Hammond v. Hannin

• Citation: 21 Mich. 374
• Court: Supreme Court of Michigan
• Decision Date: 06 October 1870
• Parties: Henry Hammond v. Catherine Hannin

21 Mich. 374

Henry Hammond v. Catherine Hannin

Supreme Court of Michigan

October 6, 1870

Heard July 9, 1870 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Van Buren circuit.

This was an action of assumpsit brought by Catherine Hannin in the circuit court for the county of Van Buren, against Henry Hammond, to recover damages for the breach of a contract to sell and convey to the plaintiff a parcel of land. The plaintiff averred in her declaration that she had sustained special damages by reason of the expenditure of large sums of money on the land for improvements and payment of taxes, and the loss of the profits upon the sale of a portion of the premises. The defendant pleaded the general issue. The facts alleged by the defendant, by which he was prevented from performing the contract, and the rulings and charge to the jury of the circuit judge, on the trial, on which the questions brought into this court for review arise, are stated in the opinion of the court.

Judgment reversed, and a new trial ordered.

Newton Foster and M. J. Smiley, for plaintiff in error:

1. It was error to admit oral evidence to prove an agency to purchase lands by contract.

2. It was error to admit parol evidence to prove the amount paid for taxes on sad premises, when the tax receipts were in existence, without accounting for their absence. (a) Tax receipts are required by law to be given by the township treasure on payment of the taxes, and are original evidence: Comp. Laws, § 843; Johnstone v. Scott, 11 Mich. 232. (b) The giving a receipt by the township treasurer is an official act: Johnstone v. Scott, 11 Mich. 232. (c) Parol evidence cannot be substituted for them to prove the amount paid unless their loss be first proved: 1 Greenl. on Ev., § 84; Harris v. Whitcombe, 4 Gray 433.

3. It was error not to allow the defendant, Hammond, to testify as to the price for which said land was sold at auction sale as evidence tending to show its value. (a) When the auctioneer knocked down the property, the terms of the contract were fixed: 1 Par. on Cont., 496. (b) In a sale of land at auction, the consideration cannot be changed from that at which it was struck off. (c) Hammond being present at the sale and hearing the bids, and knowing when the auctioneer struck off the land, would be competent to testify as to the highest amount bid. (d) Evidence of what the property sold at auction is admissible as having a tendency to prove value: Smith v. Mitchell, 12 Mich. 180; Campbell v. Woodworth, 20 N. Y., 499.

4. There was error in not admitting the record of the deed given by the guardian of John M. Gordon to the vendor of said land at said auction sale, to show the consideration for which said land sold, for the purpose of proving the value of said land. (a) The consideration stated and acknowledged in a deed is presumed to be the true value agreed to be paid: 2 Washb. on R. Propt., 2d ed. (619), 658; 4 Kent (465); Amden v. Manchester, 40 Barb. (b) A deed is the final consummation of the transaction, and embodies the agreement of the parties, hence the best evidence. (c) The deed was duly acknowledged, and the truth of its recitals and its validity are presumed: 1 Greenl. Ev., § 38; Dewey v. Dewey, 1 Met. 349. (d) For the purpose for which this record was offered, it was immaterial whether the court had jurisdiction or not, so long as it appeared that there had been a regular sale.

5. It was error to refuse to instruct the jury that unless the defendant acted in bad faith in refusing to give a deed of said land according to the terms of the contract, the measure of damages is the money paid and the interest thereon: 3 Par. on Cont., 228; Sedgw. on Dams., 2d ed., 202; Flureau v. Thornhill, 2 W. Bla., 1078; Walker v. Moore, 10 B. and C., 416; Worthington v. Warrington, 8 Man. G. and S., 134; Conger v. Weaver, 20 N. Y., 140; Munn v. Baldwin, 2 Wend. 399; Peters v. McKeon, 4 Denio 546; Fletcher v. Button, 6 Barb. 646; Key v. Key, 3 Head (Tenn.), 448; Sweem v. Steele, 5 Iowa 352; Stewart v. Noble, 1 Greene (Iowa), 126; Thompson's v. Guthrie's, 9 Leigh 101; Combs v. Tarlton, 2 Dana 465; Allen v. Anderson, 2 Bibb 415; 2 Blackf. 147. (a) That on an executory contract for the sale of land, where there is no fraud on the part of the vendor, if the sale falls through in consequence of a defect of title, the measure of damages is substantially the same as it is in the case of an executed sale on covenants for seizin and for quiet enjoyment: Sedgw. on Dams., 2d ed., 204; Munn v. Baldwin, 2 Wend. 399; Peters v. McKeon, 4 Denio 546; Allen v. Anderson, 2 Bibb 415; Fletcher v. Button, 6 Barb. 646; 2 Blackf. 147; Sweem v. Steele, 5 Iowa 352; Stewart v. Noble, 1 Greene (Iowa), 26. (b) That on an executed contract of sale of lands, if the title fails, the measure of damages is the consideration money and interest: 4 Kent 475, et seq.; Staats v. Ten Eyck, 3 Caines 111; Smith v. Strong, 14 Pick. 128; Pitcher v. Livingston, 4 Johns. 1; Bennet v. Jenkins, 13 Johns. 50; Summer v. Williams, 8 Mass. 162; Byrnes v. Rich, 5 Gray 518; 1 Sugd. on Vend., 41 Penn. St., 206; 34 Penn. St., 418; Ch. on Cont., 278; Hall v. Delaplaine, 5 Wis. 206; Lester v. French, 6 Wis. 580.

