the performance of the contract, and the other, that the inhibition was until the contract should be performed. Yet all the testimony on both sides shows, that the contract was not then, and never has been, performed; and that on the part of trustees and defendants, shows directly, and without qualification that, prior to the time when Druse forbade the erections, they had deliberately determined never to perform it. And Gooding, one of the trustees, says: "In the spring, before the sheds were raised, we had decided not to perform the contract we made with Mr. Druse, and I believe I did, about that time, tell Harmon Allen, confidentially, that we had taken counsel, and had decided that it was not best for us to perform the contract, and we should not do it. I believe we did not inform Mr. Druse of our intention not to perform the contract; we made out a deed for him, but not in accordance with the contract; we did not quit-claim to him the east halt of the northeast quarter of section twenty-two, as required by the contract."

Under these circumstances, if, as stated by defendants' witnesses the...