186 Mich. 233 | Mich. | 1915
This is an action in assumpsit, brought by plaintiff against, defendant in justice’s
Briefly stated, the facts in the case are as follows: Plaintiff, at that time residing in Detroit, desired to move to Ypsilanti to keep house and attend school. On August 30, 1912, she went to that place in company with her brother, and inquired at the office of defendant’s agent, Mr. Wortley, who was in the real estate business, for property which would suit her. He gave her the keys to the north half of a double house which belonged to defendant, which, after inspection, she decided to rent, agreeing to pay $14 a month, she to take possession September 15th following, when rent was to begin. To close the contract she paid the agent $5 on rent account, for which he gave her a receipt. She then went back to Detroit to pack her furniture and get ready to move. Two weeks later, when the goods were ready to ship, plaintiff sent a note to that effect to Mr. Wortley, the agent from whom she rented the premises. She was at once informed by him that the owner of the house repudiated the contract and refused to give possession. Her two brothers went from Detroit to Ypsilanti for her to ascertain the trouble and, interviewing defendant, found that she absolutely refused to let her have the house. She then offered plaintiff’s brothers two of the rooms in the house at $7 a month, which, when reported to plaintiff, she agreed to take if defendant would let her have them. She then proceeded to unpack her furniture and repacked enough for the two
The first, second and third errors assigned and relied upon by defendant are the reasons upon which the motion for a new trial, which was made by defendant, was based, viz., that the verdict and judgment were against the weight of ' testimony in the case; that the matter at issue was frivolous and speculative and no proper damages were proven; that the case was without merit; that the court erred in denying defendant’s motion for a new trial.
An examination of the record satisfies us that the verdict and judgment were not against the weight of the evidence; also that the matter at issue was not frivolous and speculative, and that proper damages were proven.
' The ground for a new trial upon which defendant placed great reliance related to an argument made by counsel for plaintiff upon the motion for security for costs heard before the jury was called, which it is claimed occurred in the presence of all the jurors. There is no claim made that this argument was improper, but that the jurors, having heard it, were
“When the jury was impaneled in the above cause they were fully examined by counsel for the defendant for their competency to sit as jurors in said cause. They were fully examined as to their knowledge or as to any prejudice that any of them might have in said cause, and if any challenge or objection had been made, the court would have carefully considered the same. At the close of such examination, counsel expressed themselves as satisfied with said jury, and in my opinion a fair, just, and impartial trial was had.”
A further reason urged for granting a new trial was that neither the justice nor the circuit court acquired jurisdiction, for the reason that no security for costs was required of plaintiff in either court. This question was before the circuit court upon the motion for security for costs which, in his judicial discretion, was denied by the court; it appearing from the affidavit of plaintiff that she had been a resident of Washtenaw county since September 24, 1912.
For the reasons above given the foregoing three assignments of error are without merit.
The remaining assignments of error relate to the refusal of the court to give certain requests of defendant and to portions of the charge as given. The court was requested to charge, as follows:
“The burden of the proof is on the plaintiff. She must establish her case by a fair preponderance of evidence (and where the testimony is evenly balanced your verdict should be for the defendant).”
Upon the question of burden of proof the court charged:
“This is a civil case, and the burden of proof is on the plaintiff to establish her case by what we call & fair preponderance of the evidence.”
Error is also assigned on the refusal to give requests to charge, as follows:
“(1) If you find that the rental of the north side of the house was settled and merged in a new contract in Mr. Wortley’s office by which the plaintiff was to take the two rooms upstairs, then the plaintiff cannot collect upon the old contract, but must rely upon the new.”
And further:
“(2) If you find that it was the agreement that the rent was to be paid in advance and occupancy given the 15th of September, before the plaintiff can recover she must show that she paid, or tendered payment, for the rent in compliance with her contract.”
And further:
“(5) If you find, after the first abandonment by the plaintiff of her contract, that the minds of the parties never again met, then the plaintiff cannot recover.”
The portions of these requests to which defendant was entitled are covered by the charge of the court, as follows:
“The defendant insists that there was a substitute for the said original contract, that the former contract was merged into the second agreement, and that this second agreement has. never been fulfilled on the part of the plaintiff, and therefore the defendant is not culpable in this matter, and that the plaintiff has no right to complain, and therefore the plaintiff can*239 not recover in this action. If from the evidence you find that the defendant is sustained in her view, then the defendant will be entitled to your verdict; but it is the contention of the plaintiff that the defendant utterly refused to carry out the original agreement made by Mr. Wortley with the plaintiff, and that finally, as a compromise, and in settlement of their troubles, she, the plaintiff, did enter into the second agreement with the defendant respecting a lease of a part of the said house, which agreement was intended to be a substitute for the first agreement, but it is the claim and contention of the plaintiff that the defendant finally receded even from the second agreement, and so changed and modified it that the plaintiff was compelled to, and did in fact, utterly refuse to accept such modified and changed substitute. Now, if from the evidence you find that this contention on the part of plaintiff is true, then it is a complete answer and reply to the claim on the part of the defendant.”
As to the second of these requests relative to no tender being made, it was properly refused because defendant on her return to Ypsilanti refused to recognize the agreement made by plaintiff with Mr. Wortley and repudiated it, and again did the same thing in her interview with plaintiff’s brothers. No tender was necessary.
The third request, refused by the court, defendant was not entitled to. It was covered by the portion of the charge of the court above quoted. It is undisputed that defendant absolutely refused to carry out the agreement made with defendant’s agent, Wortley, and offered plaintiff, in lieu thereof, two or three rooms as a substitute, but withdrew that offer at once through Mr. Wortley by telephone; that when plaintiff came to inquire about it, defendant absolutely refused to let her have the rooms; therefore all consideration for release from the first agreement, if there was a release, failed.
Defendant assigns error upon the refusal to charge, as requested, the following:
*240 “If you find that she was to take possession on the 15th of September, and that the defendant was willing to give her possession on the 26th, her damages would be what accrued between the 15th and 26th.”
This is based upon the offer made by defendant to plaintiff at their last interview, when defendant repeated to her the withdrawal of her offer to let her have the rooms which had already been telephoned to her by Mr. Wortley. This was properly refused, because it did not state the correct measure of damages. The record shows, among other things, that before the 15th she had been to considerable expense in packing her goods and in unpacking them, in cartage, and in sending her brothers to Ypsilanti from Detroit and for storage.
The remaining assignments of error are to portions of the charge as given by the court, being the first four paragraphs, amounting to two-thirds of the entire charge. The third and fourth of these have already been quoted in this opinion, supra. The first is the opening of the charge, giving a statement of the claim of plaintiff, and the second paragraph being a general statement that if the jury found such claim established by the evidence, she was entitled to recover, “unless the defendant has established a full explanation and excuse for such breach of contract on her part.”
No error was committed by the court in these portions of the charge given, nor do we find any prejudicial error in the case.
The judgment of the circuit court is affirmed.