Michigan Home Colony Co. v. Tabor

Decision Date17 November 1905
Docket Number2,174.
Citation141 F. 332
PartiesMICHIGAN HOME COLONY CO. v. TABOR.
CourtU.S. Court of Appeals — Eighth Circuit

A Kanneberg and F. M. Fort, for plaintiff in error.

William Graham, B. F. Thomas, and Charles M. Thomas, for defendant in error.

The Michigan Home Colony Company, the plaintiff in error, brought this suit in the Circuit Court of the Eastern Division of the Northern District of Iowa against George W. Tabor, the defendant in error, to recover the agreed price of a tract of land situated in the state of Michigan, which plaintiff avers the defendant agreed to purchase from it. The defense was that the obligation to pay the purchase price depended upon plaintiff giving to defendant a good and sufficient deed conveying title to him in fee simple, free and clear of all legal liens and incumbrances, and that plaintiff did not have such title and could not and did not tender a deed of such title to him. The defendant, with his answer, filed a cross-petition to recover from plaintiff the sum of $400 paid to it as part of the purchase price by him at the time the preliminary agreement to purchase was made. The case was tried to a jury, and at the conclusion of all the evidence plaintiff moved the court to direct a verdict in its favor for the balance of the purchase price due, and defendant moved the court to direct a verdict in his favor for $400 the amount paid in advance for the land. The court overruled plaintiff's motion, sustained defendant's motion, and directed a verdict in favor of the defendant. A judgment was rendered accordingly. To reverse this judgment a writ of error was sued out of this court.

Before VAN DEVANTER, HOOK, and ADAMS, Circuit Judges.

ADAMS Circuit Judge, after stating the case as above, .

There are 78 assignments of error in this case, but, in our opinion, very few questions presented on the record for consideration. The practice of filing such a large number of assignments cannot be approved. It thwarts the purpose sought to be subserved by the rule requiring any assignments. It points to nothing. It leaves opposing counsel and the court as much in the dark concerning what is relied on for error as if no assignments were filed.

Mr Justice Miller, in Phillips, etc., Const. Co. v Seymour, 91 U.S. 646, 648, 23 L.Ed. 341, says:

'The object of the rule requiring an assignment of errors is to enable the court and opposing counsel to see on what points the plaintiff's counsel intend to ask a reversal of the judgment, and to limit the discussion to those points. This practice of unlimited assignments is a perversion of the rule, defeating all its purposes, bewildering the counsel of the other side, and leaving the court to gather from a brief, often as prolix as the assignments of error, which of the latter are really relied on. We can only try to respond to such points made by counsel as seem to be material to the judgment which we must render.'

Following the practice suggested in that case, we shall endeavor to consider the questions which, in our opinion, must control the judgment in this case.

From the argument of counsel and a general consideration of the assignment of errors and the record, we believe the case turns upon three questions: (1) Is there substantial evidence to sustain the verdict as rendered? (2) Are the covenants in the preliminary agreement relating to the payment of the purchase price and the delivery of the deed dependent or independent? (3) Was the action of the trial court in permitting defendant to amend his answer after the verdict so as to conform to the proof erroneous? The agreement for the sale and purchase of the land in question was made and signed by the parties on July 10, 1902. It obligated defendant to pay $8 per acre for the tract of land described in the agreement, $400 at the date of the agreement, and the balance on March 1, 1903. The agreement then proceeds as follows:

'Second. The said party of the first part hereby agrees and binds itself, its successors and assigns, that in case the aforesaid sum of eight dollars ($8.00) per acre with interest, shall be fully paid, at the times and in the manner above specified, it will on demand, thereafter cause to be executed and delivered to the said party of the second part, or its heirs or legal representatives, a good and sufficient deed, in fee simple, of the premises above described, free and clear of all legal liens and encumbrances, except the taxes herein agreed to be paid by the party of the second part.'

There is evidence tending to show that plaintiff and defendant, subsequent to the making of preliminary agreement to sell, orally agreed to consummate it by the payment of the balance of the purchase money and delivery of the deed at the city of Maquoketa, Iowa, instead of Milwaukee, as specified in the written agreement, and that plaintiff should furnish to defendant an abstract showing good title to the land, and that pursuant to this agreement the president of plaintiff corporation and the defendant met at Maquoketa on March 1, 1903; the president having with him a deed to the land and an abstract which he exhibited to the defendant as evidence of good title in plaintiff, and the defendant having with him the balance of the purchase money ready to pay over to plaintiff's president on receipt of the deed.

The rule is firmly established that when each party to a cause on trial before a jury requests a peremptory instruction in his favor, he thereby consents that the court shall find the facts on the issues joined. The law impresses upon the finding so made all the incidents of a general finding by the court in a case submitted to it after waiver of a jury by the parties. In such case the appellate court does not consider the weight of evidence. The only questions for review, besides the sufficiency of the pleadings to support the judgment, are whether there is any substantial evidence to support the finding and whether there was reversible error committed in the admission or rejection of evidence. Beuttell v. Magone, 157 U.S. 154, 157, 15 Sup.Ct. 566, 39 L.Ed. 654; Lehnen v. Dickson, 148 U.S. 71, 13 Sup.Ct. 481, 37 L.Ed. 373;

Phenix Ins. Co. v. Kerr, 129 F. 723, 64 C.C.A. 251, 66 L.R.A. 569, and cases cited.

Application of this rule to the present case dispenses with any critical consideration of the weight of evidence. All we are required to do, and all which, with due regard to orderly procedure, we ought to do, is to ascertain whether there is any substantial evidence to sustain the issue joined in the pleadings and found by the verdict that plaintiff did not on March 1, 1903, have or tender to defendant a deed conveying a good and sufficient title to the land in question.

In reaching a conclusion on this issue, we have not regarded the failure to furnish an abstract showing good title as in itself, a breach of the contract of sale. The agreement to furnish the abstract was made orally some time after the written contract of sale was entered into. It was, therefore, within the statute of frauds, section 9511, Comp. Laws Mich. and possibly without consideration to support it as an enforcible agreement.

An obligation was imposed upon the plaintiff by the contract to execute and deliver to the defendant a good and sufficient deed, conveying a clear and unincumbered title in fee simple to him. In recognition of this obligation plaintiff undertook to show defendant its title, and for this purpose the abstract referred to was employed and exhibited to defendant and his counsel. Its statements are at least admissions by plaintiff touching the condition of its title, and as such was available to the defendant. There is much evidence in the record as to what the abstract disclosed, and whether what was disclosed constitutes a defect in title or an incumbrance upon the land. The evidence of witnesses and the argument of counsel present different views of this question; one that the abstract disclosed, and the other that it did not disclose, defects. Moreover, there is evidence of direct and positive admissions made by plaintiff's president on March 1, 1903, at the time and place fixed for the delivery of the deed and the payment of the purchase money, and while he was engaged in behalf of his company in performing the contract of sale in question, that he knew the title was defective and that he requested defendant to give him additional 60 or 90 days within which to clear up the title. The request, it appears, was not acceded to by defendant. The defendant was there ready and willing to close the trade and pay for the land according to the agreement if plaintiff could convey a good title. In this condition of things plaintiff's president on March 1, 1903, tendered a deed to the defendant which the defendant refused to take or pay for. From the foregoing general resume of the proof we satisfactorily reach the conclusion that the finding that plaintiff's title was not good, necessarily involved in the...

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    ... ... Gallaher, 124 U.S. 505, 8 ... Sup.Ct. 585, 31 L.Ed. 526; Michigan Home Colony Co. v ... Tabor, 141 F. 332, 72 C.C.A. 480; and the many ... ...
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