Wright v. Dickinson

• Decision Date: 10 November 1887
• Court: Michigan Supreme Court
• Parties: WRIGHT v. DICKINSON and another.

35 N.W. 164

67 Mich. 580

WRIGHT v. DICKINSON and another.

Supreme Court of Michigan

November 10, 1887

Appeal from circuit court, Allegan county.

This was an action in assumpsit to recover money paid under a contract for the purchase of land which defendants had agreed to convey to the plaintiff in fee-simple. Plaintiff had entered into possession and cut timber, and leased a part of the land, and had been subsequently restrained from using the lands by injunction, defendant not having title to convey. The plaintiff's bill of particulars is set out in the opinion.

E. Bacon, for plaintiff and appellant.

As defendants had no title, it was not necessary for the plaintiff to tender the purchase money and demand a deed. Plaintiff had a right to regard the contract as rescinded when he found out that defendants had no title. Benson v Cowell, 52 Iowa, 137, 2 N.W. 1035; Pratt v Philbrook, 41 Me. 132; Miller v. Phillips, 31 Pa.St. 218; Atkinson v. Scott, 36 Mich. 18.

Howard & Roos, for defendants and appellees.

Plaintiff should not show any cause other than that contained in his bill of particulars. 1 Green, Pr. 512; Waterman v Waterman, 34 Mich. 490. Plaintiff cannot rescind without placing defendants in statu quo. Cilley v. Burkholder, 41 Mich. 749, 3 N.W. 221. Plaintiff cannot maintain this action; his only remedy is an action for damages or a bill in equity. Axtel v. Chase, 77 Ind. 74; Gwynne v. Ramsey, 92 Ind. 414; Hendricks v. Goodrich, 15 Wis. 679; Long v. Saunders, 88 Ill. 147; McCrillis v. Carlton, 37 Vt. 139.

CHAMPLIN J.

Plaintiff declared against the defendants upon the common counts of assumpsit, and filed therewith a bill of particulars as follows:

"SIRS: Please to take notice that the following is a bill of particulars of the plaintiff's demand in this cause, and for the recovery of which this action is brought, to-wit: The plaintiff's bill of particulars is for moneys paid on a certain land contract made by Chase H. Dickinson and William F. Dickinson and the plaintiff above named, of which Exhibit B hereto annexed is a true copy; and plaintiff's claim is that the land described in said contract was not, at the date of said contract, owned by said William F. Dickinson and Chase H. Dickinson, defendants above named, nor have they since owned said real estate in fee, and have never been the owners of said real estate, so that they could convey to said plaintiff a good and unincumbered title in fee-simple; and said plaintiff claims that the moneys were so paid by him on such land contract without any consideration. The amounts and dates of such payments are as follows:

1872.

July 20. To cash paid by plaintiff to defendants, . $100

Sept. 20. To cash paid by plaintiff to defendants, .. 400

----

$500

"The plaintiff's bill of particulars is further for moneys paid on certain other land contract made by said Chase H. Dickinson and William F. Dickinson and the said John A. Wright, of which Exhibit A hereto annexed is a true copy. And plaintiff claims that the said William F. Dickinson and Chase H. Dickinson never were the owners of the land described in this contract, so that they could give to the said plaintiff a title in fee-simple. The amounts and dates of such payments are as follows:

1872.

July 20. To cash paid said defendants, .. $ 100

Sept. 18. To cash paid said defendants, .. 1,400

Nov. 8. To cash paid said defendants, .... 100

------

$1,600

"Dated December 18, 1880."

Exhibits A and B referred to in the bill of particulars are two land contracts, being the same contracts passed upon by this court in the case of Dickinson v. Wright, 56 Mich. 42, 22 N.W. 312.

