Leslie v. Smith

• Decision Date: 30 April 1875
• Citation: 32 Mich. 64
• Court: Michigan Supreme Court
• Parties: Harrison Leslie v. Albert N. Smith

32 Mich. 64

Harrison Leslie v. Albert N. Smith

Supreme Court of Michigan

April 30, 1875

Heard April 21, 1875

Error to Barry Circuit.

Judgment reversed, with costs, and a new trial granted.

Sweezey & Wood and Isaac M. Crane, for plaintiff in error.

Charles G. Holbrook and Harvey Wright, for defendant in error.

OPINION

Campbell, J:

Smith sued Leslie and recovered for the value of labor and services connected with the improvement and care of certain lands. The declaration contained the common counts and also a special count. But as the court held there could be no recovery on the special count, and as it varied materially from the contract sworn to by plaintiff below, it need not be considered. The questions before us all arise out of the rulings of the court upon the case as submitted to the jury.

Smith swore in substance to a parol agreement made in 1855 in New York, whereby he was "to go on this one hundred and sixty acres and improve it, and he, Leslie, to have the land if he wanted it, and if he did he was to pay me for the improvements, or he could deed me sixty acres of the land which would be in full pay, and I was to act as his agent in regard to other lands." On cross examination he said "he was to pay the taxes on the southwest quarter of section twenty-five (the land in question), and have pay for the improvements after he got a start."

The other testimony related to what had been done, and to Leslie's conduct in regard to it.

It appeared from Smith's testimony that he did not enter on the land until he had lived a year on another farm, and that there was no new agreement, unless in regard to building a house, concerning which he testified that in 1868 Leslie told him he must build a better house, which he did. It appears further that this house was not begun until a year thereafter, and without any consultation or knowledge of Leslie, who, before it was finished, wrote to Smith informing him of his intention to come out and take possession of the property and make arrangements for buildings and fruit trees. This letter, which was introduced by Smith, is written in such a way as to indicate that Smith was not upon the premises in any such way as his other testimony would have made out.

The court below ruled upon questions presented by both parties, and also charged generally. In the general charge, after holding the parol contract void, the judge proceeded further to say:

"But if the arrangement claimed by plaintiff was actually made and even though it was void by statute of frauds, if it was afterwards, without objection of either party, actually executed, if the parties treated it as a valid agreement, and if plaintiff went on under it and made the improvements claimed, and that without objection on the part of defendant, but, instead thereof, under the defendant's observation and encouragement from time to time, then the plaintiff ought to recover, not upon the special agreement, but upon the quantum meruit, the reasonable value...