47 Mich. 378 | Mich. | 1882
This bill was filed May 11, 1876, for the specific performance of an alleged oral agreement relating to certain premises in the city of Ionia, and the court made a decree for performance. A claim was set up for an accounting but was waived on the hearing. The controversy is between two brothers and it dates several years back of the filing of the bill. For a particular understanding of the dispute and of the actual case to which the judgment of the court must be confined it is necessary to recur to the bill and answer after a few preliminary words by way of preface.
In 1865 the defendant owned two frame buildings and the ground they occupied fronting on Main street in Ionia,.
In this state of things these parties in the year last mentioned proceeded as the bill states to enter into an oral contract by which the complainant was to buy the eight and a half feet next to Titus and then construct on the two parcels a two-story brick building with a basement. That the defendant thereupon should use and enjoy said building and have the rents and profits until such use and rents and profits should equal the value of the strip of ground and premises still in his ownership, such value being fixed at $70 per foot frontage for 17 feet, (or the round sum of $1190,) and then on the occurrence of that result should convey to complainant the last-named parcel with all rights of way and passage and of party wall appurtenant.
The bill goes on to aver that relying on such agreement the complainant immediately purchased the Ohiddester strip and paid for it $610 and also acquired of Titus at large expense a party-wall right, and in accordance with said agreement proceeded and caused to be erected and constructed a two-story brick building eighty feet deep with basement under it and extending over both pieces of land, at an expense of $3015. That immediately on the erection and construction of the building by complainant and as soon
The statements of the answer are wholly different. The defendant there admits that he requested complainant to buy the Chiddester strip but denies that it was purchased for the purpose or in the manner set forth in the bill. He avers and insists that it was bought in complainant’s name for the defendant and in trust for him and that the money used therefor was in part furnished by complainant and in part by defendant, and that defendant has since paid complainant every dollar he so advanced with the interest added, and that said strip, although now standing in complainant’s name, is in equity the defendant’s property.
The answer distinctly denies that the parties contracted as claimed in form or substance and avers that the only agreement made in reference to the building was that the complainant would from time to time advance moneys to be used in the erection and completion of it, of which an account should be kept; that such advance should be a loan from complainant to defendant without security and be repaid with interest. That defendant put up the building and mostly with his own means. That complainant during the early part of the work did loan to defendant about six or eight hundred dollars in money and materials, and then absolutely refused to lend any more, and that defendant thereafter and long prior to the filing of the bill actually paid to complainant jail of such advances and also the entire amount the latter laid out for the eight and a half feet
The foregoing statements exhibit the case made by the bill and the response thereto by the answer. Each party verified his statement by his oath and gave to it whatever title to credence that solemnity could bestow.
The complainant sets up his equity as a right to have the defendant carry out by conveyance an alleged unwritten agreement between the parties, which, as complainant avers, he has fully performed on his part. The defendant denies making the alleged contract and contradicts the claim of performance. He also sets forth his own explanation of the transaction to which the litigation applies. Whether what is described in the bill as the contract to be enforced possesses the attributes of certainty which are requisite to justify any attempt by the court to execute it is a question which may be waived. As the case stands on the record no discussion of that point is necessary.
The question whether in fact the parties actually contracted as alleged, and in case they did so, then whether the complainant performed his part of it, depends on their testimony. Beyond that there is nothing which is much to the purpose. The mass of matters from other sources consists of surrounding incidents which are open to different constructions and various inferences and only adapted to explain and brace up a case already clearly marked out by other means. The first thing is therefore to extract from the scattered explanations of the parties their versions of the transaction.
The complainant on going on the stand to support the allegations of his bill testified that the agreement was that he should buy the Chiddester strip, and acquire from Titus the right to use and have the benefit of his wall, and should
When sifted from other matters the defendant’s version seems to be substantially as follows: That he told complainant to buy the Cliiddester piece, whereby a parcel would be provided, by joining- defendant’s strip of fifteen feet or thereabouts, very desirable for a, building site. That defendant would put in his strip at $75 or $80 per foot front. That complainant should go on and construct with his own means in a certain time a building covering the two parcels and that defendant should then hold the property until satis
It is barely needful to compare the sworn statements in the bill and answer and the sworn statements made upon the stand to see quickly that the parties as between themselves very seriously disagree, as well in their pleadings as in their testimony in most important particulars; but moreover that in giving in his sworn allegations and in testifying as a
The correct doctrine in this class of cases was tersely yet accurately laid down in Wilson v. Wilson. The court said: “Not only must the contract, when resting in parol, be proved in the clearest manner, but it must be substantially the same set forth in the bill.” 6 Mich. 9. Both branches of the proposition are here applicable. While there is more or less testimony to show that a contract existed it falls far short of clear proof of the thing or things agreed upon. So far as it merits credence it fails to elucidate terms and develop outlines and no one can gather from it any certain idea as to what was understood. Again, if the showing made by complainant, when his own witness, is accepted, it is far from being in substantial accordance with his bill. By the contract as there set forth it bound the complainant to make and finish the entire building in a reasonable time and without the aid of any means from defendant, and he alleged full performance. But according to his own testimony the contract provided among other things that completion of the upper part of the building should be delayed and not be done by himself nor with his means; but by defendant and out of the rents. And he swore that he did not fully construct the building and had no knowledge whether it was yet finished. It is needless to specify all the disparities.
Why it was that both parties, as they admit, contributed
It is not improbable that complainant holds rights in the property of which he cannot be deprived, but if he does he bas not established by this litigation any claim to relief.
The decree ought to be reversed .and the bill dismissed but without prejudice.
The defendant will recover his costs of both courts.