Franck v. Wiegert

• Decision Date: 29 April 1885
• Citation: 23 N.W. 172,56 Mich. 472
• Court: Michigan Supreme Court
• Parties: FRANCK v. WIEGERT.

23 N.W. 172

56 Mich. 472

FRANCK v. WIEGERT.

Supreme Court of Michigan

April 29, 1885

Error to Wayne.

W.B Jackson, for complainant.

Henry M. Cheever, for defendant and appellant.

SHERWOOD J.

The plaintiff in this case alleges her cause of action against the defendant in three counts: (1) For an assault and battery; (2) for malicious prosecution; and (3) for false imprisonment. The plea is the general issue. The circumstances out of which the cause of action arose are these: John C. Franck, husband of the plaintiff, on the fifteenth day of January, 1880, by written contract, agreed to sell to the defendant a strip of land in the township Ecorse, in the county of Wayne, for the sum of $80 per acre and which agreement was also to be a settlement of all suits then pending between the parties, whether "of a civil or criminal nature." Such agreement was to be fully carried out by the parties before the first day of September, 1880. Louis Wiegert tendered the money agreed to be paid for the land within the time required for its payment to John C. Franck, and asked for a deed. The tender and deed were both refused, and between that time and the sixteenth day of October following, Wiegert, claiming the right to possession of the property contracted for, went with his wife and their son upon the premises purchased, erected a shanty upon the property, and claimed the ownership thereof, and the right to hold possession of the same under the contract and tender made. On or about the seventeenth of October John C Franck and his wife, and others, under his direction re-entered upon the premises, tore down the shanty, and forcibly dispossessed the defendant and her husband, and treated him as a trespasser and intruder upon the property. Thereupon he obtained a warrant for the arrest of plaintiff and her husband on the charge of riotously and unlawfully tearing down the building and destroying the defendant's property of the value of $200. It is for the arrest and imprisonment under this warrant, and an assault and battery alleged to have been committed upon plaintiff by defendant with a pistol, when the attack was made upon the shanty, that this suit was brought.

There seems to have been no question made but that John C. Franck owned the property contracted to be conveyed, and could have conveyed it, if he had desired; nor that the tender was insufficient. Neither does it appear any question was made upon the pleadings. The cause was tried before a jury, and they found specially, upon questions submitted to them by the court on requests of defendant's counsel, the following facts: That John C. Franck gave the contract for the sale of the premises to Wiegert as claimed; that Wiegert made the tender as claimed to John C. Franck; that Wiegert did not take possession of the land purchased and build the shanty, believing he had the right so to do; that defendant Wiegert aimed a pistol at the plaintiff; and that he assaulted her with the intention of doing her bodily harm. Under the testimony and charge of the court, the jury gave their general verdict for the plaintiff on the first and second counts, and the court directed a verdict for defendant on the count for false imprisonment. Defendant brings error. The direction of the verdict on the third count was right.

The rights of the parties in this case must very much depend upon the terms and construction of the contract for the purchase of the land, entered into between John C. Franck and defendant. The plaintiff can claim nothing in the premises that her husband could not, had the assault complained of been committed upon him. There is no question made but that John C. Franck had peaceable possession of the property mentioned in the contract up to the time defendant entered. The contract gave the defendant no possession, or right to possession, until it had been fulfilled. The contract was only an agreement that John C. Franck would give defendant such possession at the time agreed, upon receiving from defendant payment of the amount stipulated as the price of the land. The contract itself was a settlement of the litigation between them. That part of the consideration had been received by plaintiff's husband. It does not appear that the defendant ever paid any money upon the contract, and, so far as the contract shows, the amount therein stated was all the money consideration there was to be paid for the land. In no event could the right of the defendant to a specific performance of the contract be litigated in this suit. That could only be determined in a court of equity.

The testimony, however, showing or tending to show what construction, if any, the parties themselves had put upon the contract, or of the judgment of a court of competent jurisdiction upon the rights of the parties themselves relating to the question of possession of the premises, was competent upon the issue made. The defendant does not claim adversely to the Francks, but as entitled to the possession under them. If the defendant, at the time he entered into possession of the property, had the right to that possession and he entered peaceably, such possession would be lawful, and neither the plaintiff nor her husband would have the right to forcibly put him out; and such would be the case even if defendant had no deed, if he was entitled to a specific performance of the contract. In this case it became a question who had the right of possession at the time the assault was committed,--the defendant, or John C. Franck. The defendant had taken actual possession, and if his actual possession was fortified by the right thereto obtained by contract from John C. Franck, it is difficult to see under what rule of law he could be...