Abell v. Munson

18 Mich. 306 | Mich. | 1869

Campbell, J.

Munson sued Abell for not conveying certain property, according to agreement. The defence was that the agreement was obtained by fraud, and without consideration; and also that there had been no default, or none which had not been waived by subsequent agreement.

The consideration paid in advance was a note against one Philetus Howe. Abell claimed and testified that Munson represented this note to be “as good as the cash, and that the maker was perfectly responsible.” He testified further, that Munson desired him not to call upon Howe for three or four months. He further testified to calling on Howe, and being informed by him of his insolvency, and to several interviews with Munson in regard to the matter, and to a joint interview of both with Howe. Howe’s testimony showed that he was not insolvent.

It is unnecessary to refer at length to the facts on this part of the case, as the charges show sufficiently upon what footing the court left it.

'The judge charged that no recovery could be had, if the note was taken on Munson’s representations, and if those representations were untrue, whether he knew their untruth or not. He told the jury that it was for them to determine what was meant by the representations sworn to, and that Abell had a right to rescind within a reasonable time for fraud, if existing, and that he would not be prejudiced by any delay in rescinding caused by the fault of Munson. What was reasonable time, he left to the jury under the circumstances, there being directly contradictory testimony upon all these points.

The rulings of the court in these matters were quite as liberal as Abell could ask. They were some of them based on assumptions which contradicted the written agreement, and which were not admissible. We think there was no error in this part of the case against the rights of Abell.

We think, also, that all the difficulties urged concerning the contract itself, and its breach, arise from the court below allowing a more liberal treatment to plaintiff in error than he was legally entitled to. When the contract is viewed in its true legal aspect, the objections all become incompetent.

The agreement is in writing, dated June 10, 1867, reciting the receipt of the Howe note as an absolute payment for the land contracted, and agreeing to convey “lot numbered sixteen in the village of Wayne, in O. C. Abell’s addition to said village, and according to the plat thereof,” and to execute a good and sufficient warranty deed, “ as soon as said party of the first part gets said plat surveyed and recorded.” The contract further stipulated that Mun-son should have possession on the first day of September, 1867.

There was testimony tending to show that while the contract ivas agreed upon at its date, and the consideration then paid, yet in fact it was delivered some three months after its date, but dated back by agreement. And the defense consisted in the claim that there was no liability until a survey and plat had been actually made; and also that Abell had used diligence to procure a survey, and that Munson had so acted as to extend the time of performance at various periods.

The statute of frauds requires every contract for the sale of lands to be in writing, and signed by the party making the sale. — 2 Comp. L. § 3179. The rule prohibits any enforcement of parol contracts; and while written contracts, which would have been lawful if unwritten, may be modified by parol subsequently in many cases, yet this cannot be done where the law requires the agreement to be in writing.— Goss v. Lord Nugent, 5 B. & Ad. 58; Stowell v. Robinson, 3 Bing. N. C. 928; Stead & Dawber, 10 A. & Ell. 57; Marshall v. Lynn, 6 M. & W. 109; Blood & Goodrich, 9 Wend. R. 68. And our statute goes further than the English statute, by making the contract void, instead of declaring that no action shall lie upon it.

We cannot look outside of the written contract to ascertain anything which is fixed by it. And if the time of performance is absolutely fixed by agreement, there is no room left for the inquiries concerning reasonable time which the court allowed to be made, and for its rulings concerning which most of the errors are assigned.

The agreement that Munson should take possession on the first of September, necessarily implies that the plat shall have been made previously, for otherwise there could be no identification. As the land had been already paid for, any long delay would have been unreasonable, and we must regard this date as the one fixed by the parties themselves. And if the contract was actually delivered after-wards, inasmuch as the vendor chose to execute a document which contained such a provision, he was bound to convey at once. There was no condition to be performed on the other side, for the land was fully paid for, and under such circumstances he was the only party bound to perform. The whole inquiry concerning reasonable time was irrelevant, and the rulings were more favorable to Abell than he had any right to request.

The plaintiff below, Munson, testified to a demand made in the spring of 1868, and that the property was then worth about $150; and other witnesses testified to its value at that time. It is objected that this testimony was irrelevant. We do not think this objection valid. Assuming the first failure to have been on the first day of September, or when the contract was delivered, if after that time, we cannot regard such evidence of value at a time so little distant, as not admissible to show what was the value of the land previously. The law has no presumptions on the subject of changeable values in real estate, and such proof, though liable to be overcome by evidence of a previous change in the interval, is not too remote. These things must be looked at in a common-sense light, and as they would be-regarded by ordinary men interested in such transactions. While land does undoubtedly change values, yet it does not usually, unless in some peculiar localities, fluctuate so rapidly as to render evidence extending over a few months entirely useless as a criterion.

If the court had declared this evidence conclusive, and had shut out evidence of value at other periods, it might have become necessary to consider whether, after the time for performance has elapsed on a land contract, the New York rule, requiring a demand before action, should be recognized, or would apply where no tender is needed, as in a case like the present, where the consideration had all been paid in advance. See Connelly v. Pierce, 7 Wend. 129; Blood v. Goodrich, 9 Id. 68. As the case stands, we do not feel called upon to consider the force or necessity of a demand, as fixing the date of liability for non-performance.

The case is a very clear one, and the only error that we can discover is that the plaintiff below conceded, and the court adopted, a series of admissions of legal privileges, to which defendant below was not entitled. These are not errors of which he can complain in this court.

The judgment must be affirmed," with costs.

■The. other Justices concurred.