Blagborne v. Hunger

101 Mich. 375 | Mich. | 1894

Montgomery, J.

In May, 1892, the complainant entered into a written contract with the defendant for the construction of a house. The contract required the defendant to remove an older dwelling-house and office to the rear of complainant's lot, erect a small addition to the office, and construct a dwelling-house on the site of the old residence. The agreed price was $2,200. Complainant agreed to pay defendant $800 in cash from time to time, as the work proceeded, and $1,400 was to be secured by a mortgage upon the premises. The mortgage was executed and delivered on June 4, -and, soon thereafter, defendant began moving back the old buildings, and getting together the material. The defendant let the job of moving the old buildings to a house mover, for $75. Shortly after the work commenced, complainant paid the defendant $100 npon the contract.

The complainant filed this bill to procure a discharge •of the mortgage, alleging that, after the making of the •contract in question, he changed his mind, and agreed with the defendant that the contract might be abandoned, in consideration of defendant's being permitted to retain the $100 which had been paid him upon the contract, which would pay the $75 expenses of removal, and leave defendant $25 for his trouble; and that complainant also agreed, as a consideration for being released from the contract, to pay defendant for his material. There is a •conflict in the testimony between the two parties as to this question of fact, — the defendant claiming that the contract never was abandoned; the complainant insisting that it was, and that he asked for a statement of the amount of material which was placed upon the lot, which defendant refused to give, but sent him a note, saying that he would accept $250 over and above what he had already received, and release him from the contract.’ The circuit judge granted the relief prayed by complainant, and defendant appeals.

There is a direct conflict in the testimony, and, as the circuit judge had the better opportunity of judging of the credibility of the witnesses, we are not disposed to disturb his finding upon the question of fact.

As a condition to the relief, the circuit judge required that "Complainant should pay to the defendant the value of the material, $48.56, and found that the complainant was excused for not tendering the amount because the defendant furnished no bill of items. As no costs were awarded to the complainant by the court below, the decree was not, in this respect, as favorable to complainant as would be expected, if he was entitled to relief at all.

But it is contended:

1. That there was no consideration for the release of the agreement by the defendant.

2. That as the agreement was in writing, and under seal, it could not be discharged- by a verbal promise.

We do not think either of the positions tenable. There was already in the hands of defendant $25 over and above what he had expended, which would have been, in and of itself, sufficient consideration for the discharge of the agreement. In addition to this, there was the promise on the part of complainant to pay for the material.

As to" the contention that the agreement could not be varied by parol, we think the question has been determined in this State. As is said in Barton v. Gray, 57 Mich. 634:

“In modern times the attaching of a seal to a signature is not regarded with that reverence which was formerly the case; and when the Legislature enacted that a seal or wafer was unnecessary, but that a scroll or other device should be sufficient¹ the solemnity attending the execution of such contract vanished; and when the Legislature further provided that no instrument should be held invalid for want of a seal,² and it became, under the statute, mere prima facie evidence of consideration,³ the affixing of seals, except to instruments required by law to be under seal, became of no practical importance. Consequently, it has been held by this Court that parties who have made written contracts may vary them afterwards, as much as they please, by parol, if the nature of the agreement is not such that the law requires them to be in writing/'

See, also, Seaman v. O’Hara, 29 Mich. 66; Westchester Fire Ins. Co. v. Earle, 33 Id. 152; Roger Williams Ins. Co. v. Carrington, 43 Id. 256; Kimmerle v. Hass, 53 Id. 341.

The decree will be affirmed, with costs.

The other Justices concurred.

1 How. Stat. § 5699.

2 How. Stat. § 7778.

3 How. Stat. § 7520.