Cook v. Bell

18 Mich. 387 | Mich. | 1869

Campbell J.

Cook, the plaintiff in error, contracted in writing to sell certain lands to Henry C. Bell, a son of the defendant in error, for a sum of money, payable at fixed times by im stallments, allowing sixty days grace, and providing for the avoidance of the contract, and the right to retain payments made, in case of failure to pay as agreed. The money to make the payments actually made, was advanced to Henry O. Bell by defendant in error, and he assigned the contract to her, and Cook had notice of the assignment. • Mary Bell failed to make her payments as provided for, and there was evidence from which the jury were satisfied that a parol agreement was subsequently made to extend the time and make some new terms as to the mode of payment. Before the time as thus extended expired, Cook upon the application of Henry C. Bell conveyed the land to Marietta Bell his wife; and Mary Bell, after causing an application and offer to-pay to be made to Cook, brought this action. The jury under the charge, found for the plaintiff below, and Cook brings error upon allegations of misrulings at the trial.

Among other things, a deposition taken under commission Avas introduced, and the return, instead of being endorsed upon the commission itself, was written upon one of the sheets appended by the commissioner.

Objection Avas made to its introduction, ás not in accordance with the statute. If proper notice was given of the filing, the objection could not be made at the hearing Rule 54. It is only where no notice is given that objections of form are permitted on the trial. Knight v. Emmons, 4 Mich. R. 554. In this case, it is not alleged that any such notice was given, and it becomes necessary to decide upon the sufficiency of the return.

The Statute (2 C. L. § 4250) directs that the Commissioners “ shall annex all the depositions and exhibits to the commission, upon which their return shall be endorsed.” This language is rather ambiguous, and may refer as well to the depositions as to the commission. But Ave think no reason exists for holding to any technical construction of this direction. If we look to the reason of the thing, there would be less danger of substitution of papers, if the return should be upon the documents, instead of on the commission. But we can see no good reason why the papers should not be considered as a single document consisting of various parts, and as well identified in one way as in another. This seems to be the view of the New York Court of Appeals, under the same statute, and we concur in their conclusion. — Pendell v. Coon, 20 N. Y. 134.

It was also insisted that the court erred in holding that the contract in question was such a “chose in action” as could be sued by the assignee in her own name, under Section 4159 of the Compiled Laws,' as amended in 1863, Latos 163, ¶. 102. We have no doubt it is within the statute, which reaches every right in property which was ever assignable in equity, or capable of survivorship to executors. As this statute was explained in Final v. Backus, 18 Mich. R. decided at the present term, it is not necessary to consider it further.

The principal question, however, arose upon the validity of the parol alteration of the contract. It was an agreement to sell lands, and under the statute of frauds, would have been absolutely void at law, unless in writing, and signed by Cook. No change can be made by parol, which would not, so far as it extended, leave a part of the contract itself in a shape forbidden by the statute. The question was recently settled in Abell v. Munson, 18 Mich. R. decided at this term. The court erred in allowing proofs of the parol arrangements.

A question was suggested on the argument, under one of the requests to charge that plaintiff’s remedy was only in equity, whether she could in this action recover back upon the common counts for money had and received, the payments made before forfeiture. But the case does not appear to have been presented t& the court or jury, upon any such hypothesis, and we do not feel at liberty to examine it upon this record. .The same difficulty arose in Waldo v. Simonson, 18 Mich. R. p. 345, disposed of a few days ago, where tbe plaintiff below endeavored in this court to rely upon a supposed right of action under the common counts, when the case had been tried entirely on the special counts. As the court here sustained the right of Mrs. Bell to recover upon the special counts, and all the charges were given or refused on that basis, we have no means of knowing what view might have been taken of this point in the court below, nor what proof would have been before the jury concerning the plaintiff's interest in the retained payments.

As the case stood, no occasion had arisen to examine into that subject.

The judgment must be reversed, with costs, and a new trial granted.

The other Justices concurred.