Lamb v. Lamb

161 Mich. 80 | Mich. | 1910

Brooke, J.

(after stating the facts). It is claimed by defendant that a verdict should have been directed in his favor, upon the ground that plaintiff, by his conduct at and before the time the contract (March 12, 1908) was entered into, has estopped himself from setting up any title to the rye in question. This point requires consideration only, if it is determined that Springs by his contract of March 12, 1908, attempted to convey his title to his one-half interest in the grain to defendant.

It is not disputed by defendant that, either under the terms of the lease or of an oral agreement between himself and Springs, Springs owned a one-half interest therein at the time it was sown. Under familiar principles, this right of ownership would carry with it the right to harvest the grain, unless Springs parted with that right. Now, in March, with this 28 acres of rye growing upon defendant’s land, he and Springs enter into an agreement, under which Springs leaves his farm. Springs’ interest in the rye was of much greater value than any other single item on the place, yet no mention is made of it in the contract, while cattle, sheep, hogs, hay, and even chickens are carefully divided and accounted for. Nor does defendant claim that in the adjustment between himself and Springs any credit was allowed to Springs on account of his interest in the grain. He does claim, however, that the general language of the contract, “it shall be a full satisfaction of all claims, demands, suit, or any other demand whatsoever, manner or nature, which either party may have or believe he has against the other arising out of farm lease or otherwise,” clearly indicates that Springs intended (and he, defendant, so understood) to convey his title to the rye to defendant. We have been unable, after a careful reading of the entire record, to reach this conclusion. Defendant himself was not present when the division was made, and the contract executed by Springs. He was represented in the negotiations by his son and an attorney. It seems to us unlikely that the thing of most value which Springs possessed would have been omitted from the contract, if sale thereof had been contemplated by the parties. All those present at the time the contract was made agree that no mention whatever was made of the rye, either by defendant’s agents or by Springs or plaintiff. We conclude therefrom that in the settlement of March 12, 1908, no change in Springs’ title to the rye was intended to be effected. This conclusion renders it unnecessary to consider whether or not error was committed in the charge upon the question of estoppel.

In this court defendant urges that plaintiff should have had recourse to the other property covered by his mortgage before proceeding against defendant for the value of the rye. *

No requests to charge upon this point were preferred, and no error assigned. The question cannot now be raised in this court. Stevenson v. Woltman, 81 Mich. 200 (45 N. W. 825); Roush v. Darmstaetter, 113 Mich. 535 (71 N. W. 867); Cir. Ct. Rule 47 e. We find no prejudicial error.

Judgment affirmed.

Hooker, Moore, McAlvay, and Stone, JJ., concurred.