Gates v. Gamble

• Decision Date: 06 March 1884
• Citation: 18 N.W. 631,53 Mich. 181
• Court: Michigan Supreme Court
• Parties: GATES and others v. GAMBLE.

18 N.W. 631

53 Mich. 181

GATES and others v. GAMBLE.

Supreme Court of Michigan

March 6, 1884

This is a bill for specifice performance. The contract is for the sale of lands, and the consideration is to be partly cash and partly a lumbering contract to be executed on the same land some of the terms only of which are fixed. In the absence of any arrangement as to when the lumbering contract shall begin, or how rapidly it shall progress, the contract for the sale of the land is imperfect, and it is impossible to give effect to it. The same defect exists as to the lumbering contract, and it cannot be enforced.

The contract for the sale of land upon the two considerations is not severable, and cannot be enforced to the extent of the definite portion.

Appeal from Ogemaw.

Parsney & Weadock, for defendant.

COOLEY C.J.

This is a bill for specific performance, and stands upon demurrer. The bill shows that on August 14, 1878, defendant was owner of an executory contract for the sale to him by Jesse Hoyt of certain pine lands, a certain interest in which he had previously assigned to Fulsom & Arnold. On the day named defendant entered into the following contract with complainants:

"August 14, 1878. I have this day sold to Gates & Fay all of a certain lot of land known as the Hoyt land, containing 2,800 acres of land, in town 24 north, range 4 east, in consideration of their making the payment due said Hoyt on said land contract, and a further consideration of one dollar to me which is hereby confessed, and a further consideration of a contract with them for the mutual lumbering by them and myself of the timber on said lands, wherein we mutually join in costs and expenses of land and expenses of lumbering, and each owning one-half of said logs or lumber from there; Gates & Fay providing, or causing to be provided, the necessary means to or for the prosecution of the work, charging to the lumbering moneys, and interest at ten per cent., and they holding the logs or timber for security for the same."

This contract was signed by the parties respectively, but after its execution it was discovered that an error had occurred in drafting it, which consisted in the omission of words to show that each party was to be owner of one-half the land as well as one-half the logs. This error the bill prays may be corrected. It was also discovered that by mistake the defendant had made his assignment to Fulsom & Arnold broader than was agreed, and had covered by it the land described in the contract with complainants. Hoyt, in consequence, refused to recognize rights in any one but Fulsom & Arnold, and it became necessary for defendant to bring suit against Fulsom, Arnold, and Hoyt to have his rights in the land established. This suit was not brought to a conclusion until October, 1882, when it terminated favorably to the defendant. Meantime complainants had made certain advances to defendant towards expenses, amounting in all to $650, and had also paid $28 for taxes, upon an understanding that when the litigation with Fulsom, Arnold, and Hoyt was concluded the contract with them should be performed. Defendant, however, now declines to recognize their rights.

The bill prays that the contract between complainants and defendant may be established and decreed to be of full force and effect; that it may be declared and decreed that defendant on his part execute and...