Russell v. Schurmeier

• Decision Date: 01 January 1863
• Citation: 9 Minn. 16
• Parties: HENRY RUSSELL vs. C. H. SCHURMEIER.
• Court: Minnesota Supreme Court

9 Minn. 16

HENRY RUSSELL vs. C. H. SCHURMEIER.

Supreme Court of Minnesota.

Appeal from judgment of the district court, Ramsey County.

Points and authorities for appellant: —

1. The parol testimony objected to by appellant's counsel should have been rejected as not competent to establish a contract relative to real estate.

2. The allowing of the plaintiff to amend his complaint after he had rested, and after defendant's counsel had summed up to the jury, such amendment materially changing the complaint and not conforming it to any fact proved, was unauthorized by statute or the course of practice, and was an abuse of legal discretion. Comp. Stat. 543-4, § 86, et seq.

3. The court erred in refusing the instructions to the jury, asked by defendant, and also in instructions given.

4. Neither the contract set up in the original nor amended complaint is a void parol contract according to our statute. Comp. Stat. 457, § 8.

Points and authorities for respondent: —

1. The allowing plaintiff to amend complaint (on a mere technical point) was matter of discretion. Comp. Stat. 544, top; 4 Minn. [119]; 1 Greenl. Ev. § 284; "delivery," etc. 6 N. Y. 147, 161; 16 N. Y. 336; 2 Conn. 324; 29 Barb. 383. Moreover, it is not enough to plead an estoppel. It is odious. 5 Barb. 364. And if the party fails to object to the parol evidence in conflict with it, when it is offered, and on that ground, he will be considered to have waived it, and taken issue before the jury on the fact. Our parol evidence was all let in without any objection to it on that ground. 6 Minn. [160]; 3 Minn. [311]; 10 Me. 350; 5 Me. 96; 1 Greenl. Ev. §§ 421, 531; Chit. Pl. [238], [540], [617].

2. In his request defendant asked the court to charge the jury (in substance), that they were bound by the estoppel (we now disregard the point that they were collaterals, merely for argument), but then it was too late, as a jury is not bound by any estoppel after conflicting evidence is before them, except in the case of a judgment for public reasons, and formerly not in such cases. 1 Greenl. Ev. § 531. Here the request was well refused — the others were given. But the exception to the charge was too broad to call the attention to any point of error, so that the judge could change or modify it on trial. He should and must have such an exception or none. Comp. Stat. 564, §§ 55, 56; 7 N. Y. 266.

3. Finally, the four verbal contracts were voidable, if not void, (5 Minn. [247], [253]) and as soon as defendant was in default the vendees could treat it as abandoned and sue for their money — the mere payment of money on taxes will not help it. Story Eq. Jur. 760, 761. And no act will take a case out of the statute, except on behalf and at request of the party who does or suffers by it. The man who does nothing is not defrauded.

Lorenzo Allis, for appellant.

Brisbin & Warner, for respondent.

ATWATER, J.

This was an action brought by respondent to recover money paid on a parol contract to purchase lands. The complaint alleges that the plaintiff, with three other persons, entered into a contract with defendant for the purchase of fifty-two acres of land, at sixty-five dollars an acre; that the defendant was to have the land surveyed and sub-divided into four parcels of thirteen acres each; and that the defendant was to give to each of the parties a separate bond, for conveyance of the premises, upon payment of the several notes of the parties, to be executed for the purchase money, the notes to become due in one, two, three and four years from the 15th day of November, 1856; that when the parties met to execute the agreement, the defendant had ready four joint notes for the parties to sign, and a bond for conveyance to them jointly; that the plaintiff and his associates refused to sign such notes or accept such bond, as not being in conformity with the agreement; that the defendant then solicited the plaintiff and his associates not to throw up said contract of purchase altogether, but to execute and deliver said notes, and receive said instrument as security merely for a few days, until he could survey said lot — to which the parties assented, and executed the notes and received the bond as security, pursuant to said understanding. The complaint alleges offer of performance on the part of the plaintiff and his associates, and default on the part of defendant in making survey and execution of the several bonds. The parties paid defendant some six hundred dollars of the purchase money, which was indorsed upon the notes. The plaintiff, before the commencement of the action, had taken an assignment of the interest of two of his associates. The answer denied the parol agreement set up in the complaint, and alleged the contract of purchase was, that the parties should give their joint notes and accept jointly the bond of defendant to convey the fifty-two acres, as evidenced by the notes and bond. The cause was tried by a jury, and a verdict rendered for plaintiff.

In the view taken by the court of this action, the main point in the case is presented in the fourth request to charge made by the counsel for defendant, and the charge as actually given upon such request. The court was requested to charge the jury, that "if the jury find that there was and still is outstanding between said parties a contract or deed in writing of bargain and sale of the said real estate, subscribed by said Schurmeier, whereby the said Schurmeier has bargained and sold said real estate to said parties, then said verbal contract between the same parties, respecting the same real estate, is without effect; the said deed in writing must prevail, and the remedy of the plaintiff, if any he is entitled to, must be sought on said contract or deed in writing. This action, in such case, cannot be maintained, and the jury must find for the defendant herein. The existence of such outstanding contract or deed in writing is admitted by the pleadings." With reference to this request the court charged, "that if the jury should find that in fact two...