Liddle v. Needham

• Court: Michigan Supreme Court
• Writing for the Court: Graves, J.
• Citation: Liddle v. Needham, 39 Mich. 147 (Mich. 1878)
• Decision Date: 21 June 1878
• Parties: Gilbert Liddle, sen'r v. Samuel Needham

39 Mich. 147

Gilbert Liddle, sen'r v. Samuel Needham

Supreme Court of Michigan

June 21, 1878

Submitted June 12, 1878

Error to St. Joseph.

Assumpsit. Defendant brings error.

Judgment reversed with costs and a new trial granted.

H. H Riley for plaintiff in error. When a contract originally within the statute of frauds has been executed and nothing remains but payment of the consideration, this may be recovered notwithstanding the statute, 2 Pars. Cont. (4th ed.), 316; Brackett v. Evans, 1 Cush. 79; Preble v. Baldwin, 6 Cush. 549; Linscott v. McIntire 15 Me. 201; Thayer v. Viles, 23 Vt. 494; Thomas v. Dickinson, 14 Barb. 90: 12 N. Y., 364; Moore v Ross, 11 N. H., 555; Holland v. Hoyt, 14 Mich. 238; though it is held that a contract void under the statute of frauds cannot be used for any purpose, Scott v. Bush, 26 Mich. 419; Det., Hills. & Ind. R. R. v. Forbes, 30 Mich. 166; Chamberlain v. Dow, 10 Mich. 319; Hall v. Soule, 11 Mich. 494; Grimes v. Van Vechten, 20 Mich. 410.

Jno. B. Shipman for defendant in error.

OPINION

Graves, J.

Needham recovered in the circuit court on a claim which grew out of a transaction between the parties in relation to the proposed transfer of a piece of land by Needham to Liddle's son, and Liddle has brought error. The declaration consisted of a special count setting up an express agreement, together with the usual general counts in assumpsit.

The cause of action asserted in the special count is that in consideration that Needham promised to give to Liddle's son, subject to the taxes of 1875, a warranty deed of certain land described, he, Liddle, promised to pay said taxes and give his note to Needham for $ 300 payable in one year with interest at ten per cent.; that he, Needham, gave the deed pursuant to the promise, but Liddle refused to pay the taxes or money or give the note. It will be observed that the agreement here set up was executory on both sides and that Liddle's promise is alleged to have been made in consideration of that by Needham.

The count does not describe Liddle's promise as made upon a past or executed consideration. The averment is not that he promised to pay taxes or give his note in consideration that Needham at his request had deeded to young Liddle. But the allegation is that in consideration of Needham's promise that he would thereafter deed, he, Liddle, promised that he would thereafter give his note, etc., and the object of the count is to compel Liddle to perform this promise.

There was evidence that these parties made a verbal agreement in terms substantially as charged; that Needham subsequently and in compliance with the understanding drew up a blank note and made the deed and sent them to young Liddle; that the elder Liddle refused to pay any thing or to give the note, and claimed that he was not bound. There was also evidence tending to show that the deed had never been accepted by young Liddle as a conveyance, and that he disclaimed title under it. The evidence was conclusive that the whole transaction was bare of writing except the deed and blank note, and that Liddle made no promise in terms at any time after the verbal bargain. The question was distinctly and fairly raised whether Liddle was or was not exempt from liability upon his executory promise by operation of the Statute of Frauds. He insisted that he was exempt, but the court ruled against him. We think the point is clear. The agreement was for the purchase and sale of land, and the want of writing was fatal. Scott v....