The defendants pleaded the general issue. On the trial of the cause before a jury the land contract, Exhibit A, was introduced in evidence. It was signed by Chase H. Dickinson, and said Chase H. Dickinson signed the name of William F. Dickinson. Attention of plaintiff, who was a witness in his own behalf, was called to the words: "This contract approved. WILLIAM F. DICKINSON,"--indorsed on the contract, and he stated that he did not know anything about the indorsement; that it was not there when it was made. The witness' attention was called to a like indorsement on Exhibit B, and he was asked: "Do you know at any time of any indorsement of these words, 'Contract approved,' and signed 'William F. Dickinson,' on the back thereof?" To which he answered: "No, sir." The question was then again repeated as to the indorsement upon Exhibit A, to which the defendant objected, on the ground that it was irrelevant and immaterial under the issue in this case, and under the bill of particulars as furnished in this case; that the plaintiff had declared and furnished a bill of particulars, declaring upon the contract as a valid one, and he was bound by his bill of particulars. Counsel for plaintiff disclaimed having declared upon the contract, or seeking to recover for a breach of it. He stated that he sought to recover back money paid to defendants under the count for money had and received, because the contract was void under the statute of frauds, and because there was no consideration, as the defendants had no title which they could convey. But the court held that the plaintiff was confined to the declaration as he had made it, and that there was no notice given that plaintiff sought to recover because his contract was not a binding contract; but, on the contrary, the only inference from the bill of particulars was that it was a valid contract, and that the trouble was that he had no title to convey; that under the declaration and bill of particulars he did not think it was competent that this contract was void for want of due execution, and sustained the objection. We think the court erred. The declaration was for money had and received.

The bill of particulars pointed out that the plaintiff sought to recover back money paid without consideration. Whether the want of consideration arose from the fact that the defendants had no title to convey, or whether the contract was void for want of due execution, was not material to be stated, only so far as such statement was proper to apprise the defendants of the claim of plaintiff, and afford them an opportunity to be prepared to try the case upon the merits. Defendants did not claim that this evidence would be a surprise to them or that they were not prepared to meet such evidence upon the trial. A bill of particulars, in practice, is considered in some respects as an amplification of the declaration, but it is considered sufficient if it fairly apprise the opposite party of the nature of the claim, so that there can be no surprise. Brown v. Williams, 4 Wend. 360. In Davies v. Edwards, 3 Maule & S. 380, the action was for debt upon a demise of land, and the plaintiff furnished a bill of particulars describing the premises as being in a certain parish, and on the trial introduced an indenture of demise between the parties of lands in another parish. It was insisted that by reason of this misdescription in the bill of particulars the plaintiff could not recover. The trial judge overruled the objection, being of the opinion that the bill of particulars disclosed substantially the subject-matter of the action, which was rent; and it not appearing that the defendant was misled by it, a verdict was entered for the plaintiff. On a rule nisi obtained, Lord ELLENBOROUGH, C.J., said: "If the defendant could have shown, not only that he might have been, but that he was actually surprised, there would have been some foundation for the agreement," and he discharged the rule. So, in this case, the subject-matter is the money which the defendants have had of the plaintiff, the consideration for which has failed. Here it seems to me that the plaintiff has been shut out by a strict construction, and concluded by a particular, fairly meant, against the justice of his case. See, also, Duncan v. Hill, 2 Brod. & B. 682; McNair v. Gilbert, 3 Wend. 344.

In Davis v. Treeman, 10 Mich. 188, this court said: "The office of the bill of particulars is to inform the opposite party of the cause or causes of action the party giving it intends to rely on on the trial, not specifically set out in the declaration, or notice accompanying the general issue." And in Freehling v. Ketchum, 39 Mich. 299, it was said: "The purpose of the rules allowing bills of particulars to be demanded is to enable defendants to avoid surprise, and not enable them to make vexatious requirements." In Cicotte v. Wayne Co., 44 Mich. 173, 6 N.W. 236, Mr. Justice GRAVES said: "The object of the practice for the production of bills of particulars is to obviate the uncertainty of general pleading. The intent is to secure such information as will enable the parties to make an intelligent preparation for trial, and to enter upon the investigation before the court or jury with an understanding as to what is really in controversy. The bill is often mentioned as being an amplification of the declaration, or as entitled to be considered as a part of the pleading. But such expressions are metaphorical. The bill is never in strictness a component of the pleading. It may have the effect of a pleading in so far as it restricts the proofs to what it contains." This case is cited by plaintiff's counsel to support the ruling of the court below. The statement of the learned judge is accurate, but the question to be determined is, what proofs are admissible under the contents of the bill, and is the variance, if any, harmful to the opposite party in that it operates as a surprise to him? Collins v. Beecher, 45 Mich. 436, 8 N.W. 97.

The plaintiff then testified to the money paid to the defendants upon the contracts, and that the lands were mostly timbered...