Raub v. Smith

• Court: Michigan Supreme Court
• Writing for the Court: [61 Mich. 545] SHERWOOD, J.
• Citation: Raub v. Smith, 61 Mich. 543, 28 N.W. 676 (Mich. 1886)
• Decision Date: 10 June 1886
• Parties: RAUB v. SMITH.

28 N.W. 676

61 Mich. 543

RAUB v. SMITH.

Supreme Court of Michigan

June 10, 1886

Error to Mecosta.

M. Brown, for plaintiff.

Charles A. Withey, for defendants and appellants.

SHERWOOD, J.

This is an action of assumpsit, brought by the plaintiff against the defendants, to recover damages for the non-performance of an alleged contract to enter into a copartnership with the plaintiff. The facts, as the plaintiff states them in his declaration, are substantially as follows: On the ninth day of February, 1880, the plaintiff had booked over 280 acres of pine land, and ascertained that there was 6,000,000 feet of pine timber thereon then growing, which was very valuable and had the descriptions of the land, which were situated in the county of Lake; that said lands were owned by the Grand Rapids & Indiana Railroad Company, and were for sale at $15 per acre; that plaintiff then knew the location of the lands and the defendants did not; that plaintiff had a steam saw-mill, which he used to cut timber for other people; that at the same time the defendants owned in the said county of Lake a quantity of pine timber, consisting of about 1,200,000 feet, which they wished to have manufactured into lumber; and that they desired to contract with plaintiff to manufacture their timber into lumber, and then and there entered into an agreement with the said plaintiff, in substance, as follows The plaintiff to show the defendants the lands he had selected, containing the 6,000,000 feet of pine timber, and manufacture for the defendants into lumber the 1,200,000 feet of pine timber they owned, at $2.50 per thousand, as soon as he could reasonably do so; and if the lands containing the 6,000,000 feet of pine timber were as valuable as the plaintiff had represented them to the defendants, then it was agreed that the plaintiff and defendants should form a copartnership, and that the defendants should purchase the lands shown to them by the plaintiff, of the Grand Rapids & Indiana Railroad Company the owner thereof, and should advance the purchase price, ($15 per acre,) and have the same conveyed to the plaintiff and defendants, so that the plaintiff should own one-third and the defendants two-thirds thereof; said plaintiff to pay to defendants for his share by manufacturing the timber upon said lands to be purchased, into lumber; the lumber to be sold, and the plaintiff to have one, third of the profits, and the defendants have two-thirds, and the losses, if any, were to be borne in the same proportion. The declaration then avers that each of said parties verbally agreed to perform their several agreements so made with each other; that the plaintiff has always fulfilled his part of said contract, and has manufactured the pine timber into lumber standing on the defendants' land, for the said $2.50 per thousand, as soon as he could reasonably do so after making the agreement; and showed the other lands to the defendants; and that they were as valuable as he represented them to be to the defendants; and has always been ready to do the sawing of the timber grown upon said lands as he had promised; but that the defendants refused to go into partnership with the plaintiff, or to purchase the lands upon which the 6,000,000 feet of pine timber stood, and have the same conveyed to the plaintiff, so that he would have and own an undivided one-third thereof; but purchased the lands, and took the title to themselves, and afterwards sold the same for $8,000, and refused to allow him to share in the profits thereof; that the profits which would have accrued from the manufacture and sale of the timber would have been over $20,000, under the agreement thus made. The defendants' plea was the general issue, with notice of set-off. The cause was tried in the Mecosta circuit, before a jury, and the plaintiff was allowed to recover a judgment for the sum of $5,000 damages. Defendants bring error.

The defendant's contest in this case is principally upon two points: He claims that the contract relied upon by the plaintiff, and for the breach of which he must recover, if at all, being a verbal one, is within the statute of frauds; that the foundation of the plaintiff's claim is for the sale of an interest in lands, and that the contract therefor, not being in writing, is void. His second point is that the rule of damages laid down by the court is incorrect, and not applicable to the facts in the case. Of course, if either of these points is well taken, the judgment must be reversed.

The language of the statute relied upon is as follows: "Every contract for the leasing, for a longer period than one year, or for the sale of any lands, or any interest in lands, shall be void, unless the contract, or some note or memorandum thereof, be in writing, and signed by the party by whom the lease or sale is to be made, or by some person thereunto by him lawfully authorized by writing." How.St. � 6181. This statute has frequently been before this court for construction, and it has been held that a contract which is void under the statute of frauds cannot be used for any purpose. Chamberlain v. Dow, 10 Mich. 319; Hall v. Soule, 11 Mich. 494; Holland v. Hoyt, 14 Mich. 238; Grimes v. Van Vechten, 20 Mich. 410; Scott v. Bush, 26 Mich. 421; Detroit, H. & I.R. Co. v. Forbes, 30 Mich. 176; Hillebrands v. Niblink, 40 Mich. 646; Sutton v. Rowley, 44 Mich. 112; S.C. 6 N.W. 216. Such a contract is regarded as a nullity.

It has been also held that not only is a verbal...