Kelsey v. McDonald
| Decision Date | 11 July 1889 |
| Citation | 76 Mich. 188,42 N.W. 1103 |
| Court | Michigan Supreme Court |
| Parties | KELSEY v. MCDONALD ET AL. |
Error to circuit court, Cheboygan county; RAMSDELL, Judge.
Charles E. Kelsey, a brother of the plaintiff, and acting in his behalf, in October, 1887, entered into an oral agreement with the defendant Patrick H. McDonald for the purchase of certain lands owned by the defendants, and situated in Presque Isle county. The purchase price was to be $9,500, to be paid at the Cheboygan Bank when the defendants should execute and deposit their warranty deed for the lands with one H. A. Wetmore at said bank. The deed was deposited at the bank, but the consideration named in the same was $9,000 instead of $9,500. Kelsey objected to this deed because of such variance, and also for other reasons; one being that an abstract of title was also to be furnished. To make the difference in the consideration, a bill of sale, naming $500 as its consideration, was made by the defendants to the plaintiff, and covering and conveying the "down timber" on the premises. Charles E. Kelsey claims that this bill of sale was never delivered. After the deed was made and deposited, Charles E. Kelsey paid for plaintiff $5,000 to the defendants. The plaintiff afterwards became dissatisfied with his bargain, and this suit was brought in the circuit court for the county of Cheboygan to recover back the money paid, claiming the contract to be void under the statute of frauds. The circuit judge, upon the trial directed a verdict for the plaintiff, and he had judgment in the sum of $5,205. This action of the circuit judge is the only point of contention in this court.
The counsel for the defendants claim that the facts in the case take the contract out of the statute of frauds, and that the case should have been submitted to the jury upon the facts as claimed by them. It is contended that, after the deed was deposited with Wetmore, conforming with the oral agreement except as to the amount named as its consideration, the making of the bill of sale to remedy this was agreed to by Charles E. Kelsey; and also that said Kelsey took the deed away from Wetmore, where it was deposited, and, with full knowledge of this variance in the recital of the consideration, paid $5,000 upon the contract, and agreed to pay the balance of the purchase price as soon as an abstract of the land was furnished by the defendants. That defendants afterwards furnished the abstract which showed a clear and perfect title in the defendants. That Charles E Kelsey never returned the deed to Wetmore, but left it with Mr. Perkins, in the office of Humphrey & Perkins, attorneys at law, at Cheboygan. That this was a virtual acceptance of the deed, and the title thereby passed. It is urged that if these facts had been submitted to and found by the jury it would have justified a verdict for the defendants. It is also claimed that Kelsey bought camp supplies, and took possession of the lumber camps which had been used by the defendants the previous winter in lumbering upon a portion of the lands. He, Charles E. Kelsey, had men at work at these camps for eight or ten days getting ready to lumber the lands. A survey of the lands afterwards showed these camps to be on other lands, and not on those sold or contracted to plaintiff, but defendants' counsel claim that this was a disputed question as to the location of these camps, which should have been submitted to the jury; and that there is no doubt but Kelsey intended to take possession of these lands under the deed when he took possession of the camps. They also contend that the defendants complied with their part of the contract by executing a deed of the premises, depositing it, together with the deeds to them from their grantors, James and Phelps, with Mr. Wetmore, as they had agreed to do; and that this deed itself was such a written memorandum, subscribed by the parties by whom the sale was made, as would take it out of the statute of frauds. We do not think the oral agreement was taken out of the statute by any act or acts of the parties.
In the first place, it is conceded that the deed, as executed and delivered, did not embody the terms of the oral contract, in so much as it did not properly recite the price to be paid for the land. This, of itself, would be a sufficient answer to the claim that the execution of the deed and its delivery to Wetmore was a sufficient written memorandum to avoid the statute of frauds, if we were to admit that the execution and delivery of a deed correctly embodying the oral agreement would be sufficient to take it out of the statute, which we are not prepared to do. Secondly. No abstract was delivered with the deed to Wetmore, which plaintiff claims was a part of the parol contract. Thirdl...
To continue reading
Request your trial