32 Mich. 64 | Mich. | 1875
Smith sued Leslie and recovered for the value of 'labor and services connected with the improvement and care of certain lauds. The declaration contained the common counts and also a special count. But as the court held there could be no recovery on the special count, and as it varied materially from the contract sworn to by plaintiff below, it need not be considered. The questions before us all arise out of the rulings of the court upon the case as submitted to the jury.
Smith swore in substance to a parol agreement made in 1855 in New York, whereby he was “to go on this one hundred and sixty acres and improve it, and he, Leslie, to have the land if he wanted it, and if he did he was to pay me for the improvements, or he could deed me sixty acres of the land, which would be in full pay, and I was to act as his agent in regard to other lands.” On cross-examination he said “he was-to pay the taxes on the southwest quarter of section twenty-five (the land in question), and have pay for the improvements after he got a start.”
The other testimony related to what bad been done, and to Leslie’s conduct in regard to it.
The court below ruled upon questions presented by both parties, and also charged generally. In the general charge, after holding the parol contract void, the judge proceeded further to say:
“But if the arrangement claimed by plaintiff was actually made, and even though it was void by statute of frauds, if it was afterwards, without objection of either party, actually executed, if the parties treated it as a valid agreement, and if plaintiff went on under it and made the improvements claimed, and that without objection on the part of defendant, but, instead thereof, under the defendant’s observation and 'encouragement from time to time, then the plaintiff ought to recover, not upon the special agreement, but upon the quantum meruit, the reasonable value of such improvements, deducting the value of the use of the land and improvements ; and such recovery is based upon the theory that the plaintiff, at the request of defendant, has performed labor and made expenditures f.or the benefit of defendant.”
The court further charged, on request, that if plaintiff went upon the premises in March, 1856, clothed with a discretion as to the amount or kind of improvements he might make thereon, defendant should pay what they were reasonably worth, less the value of their use. That if the plaintiff
And the court refused to charge that an express agreement was necessary to authorize a recovery for improvements. Other rulings were made which need not be referred to.
It is manifest throughout that the original agreement was laid before the jury as creating contract relations, and that a recovery was allowed in precise accordance with its terms, which gave a right to recover on a quantum meruit, in case Leslie saw fit to retain the land himself.
The whole theory of the charges referred to is, we think, erroneous, and in some respects is in conflict with Smith’s testimony, and not sustained by any testimony in the cause. It seems to rest on the theory that such a contract is validated by part performance.
But assuming, though not deciding, that this might b<} so with a contract which would have been valid if in writing, this contract could not be maintained on any basis. It fixes no time of performance, and might be perpetual. It fixes no kinds or extent of improvements, nor where they were to be made, nor when. It fixes no parcel of land to be given in payment, nor declares whether it shall or not be improved land. If the sixty acres were to lie outside of the improvements, there was no part performance by distinct possession; if within the improvements, there was no consideration for .an alternative performance. A contract so indefinite in all respects would have been void for uncertainty under any circumstances. And, inasmuch as Smith was not put in possession by Leslie, and went upon another farm for a year, and then went on this land without any further communication, the contract being void ab initio, we cannot see any legal basis for holding that he can be regarded as ever having had any possession which could be referred to it. Leslie denies the whole arrangement; but, upon Smith’s own showing, there was nothing which could avail him under it.
The judgment must be reversed, with costs, and a nev trial granted.