Francis v. Barry

• Court: Michigan Supreme Court
• Writing for the Court: CHAMPLIN, J.
• Citation: Francis v. Barry, 69 Mich. 311, 37 N.W. 353 (Mich. 1888)
• Decision Date: 13 April 1888
• Parties: FRANCIS v. BARRY.

37 N.W. 353

69 Mich. 311

FRANCIS v. BARRY.

Supreme Court of Michigan

April 13, 1888

Appeal from circuit court, Kalamazoo county.

Action by Harriet Francis against Charles H. Barry, Jr., for damages for breach of contract to convey certain real estate. Judgment for plaintiff and defendant appeals.

CHAMPLIN J.

This action was brought to recover damages for a breach of contract made by the defendant with the plaintiff, by which he agreed to sell and convey to her a certain store property situated in the village of Schoolcraft, in the county of Kalamazoo, Mich., for the consideration of $2,500,-$2,000 to be paid down in cash, and the balance by her note of $500, to be paid by the rent of the store as it accrued, at the rate at which it was being rented, to-wit $400 per year, and which was payable in monthly installments. The declaration sets up that the contract is in writing, and consists of letters written between the parties on and prior to July 1, 1886; that the defendant claimed to be the owner of the real estate described in the first count of the declaration as "a strip of land twenty-six feet wide off of the north side of the north-west quarter of lot No one hundred and thirty-two (132,) and also the north-east quarter of the same lot, excepting a strip twenty-two (22) feet wide on the south side of the last-named parcel according to the recorded plat of the village of Schoolcraft, always reserving from the north side of both parcels an undivided one-half of the wall, and the land on which it stands," and generally known as the "Schoolcraft store," and the "Schoolcraft-store property." The declaration also alleges that, at the request of defendant, the completion of said agreement by the parties was extended until, to-wit, September 15, 1886, when defendant ascertained he had no title to the property, but that the same was in Charles H. Barry, Sr., father of defendant; and defendant stated that he would procure a deed from his father, to be made to plaintiff, of said property, within a reasonable time after said 15th day of September, and requested plaintiff to allow him a reasonable time to procure such deed, which plaintiff consented to do. Plaintiff avers that at all times from said July 1, 1886, until November 18, 1886, she was ready to accept from defendant a deed of the said premises, and pay defendant the amount which she had agreed to pay him, as aforesaid, and so notified defendant at several times; and within a reasonable time after said 15th day of September, 1886, she so notified the defendant, and offered to carry out her contract with him, and requested him to carry out said contract with her, and convey, or cause to be conveyed, to her said property; that defendant did not nor would, within a reasonable time after July 1, 1886, nor within a reasonable time after September 15, 1886, carry out his said contract, or convey, or procure to be conveyed, to plaintiff the said premises; but, before said reasonable time had elapsed, said defendant sold the premises to one William Roberts, and procured a deed thereof to be made to him by said Charles H. Barry, Sr., for a consideration of $3,000; and by reason thereof said defendant placed it beyond his power to carry out his contract with plaintiff, and by that act excused plaintiff from making any formal tender of the purchase money to him, although plaintiff was ready and willing, and offered, to pay the same to defendant as soon as he would have made to her such a conveyance as he agreed to make. The law appears to be well settled that a complete and binding contract may be created by letters, or other writings, relating to one connected transaction, if, without the aid of parol testimony, the parties, the subject-matter, and the terms of the contract may be collected. Allen v. Bennett, 3 Taunt. 169; Jackson v. Lowe, 1 Bing. 9; Dobell v. Hutchinson, 3 Adol. & E. 355; Jones v. Williams, 7 Mees. & W. 493; Telegraph Co. v. Railroad Co., 86 Ill. 246; Moore v. Mountcastle, 61 Mo. 424; Abbott v. Shepard, 48 N.H. 14. The plaintiff recovered judgment in the court below, and defendant brings the case into this court by writ of error, and insists that the judgment ought to be reversed for the following reasons: "(1) Because the plaintiff failed to show a sufficient description of the property; (2) because she failed to show a sufficient contract, in writing, to take the case out of the statute of frauds, and for the reason that the minds of the parties never met in contract relations; (3) because, all the evidence there was in the case bearing on the contract being undisputed, the court erred in submitting it to the jury to determine whether or not there was a contract; (5) there was nothing in the case to submit to a jury; (6) there was error in