Eggleston v. Wagner
| Decision Date | 12 October 1881 |
| Citation | 10 N.W. 37,46 Mich. 610 |
| Court | Michigan Supreme Court |
| Parties | EGGLESTON v. WAGNER. |
Where one is present and dictates or assents to the signing of an instrument in his name, and upon his behalf, it is a signing by him, and the authority of the person performing the manual act need not be in writing.
A proposal for the sale of real estate, to make the description sufficient within the statute of frauds, need not be so particular as to render a resort to extrinsic evidence unnecessary, but the terms may be abstract and of a general nature, if sufficient to fit and comprehend the property which is the subject of the transaction, so that with the assistance of external evidence the description, without being contracted or added to, can be connected with and applied to the very property intended.
To constitute a contract of sale, where a proposition on one side, and an alleged acceptance on the other, is relied upon the acceptance must be of the proposition as made, and the party cannot insist upon anything more than a compliance with the original proposal.
May 19th one partner made a proposal to sell out to the other his entire interest in the partnership business for a certain sum, purchaser to assume all liabilities. Subsequently he consented to keep such proposition open until July 1st subsequent business to be transacted on that basis. Before that date considerable changes took place. Indebtedness existing on May 19th was paid off, and the partner making the proposal purchased the interest of the other, the business in the mean time being continued. Held, that the proposal was for the interest as it stood on May 19th, and the person to whom made could not, by tendering on June 30th the amount agreed to be taken, insist upon a transfer of all the other party's rights as they existed on said last-named day and that such tender and demand did not constitute an acceptance of the proposition so as to make a binding contract.
Error to Kalamazoo.
Severens, Tryon & Ranney and Dallas Bondeman, for plaintiff in error.
O.W Powers and M.J. Smiley, for defendant in error.
Wagner brought this action to recover damages on account of Eggleston's alleged failure to convey his interest in certain real and personal property in pursuance, as claimed, of a contract therefor between the parties.
The case was brought to trial last February before a jury in the circuit court for the county of Kalamazoo and under the rulings on points of law a verdict was given in favor of Wagner for $9,000. Several objections were taken on the part of Eggleston during the trial and he asks a re-examination on writ of error and bill of exceptions of a portion of them.
Before touching any of the questions of law some preparatory reference is expedient to certain facts and circumstances immediate and surrounding and many of which are not disputed. The parties in the latter part of the year 1878 formed a partnership at Kalamazoo for the purpose of carrying on what is called in the record the "Kalamazoo Spring & Axle Works." The style of the firm was "Eggleston, Wagner & Co.," but the seat of business together with the enterprise were distinguished by the trade-mark of the "Kalamazoo Spring & Axle Works." A considerable amount of real and personal property was invested, but the capital put in by Wagner was somewhat less than what Eggleston furnished. The business soon expanded into pretty large proportions and turned out profitable. The parties were also partners in a business at Mishawaka in Indiana. May 19, 1879, Eggleston delivered to Wagner the following proposition in writing:
This paper with the exception of the paragraph "I will say forty thousand," was in ink and was written at Eggleston's personal dictation and in his presence by Mr. Tuthill, a clerk of the firm. The excepted passage was interlined in pencil by Mr. Eggleston. At this time and during the succeeding 42 days or up to July 1st the subject-matter referred to in this paper was variable. The parties kept the business going, and considerable changes were necessarily incident to any progress. June 19, 1879, it was mutually agreed that Wagner should retire from the firm, he being paid by Eggleston the money he had put in with interest at 8 per cent., his salary $125 per month, and so much of the assets of the Mishawaka business as had been collected. The amount was then figured up by McCamly, a clerk of the firm, and he swears that the amount on the account of the business at Mishawaka was $323.12 and that to be paid on account of "spring business with interest and salary and Mishawaka business" made a total of $13,426.65 and that this sum was immediately paid by check.
Wagner admits that this "composed his whole interest in the business here" (at Kalamazoo) "and so much of the Mishawaka business as had then been collected in." On the same day, McCamly, by Eggleston's personal direction and in his presence, indorsed on the paper of May 19th the following writing: In regard to the actual circumstances under which this indorsement originated the evidence is discordant. Wagner swears that it formed a part of the agreement for his retirement and the relinquishment of his interest to Eggleston and was a part of the consideration he, Wagner, exacted. Eggleston and McCamley, however, testify that it was a distinct transaction. Their explanations are materially different. Wagner testifies that Eggleston informed him on the sixth of June that if he would withdraw the money he had in the firm and 8 per cent. interest and $125 per month, that he would extend the thing to July 1st, and would sell his interest in the business for $40,000. That the subject was renewed on the ninth of June and that he, Wagner, then inquired of Eggleston if he would include in his proposition a settlement of the Mishawaka business so far as the assets had been collected, to which he replied affirmatively, and that the extension was made in the same interview and before he, Wagner, left the office and that the paragraph in pencil was still in the original paper.
Eggleston testifies that up to the time of ascertaining and deciding on June 9th what sum was to be paid to Wagner for going out nothing had been said about extending the time in case he would take out his money. That the subject was not mentioned until Wagner had received his check and had started to go out of the room. That he, Eggleston, then said he was sorry it had turned out as it had as he was in hopes Wagner would take the property and asked him if it would do any good to extend the time. That Wagner replied that he did not know as it would as he had tried about everybody to get the money, and he asked if he, Eggleston, would make the price any less, to which the latter said he would not, but if Wagner would pay him $42,000 by July 1st he might have it. That Wagner went away and some time afterwards returned, but on the same day, and inquired of Eggleston if he would put that agreement on the back of the contract; to which the latter replied that he would, and immediately dictated to McCamly the matter contained in the indorsement. That he, Eggleston, did not himself sign it and that McCamly had no authority in writing to sign his name.
When produced on the trial the paper of the nineteenth of May had undergone some alteration. The paragraph in pencil had been rubbed out and the statement in ink of the sum to be paid had been reduced from $42,000 to $40,000.
Wagner testifies that Eggleston made the change on June 27th at his request, and that he explained the object to be to remove a seeming ambiguity.
Eggleston swears that some time after the ninth of June Wagner called and asked him if he would not make the price $40,000 and he refused, and that Wagner then requested him to rub off the pencil marks as it was rather ambiguous as it was; and he thereupon "rubbed it off partially and then Mr. Wagner took the rubber and rubbed off some more." That no change was made at that time in the amount specified in ink, and that the alteration from 42,000 to 40,000 in that part of the paper set down in ink was not done by him, Eggleston, or in his presence or by any one with his authority.
The testimony of McCamly tends to corroborate Eggleston in regard to these disputed matters. But under the charge given by the court it is to be inferred that the jury gave credence to Wagner's version.
June 30, 1879, Wagner called on Eggleston at his office and informed him that he "had come there with $40,000 in greenbacks to close up the trade" and produced the money and offered to count it but Eggleston waived it. At the same time Wagner procuced a blank bill of sale from Eggleston to himself ready to be executed and delivered and three full covenant deeds running to himself from Eggleston...
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