McCreery v. Green

• Decision Date: 22 January 1878
• Citation: 38 Mich. 172
• Court: Michigan Supreme Court
• Parties: William B. McCreery and Alexander McFarlan v. George S. Green

38 Mich. 172

William B. McCreery and Alexander McFarlan v. George S. Green

Supreme Court of Michigan

January 22, 1878

Submitted October 19, 1877

Error to Bay.

Assumpsit. Defendants bring error.

Judgment affirmed with costs.

Holmes Collins & Stoddard for plaintiffs in error. A witness must rely on his memory and not read from a written statement made long after the event, Russell v. H. R. R. R., 17 N. Y 134; Meacham v. Pell, 51 Barb. 65; Wilde v. Hexter, 50 Barb. 449; C. & W. Coal Co. v. Liddell, 69 Ill. 639; Lawrence v. Barker, 5 Wend. 301; Feeter v. Heath, 11 Wend. 479. Speculative profits cannot be a measure of damages, Lattin v. Davis, Lalor's Supp., 9; Blanchard v. Ely, 21 Wend. 342; Wilson v. Martin, 1 Den. 602; Spencer v. Halstead, id., 606; Giles v. O'Toole, 4 Barb. 261; Lawrence v. Wardwell, 6 Barb. 423; Hamilton v. McPherson, 28 N. Y., 72; Olmstead v. Burke, 25 Ill. 86; Horner v. Wood, 16 Barb. 386; Hiner v. Richter, 51 Ill. 299; Washburn v. Hubbard, 6 Lans. 11; Rogers v. Beard, 36 Barb. 31; Brown v. Foster, 51 Penn. St., 165; Field on Damages, pp. 334-8. Nominal damages only are recoverable for a failure to convey lands under a contract where there is no bad faith, Sawyer v. Warren, 36 Ia. 333; Mack v. Patchin, 29 How. Pr., 20; Margraf v. Muir, 57 N. Y., 155; Shannon v. Comstock, 21 Wend. 456; Baldwin v. Munn, 2 Wend. 399; Peters v. McKeon, 4 Den. 546; Field on Damages, pp. 58, 61 and 402-3. If any thing has been paid, the amount of the consideration and not the value of the land measures the damages, Hertzog v. Hertzog, 34 Penn. St., 418; McNair v. Compton, 35 id. 23. Interest is not allowable on an uncertain demand or an unliquidated claim for services, Selleck v. French, 1 Am. Lead. Cas., 500-503; Reid v. Renss. Glass Factory, 3 Cow. 393; Van Beuren v. Van Gaasbeck, 4 Cow. 496; Holmes v. Rankin, 17 Barb. 454; Gallup v. Perue, 10 Hun 526; Begole v. McKenzie, 26 Mich. 470; nor unless it is claimed in the declaration, Palmer v. Stockwell, 9 Gray 237.

McDonell & Mann and Hatch & Cooley for defendant in error. Loss of profits is an injury sustained and must be compensated in damages, Burrell v. N. Y. & S. Salt Co., 14 Mich. 39. An agent earns his commission on a sale if he only introduces the purchaser to the vendor and the sale follows, Knapp v. Wallace, 41 N. Y., 477; Stillman v. Mitchell, 2 Robert. 523; Ludlow v. Carman, 2 Hilton 107; Vreeland v. Vetterlein, 33 N. J., 247; Schwartze v. Yearly, 31 Md. 270; Lincoln v. McClatchie, 36 Conn. 136; Cook v. Fiske, 12 Gray 491. A witness can read from any paper that he knows is correct to refresh his recollection, Pinney v. Andrus, 41 Vt. 631; Dunlap v. Berry, 5 Ill. 330. A witness' inference from a remark is not responsive to a question as to what was said, Hamilton v. People, 29 Mich. 185.

Graves, J. Campbell, C. J., and Cooley, J., concurred. Marston, J., did not sit in this case.

OPINION

Graves, J.

May 3d, 1873, these parties agreed in writing as follows:

"The said Green for and in consideration of the promises on the part of the said McFarlan and McCreery hereinafter contained hereby agrees to start for the woods in the district of Bayfield, Wisconsin, and select and secure the entry at the U.S. land office or at the land office of the State of Wisconsin all the choice pine timbered lands he may be able to find subject to entry, not to exceed the amount of ten thousand acres (or more if the said McFarlan and McCreery so determine), which he may be able to find before the first day of December next; the said Green to serve no other interest in looking lands up to said date. Said lands so selected and located to cut at the rate of one hundred and fifty thousand feet to each forty acre lot of U.S. lands located within what is known as the ten-mile railroad limits, and one hundred thousand feet and upwards to each forty acres of ten shilling lands; all of said lands to be within five miles of a navigable stream, but a portion of said lands where the pine timber is of excellent quality, and estimated to cut three hundred thousand feet and upwards to the forty-acre lot, may be located at a distance of not exceeding eight miles from a navigable stream.

