Hollister v. Brown

• Decision Date: 05 October 1869
• Citation: 19 Mich. 163
• Court: Michigan Supreme Court
• Parties: George E. Hollister v. Isaac A. Brown et al

19 Mich. 163

George E. Hollister v. Isaac A. Brown et al

Supreme Court of Michigan

October 5, 1869

Heard July 12, 1869 [Syllabus Material]

Error to Kalamazoo Circuit.

This is an action of assumpsit brought in the Circuit Court for the County of Kalamazoo, by Isaac A. Brown and William F Browning against George E. Hollister, upon a special agreement to pay one-half of the expense of erecting a party wall. The defendant pleaded the general issue and gave notice of a tender.

The plaintiffs and defendant were owners of adjoining lots; and the plaintiffs being about to erect a building on their lot they entered into a verbal agreement by which the defendant undertook to pay to the plaintiffs (as claimed by them), the reasonable cost of one-half of so much of the division wall as he should use, and as soon as he should use or occupy it. The defendant contended that the first agreement was that he should pay for the cost of so much of the length and height of the wall as he should use above the ground; and that afterward, when he had taken some dirt out of the cellar of his building, he agreed to pay the plaintiffs for one-half of the wall he should use below the first floor of his building. The plaintiffs' building was 80 feet long and two stories high: the defendant's 60 feet long and one story high. The wall was 25 1/2 feet high--1 foot of stone, 3 feet 10 inches thick--6 1/2 feet of brick 16 inches thick, and 14 feet of brick 1 foot thick.

One of the plaintiffs was sworn as a witness, and testified that the defendant did not object to the measurement of the wall as stated by the plaintiff, but that he did object to the price charged for the work done and materials used, and that in one of their conversations it was proposed to submit to arbitrators the cost of the wall. Two persons were selected, and a paper was prepared to be submitted to them, which was in the following words:

"Gentlemen--You will decide upon the following specifications: First, the amount of brick in a foot wall 60x14; also, brick wall 60x6 1/2 16 inches thick; also a stone wall 4x60, average thickness 30 inches; also 60x1 foot 3 feet 10 inches wide."

"You will set a fair price for brick per 1,000, for stone per perch, and grout per perch, all laid in the wall, upon one undivided half. You will understand the waste of brick, etc., so as to give me enough to make me whole, without any profit to me above full cost."

The paper was not signed, and it was denied by the defendant that there had been any legal submission to arbitrators of the matters in controversy. The paper was offered in evidence in connection with the testimony of the plaintiff, and he was permitted to testify that the actual measurement of the dimensions, and amount of the division wall was reduced to writing and fully agreed upon by the plaintiffs and the defendant as being correct; which testimony, in connection with the paper, was offered and submitted as an admission of a fact by the defendant. It was objected to by the defendant's counsel, on the ground that the statement or proposition was made for the purpose of a settlement of controversies then existing which had since become the subject of this suit, and was therefore inadmissible. The admission of the testimony is one of the allegations of error, which are brought into this Court for review.

The witness was further allowed to testify, under objection, that the persons named as arbitrators proceeded to make a finding as to price without stating the amount, but the defendant expressed his dissatisfaction and did not assent to it. The admission of this testimony is alleged as error.

The evidence on the part of the defendant showed a set-off amounting to $ 54.50, of which one item was $ 3 for the use of defendants' pump by the plaintiffs. This whole bill was allowed without objection.

The defendant offered to prove a tender, after commencement of suit, of the sum of $ 185 as damages and costs of suit, which was objected to by the plaintiffs on the ground, that the suit was brought for the recovery of a damages for breach of contract, and not for the recovery of a sum certain, or which might be reduced to a certainty by calculation. The evidence was excluded, and on this, error is assigned.

In the rebutting evidence offered by the plaintiffs they were allowed to show that at the time certain items of stone and water lime, which were included in the defendant's set-off, were delivered, that defendant said that he would turn out the stone in payment of his half of the stone wall. The defendants objected that this was not rebutting testimony; but the objection was overruled. The plaintiffs also offered as a part of their rebutting testimony, that the pump, for the use of which the charge of $ 3 was made, stood on the defendant's land, and was used by plaintiffs in building their store and the division wall. This was objected to, as not rebutting, and for the reason that having once admitted the item, the plaintiffs could not introduce testimony to dispute it. The evidence was allowed, and error is assigned upon its admission.

The jury found a verdict for the plaintiff for $ 268.83.

Judgment affirmed with costs to the defendants in error.

May & Buck, for plaintiff in error.

John W. Breese, for defendants in error.

OPINION

Christiancy, J.

Had the defendant below objected to the writing, and the evidence of Brown in connection therewith,--offered for the purpose of showing that the amount and dimensions of the wall used by the defendant had been agreed upon by the parties,--on the ground that the paper was not signed by the defendant, and did not purport to speak for him; that it could only be used by the witness as a memorandum, or that it showed upon its face...