29 Mich. 496 | Mich. | 1874
This was an action of assumpsit, which by statute (Comp. L., § 619J¿), is authorized iu lieu of coyenant, brought in tbe circuit court for the county of Kent, upon a • deed executed by tbe defendant to tbe plaintiffs, June 25th, 1873, purporting to convey “lots number one (1), two (2), three
The declaration contains two counts; the first sets forth that “prior to the execution of the deed, the defendants, to induce plaintiffs to purchase the several lots, stated and represented to plaintiffs that said lots were each one hundred and sixteen feet in length, and that all of them were bounded and fronted by a certain public street called Hollister street, and that said street was sixty-six feet in width; that defendants at the same time produced and exhibited to plaintiffs a plat of said lots and of said street, showing the dimensions of the lots and street as aforesaid, which plat was entitled and designated as ‘A plat of Stevens and Pierce’s subdivision of lots six, seven, eight, nine, ten and eleven of Barclay’s addition to the city of Grand Rapids, Kent county, Michigan,’ and purported to have been recorded according to law, April 28th, 1873; that defendants stated, represented and promised plaintiffs that said plat was a correct representation of the dimensions of said lots and said street; that plaintiffs examined the record of said plat prior to the purchase, and found it to be the same as the plat so exhibited to them by defendants; that upon examining the records in the office of the register of deeds, they ascertained that said plat had been duly recorded, and that said street had been duly dedicated by defendants, as a public street,, sixty-six feet wide, according to law; and that, relying upon said representation and promises of defendants, and the said plat, they made the purchase,” etc.
The breach alleged in this count is substantially this: that defendants have not kept and fulfilled the covenants in their deed, but have broken certain of said covenants, in this, to-wit: that they have not conveyed the whole of the land which, by the terms of said deed, they assumed,
The second count, apparently admitting that the lots were one hundred and sixteen feet in length, and of the full size shown by the plat and representations of the defendants, after alleging substantially all the other preliminary matters contained in the first count, assigns as a breach, that Hollister street, which by said plat and representations was declared to be sixty-six feet wide, is in fact but fifty feet wide; that on this account, and for this reason, said lots are of much less value than if said street, upon which they front, had been of the greater width represented by the defendants and the plat, etc.; and claims damages on this ground.
The whole theory upon which the plaintiffs sought to recover, -as shown by their declaration, their course of proceeding upon the trial, and the argument here, seems to be this: that, if the street is in fact only fifty feet wide, then the lots are of the size represented by the defendants and their plat; but, if the street is in fact sixty-six feet wide,, according to said plat, representations and covenants, then there is the deficiency of sixteen feet in the length of the lots; that the enlargement of the lots to the length required (by the plat and representations), narrows the street sixteen feet below its required width, and breaks the covenant as to the street, and the enlargement of the street to the-
A defense to such a declaration would, upon this theory, seem to be somewhat embarrassing to the defendants; but we shall not stop to inquire whether these two counts were not so utterly inconsistent, and so calculated to embarrass the defense, that the plaintiffs, on motion of the defendants, might have been put to their election, upon which count they would stand. No such motion was made. The case was tried before the court without a jury. The judge made a special finding of the facts, or rather of parts of facts (for it is mostly a mere statement of evidence), and thereupon rendered judgment for the defendants; to which the plaintiffs excepted, on the sole ground, that, upon the facts found, the judgment should have been for the plaintiffs.
Before proceeding to consider the facts found, and the legal conclusions properly resulting from them, it is proper to say, that, upon their own theory of the case, the plaintiffs could not possibly succeed upon both counts, which were so utterly contradictory that the success upon one involved defeat upon the other. The facts found, therefore, must warrant a recovery exclusively upon one of the counts, without any support from the other, in the same manner as if the declaration had contained but the single count (which is the rule in all cases of several counts), and the facts found must be such as to enable us to see which of the two counts they sustain; if they failed to do this, it was, of course, impossible for the circuit court, and must be equally impossible for us, to say that it sustains the cause of action set forth in either.
Now, upon a careful examination of the facts found, if they can be said even to establish inferentially the first proposition, that there was a deficiency in one or the other (and it is doubtful if they show even this), they certainly fail to establish the second proposition, viz.: to show in which the deficiency existed, whether in the street or the lots. All that appears in the finding bearing in any manner upon this question is, that, by the plat shown plaintiffs by the defendants, and the record of that plat in evidence, the street was represented as sixty-six feet wide, and the lots as one hundred and sixteen feet long; that the plat of Barclay’s addition, of lots six to eleven, inclusive, of which the first named plat of Stevens and Pierce purported to be a subdivision, was recorded the year previous; and represented lots six to eleven, inclusive (from which lots one to seven of the Pierce and Stevens’ plat were formed), as one hundred and sixteen feet long, and the street as fifty feet wide; but the finding fails to show in any manner
This will sufficiently appear by reference to the finding, the whole of which, so far as it relates to this point, is here inserted in a note to which we refer.
The judgment must therefore be affirmed, with costs.
“The following named plats and deed were introduced in evidence, viz: The deed executed by said defendants to the plaintiffs, July 5th, 1873, and set forth in the plaintiffs’ declaration herein; the copy of the plat of defendant’s subdivision, exhibited to plaintiffs, hereinbefore referred to; and the original plat of said defendants’ subdivision, recorded in the office of the register of deeds for said county, on the 28ih day of April, 1873.
“ The following diagram represents said recorded plat, and all the lines, letters and figures thereof:
) j86,
“ ‘ This plat and accompanying dedication were received for record April 28th, 1873, at 9 o’clock A. M., and recorded in Book 3 of Plats, on page 19.
Simeon Hunt, Register.
“ ‘ The accompanying plat of Stevens & Pierce’s subdivision of lots 6, 7_, 8, 9, 10 and 11 of Barclay’s addition to the city of Grand Rapids, in the State of Michigan, is laid out and platted so as to make seven lots on the west side of Hollister street and fronting on the street. The size of the lots is marked on their sides and ends, with figures representing their size in feet, and are numbered from 1 to 7, inclusive. The number of the lots is marked with figures in the center of each lot.
“1 This plat and dedication are designed for record, to be known and recorded as Stevens & Pierce’s subdivision.
“ 1 Witness our hands and seals this 26th day of April, 1873.
Sidney P. Stevens. [Seal.'
Harry H. Pierce. [Seal.’
W. L. Coffinbury. [Seal.'
“ ‘State of Michigan, County of Kent,
‘
“ ‘ On the 26th day of April, 1873, before me, a notary public for said county, personally came the above named S. P. Stevens, Harry H. Pierce and W. L. Coffinbury, known to me to be the persons who executed the foregoing instrument, and acknowledged the same to be their free act and deed.
Wilder D. Stevens, Notary Public, Kent Co., Mich.’
“ The counsel for defendants objected to the introduction in evidence of the last named recorded plat for the purpose of showing the dimensions or extent of the lots or the width of the street, on the ground that the same was immaterial and irrelevant; that the same was not referred to by the deed; and also for that said plat was not made, executed and recorded according to the statute in relation to town plats, which objection was then and there overruled by the court.
“ To which ruling the defendants did then and there except.
“The plaintiffs then introduced in evidence the said recorded plat of Barclay’s addition to the city of Grand Rapids.