56 Mich. 472 | Mich. | 1885
The plaintiff in this case alleges her cause of action against the defendant in three counts: (1) For an assault and battery; (2) for malicious prosecution; and (3) for false imprisonment. The plea is the general issue. The circumstances out of which the cause of action arose are these: John O. Franck, husband of the plaintiff, on the 15th day oí January, 1880, by written contract, agreed to sell to the defendant a strip of land in the township of Ecorse, in the county of Wayne, for the sum of eighty dollars per acre, and which agreement was also to be a settlement of all suits then pending between the parties, whether “ of a civil or criminal nature.” Such agreement was to be fully carried out by the parties before the .first day of September, .1880. Louis Wiegert tendered the money agreed to be paid for the land
There seems to have been no question made but that John C. Franck owned the property contracted to be conveyed and could have conveyed it, if he had desired; nor that the tender was insufficient. Neither does it appear any question was made upon the pleadings. The cause was tried before a jury and they found specially, upon questions submitted to them by the court on requests of defendant’s counsel, the following facts: That John O. Franck gave the contract for the sale of the premises to Wiegert as claimed ; that Wiegert made the tender as claimed to John C. Franck; that Wiegert did not take possession of the land purchased and build the shanty, believing he had the right so to do; that defendant Wiegert aimed a pistol at the plaintiff; and that he assaulted her with the intention of doing her bodily harm. Under the testimony and charge of the court, the jury gave their general verdict for the plaintiff on the first and second counts, and the court directed a verdict for defendant on the count
The right of the parties in this case must very much depend upon the terms and construction of the contract for the purchase of the land, entered into between John C. Franck and defendant. The plaintiff can claim nothing in the premises that her husband could not, had the assault complained of been committed upon him. There is no question made but that John C. Franck had peaceable possession of the property mentioned in the contract up to the time defendant entered. The contract gave the defendant no possession, or right to possession, until it had been fulfilled. The contract was only an agreement that John C. Franck would give defendant such possession at the time agreed, upon receiving from defendant payment of the amount stipulated as the price of the land. The contract itself was a settlement of the litigation between them. That part of the consideration had been received by plaintiff’s husband. It does not appear that the defendant ever paid any money upon the contract, and so far as the contract shows, the amount therein stated was all the money consideration there was to be paid for the land. In no event could the right of the defendant to a specific performance of the contract be litigated in this suit. That could only be determined in a court of equity.
The testimony, however, showing or tending to show what construction, if any, the parties themselves had put upon the contract, or of the judgment of a court of competent jurisdiction upon the rights of the parties themselves relating to the question of possession of the premises, was competent upon the issue made. The defendant does not claim adversely to the Francks, but as entitled to the possession under them. If the defendant, at the time he entered into possession of the property, had the right to that possession, and he entered peaceably, such possession would be lawful, and Aeither the plaintiff nor her husband would have the right to ‘forcibly put him out; and such would be the case even if defendant had no deed, if he was entitled to a specific performance of the contract. In this case it became a question who had the
The jury in this case found that the defendant did not take possession and build his shanty upon the land under a claim of right under the contract, believing he had a right so to do. But this finding is of little significance, so long as the judge charged them that the defendant had no right of possession in the premises ; that “ he was a mere squatter or intruder on the farm; that “the Francks undoubtedly had the right under the circumstances to go and use ” the proper force to tear down the shanty and take it away ; that “they might use so much force as was necessary for that purpose.” He might as well have told the jury that the defendant was guilty of bad faith in the premises, and with the most reprehensible motives took the possession he claims to have done-in good faith. I think that portion of the above charge excepted to was incorrect, and should not have been given.
What the jury would have said as to the defendant’s right to the possession of the premises, under proper testimony and a proper charge, of course cannot be determined in this Court. But had the jur}7 found that the defendant had the
The decree proposed to be offered in evidence in this case for specific performance of the contract .was reversed at the last term of this Court, on the ground that the description was imperfect. Ante, p. 200. This may or may not deprive the defendant from perfecting his rights intended to be secured under the contract. That question cannot, however, be now considered; we are only called upon to pass upon the question raised upon this record.
The first and third counts of the plaintiff’s declaration were for an assault and battery alleged to have been committed by defendant upon plaintiff; and the second count is for malicious prosecution. To justify the assault and battery, defendant was permitted to prove that he held a contract executed by plaintiff’s husband for a piece of land ; that he had tendered the contract price therefor, and demanded
After the charge of the court the jury retired and returned a verdict that they found for the defendant on the last count, and for the plaintiff on the others for thirty dollars. Defendant’s counsel then desired the clerk to poll the jury as to whether they found a joint verdict on both counts, — the count for malicious prosecution and the count for the assault. The clerk then directed the jury as he called their names to answer whether they found the defendant guilty of the sec
Judgment was entered upon the verdict, and I think it should be affirmed.
The seventh and eighth special questions which defendant asked to have submitted to the jury and which were excluded, were as follows:
7. Did not the plaintiff, Catherine Franck and her husband. John C. Franck, enter upon said strip of land with force and not in a peaceable manner and eject Wiegert therefrom?
8. Did not plaintiff and her husband commit the first assault upon defendant by violently tearing down his shanty, and did they not threaten him with grievous bodily harm?