In this case the circuit judge charged the jury that the question of bad faith was not in issue, therefore it must be conceded that the defendant, Hammond, acted in good faith, and there was no attempt on his part to commit a fraud upon the plaintiff. It was a mutual mistake of each acting innocently, and it may be justly said that it was the duty of the purchaser to examine the title, and find out the authority of the vendor to sell them. One should not be liable to the other for their mutual fault, neglect, or mistake.

T. H. Stephenson and H. F. Severens, for defendant in error:

The statute of frauds only requires that the contract for the sale shall be executed by the vendor, or some person by him authorized in writing: Sec. 3179, Comp. L. And it is entirely settled that a written authority is not necessary, where a seal is not necessary, to the validity of an instrument executed under the authorization: Sweetzer v. Mead, 5 Mich. 107; Worrall v. Munn, 1 Seld. 229; Despatch Line v. Bellamy Man. Co., 12 N. H., 205, 234-7; Hunter v. Parker, 7 M. and W., 322.

It is next assigned as error that the witness of the plaintiff was allowed to answer the question, what amount of taxes she paid, "as a charge" against defendant. The objection in the court below was: 1st, that it was "immaterial;" and, 2d, that the proof offered was "not the best evidence." It does not appear that the proof was offered specifically to establish a "charge" against defendant. But if that is to be inferred, the objection should have pointed out the ground on which it was founded, and not have left the court and opposing counsel to grope after the reasons for it: Camden v. Doremus, 3 How. U.S., 515; Jackson v. Hobby, 20 Johns. 357, 362-3; Elwood v. Deifendorf, 5 Barb. 398; Owen v. Frink, 24 Cal. 171; Leet v. Wilson, 24 Cal. 398; Mumford v. Thomas, 10 Ind. 161; Aurora v. Cobb, 21 Ind. 492; Dewey v. The Northwestern Unity, 16 Ind. 220; White v. Chadbourne, 41 Me. 149.

The objection, that the proof offered was not the best evidence, has no force. The tax receipt is no better evidence than the testimony of the witness: Dewitt v. Crocker, 8 Greenl. 239; 1 Greenl. Evidence, § 90.

It is also claimed that there was error in permitting the plaintiff to show that she had contracted to sell certain lands included in her purchase. It will be seen that the court admitted the testimony, for the single purpose of showing that plaintiff had ratified the contract executed in her behalf by Bartly Hannin, as her agent. And it was admitted because the defendant had objected that the execution of the contract was not shown to be authorized by her.

The only remaining, but, indeed, the vital question in the case, is: What is the measure of damages in the case of a breach by the vendor of an executory contract for the sale of real estate? As the record discloses, there was no defense to the action, and the case was confessedly little more than an inquest of damages, the defendant insisting throughout that the plaintiff could recover only the amount of the consideration and interest.

The early English case of Flureau v. Thornhill, 2 W. Black., 1078, held that the measure of damages in such cases was the consideration and interest from the time of payment. Scarcely a decided case in the reports appears more unsatisfactory in the manner of decision, and it is not surprising that the English courts, though they profess themselves bound by it, have sharply criticised the case, and have narrowed the domain of its authority to bounds so narrow that the courts there almost always, upon some pretext, find themselves able to go around it.

Its authority was deeply trenched upon in the case of Hopkins v. Grazebrook, 6 B. and C., 31. In Simons v. Patchett, 7 El. and Bl., 572, Lord Campbell pronounces the rule of Flureau v. Thornhill anomalous. And finally, after running the gauntlet in a score of cases where the judges fritter and explain it away, it meets, in the latest reported case upon the subject in England, the most pointed condemnation and almost open rebellion, in Engel v. Fitch, Law Rep., 3 Q. B., 314; 4 Q. B., 659.

Upon the whole, it appears that the only reason that is invoked in support of the limited authority of Flureau v. Thornhill is the unexpected difficulty which often arises from the complicated condition of titles to real estate in that country, a reason which does not exist here.

Some courts in this country have followed Flureau v Thornhill, generally without examining the...