111 Mich. 144 | Mich. | 1896
The statement of facts prepared by coun-sel for defendant’ is so terse and clear that it is adopted here:
“Plaintiff’s claim was that defendant was to take his property subject to the mortgage of $1,850, the accrued interest, and back taxes, and give him in exchange therefor $200 and the Coopersville property, subject to the principal, only, of the mortgages of $200 and $300 mentioned in his deed, and that defendant was to pay, not only the interest accrued on them at the time of the trade, but as well what would accrue to the 9th day of April, 1892. Defendant admitted the bargain was as stated by plaintiff, except as to the interest on his mortgages. He paid plaintiff the $200, and deeded him his Coopersville property subject to the two mortgages, but did not pay any interest on them, claiming the bargain was that plaintiff was to take his place subject to the mortgages and accrued interest. March 30, 1892, _ the interest not having been paid, foreclosure proceedings
The jury, under the rulings and instructions of the court, found for the plaintiff; and it is those rulings and instructions of which defendant now complains, and which he asks this court to review.
The first group of assignments of error relates to the opening statement of counsel. A great deal was said by the attorney for the plaintiff in his opening that it would have been well to leave unsaid, but we do not think what was stated was so prejudicial as to justify us in reversing the case for that reason alone.
The assignments of error that next require discussion relate to the admission of oral testimony of the agreement of defendant to pay, not only the accrued interest on the two mortgages, but also the interest up to April 9, 1892. Counsel insist—First, that it is an attempt to vary the terms of a written agreement; second, that it is an agreement in regard to real estate, and, to be binding, must be in writing; and, third, that the deeds themselves were the final agreements about the exchange, in which all prior or contemporaneous agreements merged; citing Cook v. Bell, 18 Mich. 393; Abell v. Munson, 18 Mich. 306 (100 Am. Dec. 165); Vanderkarr v. Thompson, 19 Mich. 85; McEwan v. Ortman, 34 Mich. 327; Adams v. Watkins, 103 Mich. 431. It is undoubtedly the rule in this State that you cannot vary the terms of a deed by parol, and that a conveyance of an interest in real estate must be in writing to be of binding force; but we do not understand that this was the purpose of the testimony. It was sought to show by the testimony what was the actual consideration for the giving of the deed. Our understanding is that parol testimony is competent to show
Upon the trial, Mr. Goodrich, who was the attorney in the foreclosure proceedings, was allowed to testify what defendant told him about paying the interest. We think this competent, as bearing upon the theory of plaintiff that defendant had agreed to pay the interest. Mr. Goodrich was also allowed to testify that he made a computation of the amounts due on the mortgages at the time they were discharged and paid, and made a memorandum thereof, which he produced, and from which he testified how mtích was due on the mortgages. It is said that the mortgages ought to have been produced, and that Mr. Goodrich had nothing present to base any figures upon, so that it could be told whether or not they were correct. Mr. Goodrich was cross-examined at length about his knowledge of the amount due on these mortgages, and, while it appeared that he was not present when the payments were made, and could not remember what indorsements were made on the mortgages, it was made to appear that the computation was made while the mortgages were in his possession and in process of foreclosure, and for the sole purpose of learning how much was due upon them. We think Mr. _ Goodrich was shown to have sufficient knowledge of the subject about which he was testifying to make him a competent witness. It might be suggested, in this connection, that Mr. Savage was a witness, and was examined about the two mortgages and his payments thereon. He did not contradict the testimony of Mr. Goodrich as to the amount due.
The other assignments of error have had consideration, but we do not deem it necessary to discuss them here.
The judgment is affirmed.