Peters v. Canfield

• Decision Date: 19 April 1889
• Court: Michigan Supreme Court
• Parties: PETERS v. CANFIELD.

42 N.W. 125

74 Mich. 498

PETERS v. CANFIELD.

Supreme Court of Michigan

April 19, 1889

Appeal from circuit court, Manistee county, in chancery; J. BYRON JUDKINS, Judge.

Bill for specific performance of an agreement for sale of land brought by Richard G. Peters against John Canfield. Both parties appeal from the decree.

A. J. Dovel, (Benton Hanchett, of counsel,) for complainant.

Ramsdell & Benedict, for defendant.

CHAMPLIN, J.

The complainant asks for a specific performance of a land contract executed by John Canfield for the sale of an undivided half of certain lands therein described to John Sweet, dated the 12th day of September, 1871, and assigned by John Sweet to Peters on the 21st day of November, 1881. The quantity of land covered by the contract is the undivided half of 2,480 acres. Previous to September, 1871, John Sweet was experienced in estimating the quantity of pine standing upon land, and had been employed by Mr. Canfield as an estimator, who had confidence in his honesty, ability, and accuracy in estimating pine lands. All the parties thus far named resided at Manistee, Mich. Canfield and Peters were lumbermen, and had been actively engaged in buying pine lands, and in manufacturing lumber. Mr. Sweet, acting for himself, had obtained plats of these and other lands belonging to the Grand Rapids & Indiana Railroad Company, which were offered for sale by that company, and had gone personally into the woods, examined and estimated the quantity of pine on such lands, and made minutes thereof for his own benefit, which were valuable to him either to sell, or as a means of making a purchase of the lands or of an interest in them. The looking of lands in this way was a business well known, and the information so obtained was valuable. Having obtained knowledge of these lands through a personal examination, he went to Canfield with his minutes, who states what transpired between them substantially as follows: In September, 1871, Sweet showed Canfield the maps of these lands, and the estimates he had made of the pine contained thereon, and wanted to sell the minutes to him, or make some arrangement whereby Canfield would enter the lands, and sell him and interest in them "or, in other words, to make a profit out of the knowledge he had acquired." After considerable conversation, the understanding was arrived at that Canfield should buy the lands, pay the money, and sell him a half interest, substantially the same as the agreement embraced in the written contract dated September 12, 1871. The agreement, however, was not closed at the first interview; Sweet saying he wanted to see his brother with regard to the value of some of those lands, and left Canfield with a promise to return in a short time, and promised, at Canfield's request, that in the mean time no one should have the benefit of the minutes, and that they should not be exhibited to any one, or his estimates. He did not return as soon as Canfield expected, and, upon inquiry for him upon the streets, was told that he had been seen in Robinson's office showing some plats. Canfield then quietly procured a tug to take him to Grand Haven, from whence he proceeded to Grand Rapids, and purchased the land for the sum of $41,520, including his charges. On his return to Manistee he informed Sweet that he had purchased the land, at which he expressed surprise, and the matter ran along until about the 13th of December, 1871, when Canfield tendered to Sweet a contract drawn up substantially as had been talked of in the first interview. He made some objection, but they came to an agreement, and it was executed as of the 12th day of September previously. The contract price which Sweet agreed to pay Canfield for the half interest was made up by taking the $41,520, and computing interest compounded at the rate of 10 per cent. per annum for three years, which amounted to $55,263.12, one-half of which was taken as the purchase price to be paid by Sweet for the undivided half of said land.

