Scott v. Bush

• Court: Michigan Supreme Court
• Writing for the Court: Christiancy, J.
• Citation: Scott v. Bush, 29 Mich. 523 (Mich. 1874)
• Decision Date: 14 July 1874
• Parties: Jesse Scott v. Jonathan T. Bush

29 Mich. 523

Jesse Scott v. Jonathan T. Bush

Supreme Court of Michigan

July 14, 1874

Heard May 12, 1874

Case made from Jackson Circuit.

Assumpsit. Defendant alleges error. Affirmed.

Judgment of the circuit court affirmed, with costs.

Johnson & Crane, for plaintiff in error.

Gibson & Wolcott, for defendant in error.

OPINION

Christiancy J.

We think this case, as now presented, was substantially decided when formerly before us, as reported in 26 Mich. 418. It appeared in that case, that the three hundred dollars put into the hands of the defendant, under the verbal agreement to purchase his farm, was to be held by defendant in case plaintiff should fail to perform by making the purchase; in other words, to be forfeited in case of such failure, or rather, in effect, to be held as stipulated damages; but if he should perform, then to apply as part of the purchase money. And we there held, that the contract to purchase being void, and this being but a part of the same contract, it was also void, created no obligation, and gave no right to retain the money.

The only additional fact which now appears, bearing upon this point, is, that by the agreement it was expressly stipulated that in case of plaintiff's failure to perform the verbal contract for the purchase of the farm, the defendant should retain the three hundred dollars as a compensation for the expenses and trouble he had been put to in consequence of such failure, which is neither more nor less than to say, that he was to retain it as his stipulated damages for the non-performance of the verbal contract; this was void, and for the breach of it there could in law be no damages, stipulated or otherwise.

In fact, we treated it before as in effect stipulated damages and held that it would have been valid as such if the agreement to purchase, of which it was a part, had been in writing, though in form the parties had expressed it rather as a forfeiture.

This new fact, therefore, in no manner alters the case.

But it is further urged, that here was a moral obligation sufficient to sustain the agreement of the plaintiff that defendant should retain the three hundred dollars. We are unable to see any moral obligation, unless it sprang from the void contract to purchase, and to recognize that as creating a moral obligation, which, in its turn, should be held a sufficient consideration to take any part of the contract out of the...