The said McFarlan and McCreery agree to furnish the money with which to locate; said lands to be examined and selected by said Green as soon as the descriptions are from time to time obtained; said lands to be located in the names of said McFarlan and McCreery, the said Green being authorized to draw his draft on demand on the said McFarlan and McCreery for all said lands so located as aforesaid.

The said McFarlan and McCreery also agree to advance to said Green, from time to time, as he may require, the money necessary to defray his expenses in looking up said lands, which advance for looking up said lands is to be returned to said McFarlan and McCreery with interest at ten per cent. per annum, as soon as said lands or any portion of them may be sold, or sooner if the said Green may desire, and whenever said money so advanced, together with interest as aforesaid, is repaid to the said McFarlan and McCreery, they are to convey to said Green by good and sufficient warranty deed an undivided one-fifth of all of said lands so located by him in their said names; but in case the lands are not deeded to said Green until after the same become taxable, and in the event also that the said McFarlan and McCreery pay the taxes assessed against said land, then the said Green is to pay them the undivided one-fifth part of all taxes so paid with interest at ten per cent. per annum the same as provided for other advances made."

Soon after this contract Green went to Bayfield and proceeded to select lands and plaintiffs in error provided funds. These were not always kept ready and there were some short intervals of delay. By the last of September Green had selected and noted about 6,473 96-100 acres, of which all but about 3,000 had been paid for and duly entered. Funds had been supplied by drafts, but were exhausted, and hence the means were not at hand to pay for this last body. All the lands selected were those of the United States, and the price was $ 2.50 per acre. Green made a demand draft on plaintiffs in error for a little less than $ 6,000. Meanwhile the memorable money panic of that year sprang up and swept over the country. It caught this enterprise and the two projectors bound to furnish capital. They immediately wrote Green that they could not obtain funds to locate any more lands and could not meet drafts for more than his personal expenses, and that he was at liberty to locate for others. The business stopped. The draft went to protest and Green returned. This was in the fall of 1873. From time to time until May following the parties negotiated and exchanged views concerning their adventure, and at that time Green went again to Bayfield supplied by plaintiffs in error with $ 6,000 to be applied as far as it would reach in paying for lands so selected and not paid for the year before. This money was so applied and it was the last provided for taking lands under the contract. The quantity which had been bought was 5,473 96-100 acres, leaving unobtained of the 10,000 acres specified some 4,526 acres and a fraction, and of which one-fifth, or Green's share, was 905 acres.

In June, 1875, the 5,473 acres and a fraction were sold and conveyed by the concurrence of all the parties to a gentleman in Ontario for $ 4.50 per acre, $ 6,000 being paid down and the balance being secured by mortgage. The advances for expenses and taxes with the interest were settled and Green's share in the lands sold was arranged as he desired. He subsequently advanced claims on the foot of his transactions with plaintiffs in error which they refused to recognize, and after some ineffectual efforts to agree upon terms, this suit was brought. He set up two demands. By the first he claimed the full market value which one-fifth of the unobtained balance of 10,000 acres would have borne if such balance had been acquired. By the second he maintained that it was agreed between him and the plaintiffs in error that in case he made a sale of the purchased land they would give him five per cent. commissions on the sale price of their four-fifths, and that the sale which occurred was made by him in the sense of this arrangement, and hence that he was entitled to the specified commissions.

The plaintiffs in error claimed and insisted that when they treated with Green in May, 1874, and provided $ 6,000 to be consumed in paying for lands he had previously selected, it was distinctly understood and agreed that no demand should be made against them on account of their previous failure to supply funds, and that no further demand should be urged against them for funds to enter the residue of the 10,000 acres. They contended that the $ 6,000 was supplied upon the faith and only upon the faith of such understanding. They also positively denied making any agreement to pay commissions to Green for bringing about a sale of the common property. The verbal testimony was confined to the parties, and on the points here mentioned they were directly opposed.

There was also wide difference of opinion as to the measure of the damages proper to be allowed for the breach of contract in not providing funds to get the balance of the 10,000 acres in case that ground of action should not be found to have been adjusted.

The defendant in error contended he was entitled to the full value of the one-fifth of the unobtained residuum; and which value as he urged was at least, as shown by the sale of the quantity secured under the contract, $ 4.50 per acre, less the expense of selecting and nothing what had not been already selected and noted. On the other hand the...