By this contract Canfield agreed to sell to Sweet the one undivided half of certain land described in a schedule thereto attached, for the sum of $27,631.56, and Sweet agreed to purchase said lands for that sum, and to pay Canfield at his office, in the city of Manistee, on the 12th day of September, 1874, and gave to Canfield his promissory note, dated September 12, 1871, payable on September 12, 1874, for that amount, without interest. Sweet further agreed to pay one-half of all taxes levied on the land from and after the date of the agreement. He further agreed that he would not cut or remove, or permit to be cut or removed, any timber or logs from the lands until full and final payment for said land, and, if this stipulation was violated, it was agreed that the logs and lumber manufactured therefrom should be and remain Canfield's property, and such violation should, at his option, operate as a forfeiture of the rights and claims of Sweet under the agreement. Upon payment of the purchase money and one-half of the taxes punctually at the time limited therefor, and strictly and literally keeping and performing all and singular the promises, agreements, and stipulations contained in said contract by Sweet to be kept and performed, Canfield agreed to convey on request of Sweet and surrender of the contract, by quitclaim deed, the undivided one-half interest of said premises. But in case Sweet, his legal representatives, heirs, or assigns, failed to make the payments punctually, and upon the strict terms, and at the time and place limited and provided, or all of his promises, agreements, and stipulations, then Canfield had the right to treat and consider the contract as abandoned and forfeited by Sweet, and he should forfeit and lose all right or claim under the contract, and be liable to Canfield in damages, and thenceforth be deemed a mere tenant at will, holding over contrary to the terms or conditions under which he held, and might be removed from said premises without notice to quit, in the manner provided by law for the removal of a tenant in such case; and it should be lawful for Canfield, after such violation or non-fulfillment of the contract, to sell and convey such lands without liability in law or equity for damages, or to refund any part of the purchase money which may have been paid. The contract then contains the following clauses, which we quote entire:

"And it is hereby expressly understood and declared that time is and shall be deemed and taken as the very essence of this contract, and that unless the same shall in all respects be complied with by the said party of the second part, at the respective time and in the manner herein limited and declared, the said party of the second part shall lose and be debarred from all rights, remedies, or actions, either at law or in equity, upon or under this contract. And the said John Sweet also promises and agrees that he will pay one-half of all the charges and expenses in the care and management of said land, and that he will without charge look after said land, sufficient to report all trespasses thereon, and that he will also show, or cause to be shown, said lands to customers who wish to purchase when requested so to do by said John Canfield, and without charge. And it is further expressly agreed, and the foregoing agreement is so qualified, that in the mean time the said John Canfield has the right to sell and dispose of any or the whole of said lands, or the timber on the same, at such price as to him seems best, it being the best price he can at the time obtain; in which case the sum aforesaid, at which an undivided one-half (1/2) of said lands can be purchased by Sweet on the twelfth day of September, A. D. 1874, shall be diminished by the amount of one-half (1/2) the net proceeds from such sale or sales, with interest at ten per cent. per annum on the same from the time of receiving said money, and if such half exceeds the purchase price aforesaid, of an undivided half of the whole, the said John Canfield agrees to pay such excess to the said John Sweet, first deducting any other dues from said Sweet. This contract is executed in duplicate, each party holding an original copy; and it is expressly agreed by the parties hereto that no assignment thereof, or of the premises above described, shall be of any validity or force whatever, unless such assignment be made on each of said duplicate originals. And no assignment or transfer of any share or interest of, or in the contract or the said premises, less than the whole, shall be recognized or admitted by said party of the first part under any circumstances, or in any event whatever. And it is further expressly agreed that any consent which may be given to the assignment of this contract, or any recognition thereof by the said party of the first part, shall not exempt the original purchaser from any of his liabilities under this contract, but the same shall thereafter continue in force as against said party of the second part, notwithstanding such assignment and consent or recognition.

"In witness whereof the said parties to this contract have hereunto subscribed their names and affixed their seals on the day and year first above written.

"JOHN CANFIELD. [Seal.]

"JOHN SWEET. [Seal.]

"Signed, sealed, and delivered in presence of E. P. CASE."

After the date of the contract, but before it was actually executed, namely, on or about the 20th day of November, 1871, Canfield sold the timber upon a portion of the lands covered by this contract to the firm of Canfield &amp Wheeler, of which firm defendant was a member; and on the day last mentioned Canfield & Wheeler entered into a contract with Michael W. Gallagher to cut and put the logs in the South Branch of the...