the admission of other evidence to which we will specifically call the attention of the court." The correspondence is too lengthy to warrant us in setting it forth in detail. It consisted of letters written to and from the defendant. Those written to defendant were, for the most part, written by plaintiff's husband, and, as she testifies, at her request; and the replies to such letters were addressed to him by the defendant. As no question is made as to his authority to so act for plaintiff, but the correspondence conducted by him has been treated throughout as hers by both parties, we shall so regard it. Notice was given to the defendant to produce the letters written by and on behalf of the plaintiff upon the trial of the cause, and, upon being requested so to do upon the trial, defendant's counsel replied: "We have some of them, and some of them have been destroyed." No explanation was given of the reason why, or the circumstances under which, they were destroyed, or by whom. No great lapse of time occurred during which they might become lost as deemed unimportant. The correspondence closed in the fall of 1886, and this suit was commenced soon after, and was tried in June, 1887. He was apprised by a letter from her of date October 8, 1886, to which he replied under the same date, that she was advised that his letter made out a contract of sale, and hence he would see the importance of preserving the correspondence so far as it was in his hands, especially if it failed to show what was the subject-matter of the sale. The plaintiff was under the necessity of resorting to secondary evidence of that portion of the contract. And if there should be any discrepancy between the parties in their testimony regarding the contents of such letters as he received, and failed to produce, the presumption, from the fact of his having destroyed testimony in his hands, would be against his assertion, and in favor of hers, which the jury would be entitled to consider when weighing their testimony. The correspondence starts with a letter written by the plaintiff to defendant, asking him if he would sell that Schoolcraft store for $3,000, and take $1,000 in goods; to which he replied, under date of December 22, 1884: "I will sell the property for $3,000, but I can't take goods. We have a big stock, and are trying to reduce it, but it is slow business. Can you tell me any one who will let me have $2,000 on the property. I would like to raise that amount. Please let me know, and oblige." She afterwards wrote offering him $2,500 for the store,-$2,000 in money, and $500 in notes, and apply the rent on the notes. He replied August 26, 1885, saying that he could not sell that property for less than $3,000, and that it seemed to him that she would do well to buy it at that price, and offering to take $2,500, and her note for the other $500, and count the rent against it of the lease, which would pay more than half of it. Plaintiff again wrote him, offering him $2,000 in money, and her note for $500, and let the rent apply on the note; to which he replied September 7 or 9, 1885, as follows: "I will sell you that property for what you offer, if you give me the rent until April 1st. I want to sell it. I have no time to attend to it, or look after it. It's cheap, I am sure, and thought I never would sell for that; but I think it's best to let it go, if I can get that for it." To this plaintiff replied, October 8, 1885: "Will say to you that I will take the property as soon as I can raise the money. Think I can in a few weeks. I talked with Mr. Hoyt yesterday. He told me he thought he could raise the money for me." No contract seems to have been consummated between the parties up to this time. The next containing anything is a part of a letter produced by plaintiff, which is dated November 10, 1885, and contains a part of a sentence written by defendant: "I hope you will take the property and ***" The balance of the letter plaintiff testifies is lost. The matter continued thus until March 1, 1886, when defendant wrote: "I expected to hear from you before this time, or see you. Do you think you will take the property? Please let me know, and oblige." To this plaintiff replied that she would raise the money as soon as possible, by the fore part of April, she thought. He waited until May 10, 1886, when he wrote again: "Is it expected that you will take the property soon? I must sell it, or raise some money on it, soon. If you cannot raise the whole I will take $2,000, and rent for the rest." Plaintiff does not testify that she made any response to this letter; and May 14, 1886, defendant writes plaintiff's husband: "I supposed until yesterday that the store at Schoolcraft was rented, when Mr. Robbins sent word to know if I would sell it to him." He tells him that he is going home the next Monday to be gone two or three weeks; that he had sent word to Mr. Robbins that he would sell, or that he could talk to Mr. Francis about it; that he told him he thought...