99 Mich. 165 | Mich. | 1894
Claimant filed three claims against this
First, it is claimed that in 1887 claimant held a contract in writing from Dr. Lyster, of Detroit, for the purchase of certain lands at $30 a foot front, the contract amounting at that price to $7,080. She had paid $50 down, when, by the advice of Mr. Woolfenden, she released her contract, and permitted her vendor to make a contract with William T. De Graff. Under this contract it is claimed that Mr. Woolfenden was to share with De Graff, and that they were to pay to Dr. Lyster $30 a foot front, the same as claimant was to pay; but the land was to cost De Graff and Woolfenden $32 a foot front, or $472 more than Dr. Lyster was getting, which was to be given to claimant as compensation for releasing her contract. On the trial in the circuit court the claimant sought to make proof of this arrangement.
Mr. De Graff was called as a witness for the claimant, and testified that in the latter part of 1887 he and Mr. Woolfenden agreed orally to purchase some lots on Farnsworth street from 'Dr.. Lyster at $32 a foot front. The land had a frontage of 236 feet. They were to pay in equal shares, and the first payment was to be $2,052. He paid Mr. Woolfenden his share, $1,026, at the time the contract was made. The contract was made to Mr. De Graff at the suggestion of Mr. Woolfenden, who did all the business. A deed was afterwards given by Dr. Lyster to De Graff and Woolfenden. Witness knew nothing about claimant in the transaction. In connection with this testimony, claimant offered the De Graff contract and the deed in evidence. The contract shows that the purchase was made by De Graff, and the deed conveys the premises to De Graff and Woolfenden. Two letters were also offered in evidence, — one from Mr. Woolfenden to Dr.
Mrs. Raymond, the claimant, was called as a witness in her own behalf, and testified, that she made a contract with Mr. McLaughlin for the purchase of certain lots on Farnsworth street in 1887; that the contract was in writing, and signed by Mr. -McLaughlin; that, the last she knew of the contract, it was with Mr. Woolfenden's papers; that all her papers were with Mr. Woolfenden's papers; that she had made diligent search for the contract, but was unable to find it; that she had asked for the papers, but they had not been turned over. Witness was then asked to state the contents of the paper. This was objected to on the ground that the loss of the paper had not been proved, and that, if it existed, that fact was as. well known to Mr. Woolfenden as to the witness. The-court held the testimony incompetent, saying that the witness was a party in interest. Proof was then made of a,-, demand upon the attorneys for the estate for the paper,’ but they denied having it.
Mr. McLaughlin was called as a witness for claimant, and testified that in 1887 he made a contract for Dr. Lyster, to claimant, for these lands, at $30 a foot front for-236 feet frontage on Farnsworth street; that the first payment was to be $1,580, and a receipt was given for $50. Claimant was then recalled, and testified, without objec
This is substantially all the testimony given by claimant ■on the first claim, and, upon this evidence, counsel for her asked the court to charge the jury that if they found “that the claimant, Mrs. Raymond, sold to Mr. Woolfenden and De Graff, or released, for their benefit, at their request, all of her interest in the Farnsworth-street property, for the sum of $472, or $2 per foot, then she is entitled to recover said purchase price, unless the defendant estate has shown by a preponderance of testimony that she has been paid therefor.” The court, in its general charge, after detailing the circumstances of the transfer of this property, said:
“Now, gentlemen, has this lady satisfied you by a preponderance of evidence that there is anything coming to her on this assignment of this property? With that I have nothing to do. That is entirely for you to say.”
In some other parts of the charge the court referred to this particular claim, making the following remarks, u]Don which error is assigned:
“ There is one thing you must not lose sight of: Mrs. .Raymond did not ever get a deed for this property, and we do not know of any reason why she never fulfilled it. It might be possible she wanted to lose her $50.”
Also:
“ I do not believe there is one in this court-room knows why she did not accept that deed. She did not tell us why, — not a single word about it.”
The other claim set up relates to other property sold by claimant, a part of the proceeds from which, she alleges, came into the hands of the deceased. This question was fully gone into on the trial, and payments shown from deceased to the claimant; the defense claiming that whatever moneys came into deceased’s hands, belonging to claimant, he had paid over to her. The whole subject of the amount of moneys coming into his_ hands, and the amount of payments, was submitted to the jury, and they found adversely to the claimant. We find no error in this part of the case.
Judgment reversed, and new trial ordered.