30 Mich. 242 | Mich. | 1874
This is a case made after judgment. The suit was commenced by attachment. The declaration embraced, with the common counts, some which set up a special agreement. In these last were alleged the terms of a sale in August, 1869, by decedent to defendant, of a stock of groceries and merchandise, and other things, with the bus-' iness and good will of decedent, for four thousand eight hundred dollars. As stated in the record, the terms and particulars of the arrangement were special and peculiar;
The court referred the case to a referee, who found in favor of the plaintiff for four thousand two hundred and. seventy dollars and sixtv-six cents, with interest thereon from August 25, 1873, being one hundred and sixty-four dollars and forty-seven cents.
Exceptions were taken to rulings on the trial before the referee, and subsequently settled. Exceptions were-also filed to the report made by the referee. But all of' these exceptions were overruled in the court below, and judgment was there given pursuant to the finding. These various exceptions are set forth in the case, and we may first notice those taken on the trial before the referee. The defendant appearing as a witness in his own behalf,, his counsel proposed to show by him that the contract between himself and decedent, which was verbal, differed from the contract as set up in the declaration, and differed, from a written statement of it which defendant had given to the plaintiff.
This was objected to on the ground, first, that the defendant could not be a witness on his own behalf, to-prove a fact which must have been equally within the knowledge of decedent; and, second, on the ground that no notice had been given that proof would be offered of an agreement differing from that averred in the declaration.
The offer was rejected. We find no error in this ruling. The circumstances given by the record leave the-
The letters of administration were admitted against an objection that no such faots and circumstances were shown to the probate court as authorized the appointment of the plaintiff as special administratrix. This objection had no force. The regularity of the appointment was not open to inquiry on the issue being tried.
The admission of the order of the probate court, permitting the plaintiff to prosecute this suit, was likewise objected to. There was no merit in this point, and it is unworthy of special comment. It is but just to the defendant’s counsel to add, that these questions were rather suggested than urged.
The learned referee reported that he was unable to find what occurred at a particular interview which took place after the death of Mr. Cook, between the defendant and Joseph Cook and Mr. Joslin, who were then acting for the widow. It does not appear that a finding on this subject was essential. Neither does it appear that there was evidence on which a finding of the sort mentioned was practicable. It is quite plain that the referee could -not find affirmatively what occurred, unless the evidence, when rightly construed, showed or tended to show it. The evidence is not before us.
The referee found substantially that- on the 25th of August, 1873, the defendant entered into an entire contract with decedent, which involved á present completed transfer and conveyance from decedent to defendant, of the decedent’s mercantile establishment, certain personal chattels, a policy of insurance, and a lease; that defendant, in consideration of the transfer and arrangement, agreed to. pay four thousand eight hundred dollars;. that the transaction, so far as the bargain was concerned, was verbal, except that the policy and lease were assigned in writing; that the
■ On the part of the decedent the agreement was fully executed, and the defendant immediately obtained every thing he contracted for. But he then failed or refused to perform on his part. Having secured the whole property through' the decedent’s compliance with the agreement, he would neither pay for it, nor give security.
Moreover, it appears in the case, that he was not the owner of the Indiana land, and not in a situation to give the principal security agreed on. It certainly was not the intention or expectation that he should have the property without paying for it.
There is no plausible groimd, as the court think, for contending, either that the defendant did not break the con- - tract, or that the breach was not a most substantial one.
It is next made a point that, supposing the contract to have been broken by the defendant, still the breach committed was not such as to authorize a recovery for the whole sum remaining unpaid.
It is true that the terms of the special agreement contemplated that payment of a portion of the consideration would be postponed, but it was an essential part of this
The defendant obtained the property on his express promise to pay part down and give at once the designated securities, and he had only to observe his promise to secure, not only reasonable delay, but all the delay he appears to have sought. But he failed to observe it. May he now say, “ It is true I got the property on the faith of my promise to pay part down and secure in a given mode the residue for the time of credit mentioned; and it is true, that I have neither paid the cash installment or the other payments, or given any security, and hence have broken my agreement; yet I am entitled to urge in my defense against a claim for the price of what I so received, the very stipulation which I violated, and which would have given all the credit I insist on if I had not violated it.” In the very act of disregarding the contract, can the defendant insist that it binds the plaintiff? The court think not. Such a defense would certainly be quite unjust; and where, as in this case, the pleading is adequate to permit a recovery for all, the principles of law will not preclude it. By refusing or failing to keep that term in the agreement which was introduced to assure him delay, he entitled the other party to insist upon the resulting alternative of immediate payment.—Worthy v. Jones, 11 Gray, 168; Hanna v. Mills, 21 Wend., 90; Rinehart v. Olwine, 5 W. & S., 157; Thomas v. Dickinson, 23 Barb., 431, S. C., 2 Ker., 364; Goldsborough v. Orr, 8 Wheat., 217, 227; Mullaly v. Austin, 97 Mass., 30.
No error is shown, and the judgment must be affirmed, with costs.