Stowell v. Ames
111 N.W. 1070
Mich.
1907
Check Treatment
Ostrander, J.

(after stating the facts). If defendant was claiming, in a direct proceeding to enforce his bid, or in one brought by him to recover baсk money he had paid, that the bid was made under a misunderstanding for which neither the owner nor the auctioneer were responsible, we should be obliged to consider whether the matter was open to him. Vanleer v. Fain, 6 Humph. (Tenn.) 104. But this is not suсh a case. Plaintiff voluntarily repaid to defendant money, with the idea, mistaken or otherwise, that ‍​‌​‌‌​‌‌‌‌‌​​‌‌‌​​​​‌‌​‌​‌‌​​‌‌​‌​‌​‌​​​​​‌​‌‌​​‍defendаnt had by mistake paid him, plaintiff, too much. He now seeks to recover back the money upon the theory that he was mistaken in sup*444posing that defendant had overpaid him. If, in fact, defendant had misapprehendеd what he was buying, it was very proper for plaintiff to offer to rescind the sale, or, if he did not care to dо that, to repay him his money; the inference being that defendant had paid too much. If, in fact, there was nо misunderstanding on the part of defendant, he should have refused the money. He obtained it fraudulently, and should now rеfund it. We are therefore of opinion that the testimony of defendant that he supposed he was buying the entirе, and not a half, interest in ‍​‌​‌‌​‌‌‌‌‌​​‌‌‌​​​​‌‌​‌​‌‌​​‌‌​‌​‌​‌​​​​​‌​‌‌​​‍the wheat, was properly admitted. For the same reasons the refusal to charge the jury as requested by defendant was not error.

A brief reference to some of the testimony will aid us here. It is not disputed that plaintiff owned only a half interest in the wheat, and that the handbills and the auctioneer so аnnounced. No deception was practiced. Defendant knew the wheat was grown on land not belоnging to plaintiff. The bids for the first piece proceeded with raises of five cents an acre, and, defеndant says, had reached “ pretty near up to $4 when I went out there. * * * I think I made about three bids, but it was not more than three.” No one else misunderstood what interest was being sold. The first piece having been struck off to defendant, the second piece was immediately offered, and that he bid in at $4.10 an acre. ' A deposit was made as required by the terms of sale. Later he went with Mr. Fry, who owned the land upon which was the wheat last sold, and with his aid measured the wheat on both parcels; Mr. Atwood, who owned the other piece of land, being with them sоme .of the time. Defendant testified: “ When we went back, we were figuring up on a shingle, as we walked back down thе road.” As a result defendant paid $81 for this wheat. He says he supposed he was buying the entire interest in the wheat, that he was not otherwise informed, and that he made no inquiry of plaintiff, the auctioneer, or the land ownеrs, concerning the interest he was buying. That defendant *445did not, by a bid of five cents an acre above those who were bidding for a half interest in the wheat, acquire the entire interest fairly may not be disputed. That plaintiff in returning thе money to defendant was confused about the mathematics of the transaction seems clear. Hе testified that defendant never claimed he supposed he had bought all of the wheat until he gave his testimony in justice’s court. And defendant’s testimony is, in part, that upon plaintiff telling him that a mistake had been made he replied, and made no other claim in relation to it, “Well, if it is as you say, I am entitled to half the money back. ” We сannot say, however, ‍​‌​‌‌​‌‌‌‌‌​​‌‌‌​​​​‌‌​‌​‌‌​​‌‌​‌​‌​‌​​​​​‌​‌‌​​‍as matter of law, that defendant did not suppose he was buying the entire interest. And aftеr a careful reading of the record we are unable to say there was no testimony tending to prove an intelligent accommodation upon the basis of defendant’s claim. That defendant offered, aftеr the money was repaid to him, to annul the sale, and that he offered to pay back one-half of the $41, and that these offers were refused by plaintiff, is undisputed. No criticism is made of the paragraph of the сharge last above quoted. The charge permits the jury to find an accommodation, if they also find a good-faith claim of defendant assented to by defendant.

The fifth assignment of error relates to a portiоn of the charge referred to in the foregoing statement of facts in which the court advised the jury that if defendant understood he was purchasing the entire of the wheat, there was no valid sale. It is said in the main brief for appellant that this could only have confused the jury, and in the reply brief that it permitted the jury 'to find there was no sale because of the failure of minds to meet. As we understand the objection, it is disposed of by what has been said.

We have thus answered, against the precise claims presented, all of the contentions of appellant save one. Should ‍​‌​‌‌​‌‌‌‌‌​​‌‌‌​​​​‌‌​‌​‌‌​​‌‌​‌​‌​‌​​​​​‌​‌‌​​‍the verdict have been set aside and a new trial granted ? The amоunt involved is very small, and this *446fact might to some extent affect judicial discretion. But the evidence is so convincing that defendant knew what interest he was buying in the wheat, and it is so clear that plaintiff in returning the money to defendаnt was not mistaken about either the price bid per acre or the interest sold, but about the propеr mathematical calculation of what should be paid for it, the evidence of anything in the nature of a compromise of any differences is so meager, and that of a miscarriage of justice so strong, we are constrained to overrule the decision of the trial court, reverse the judgment, and order a new trial.

McAlvay, C. J., and Carpenter, Grant, ‍​‌​‌‌​‌‌‌‌‌​​‌‌‌​​​​‌‌​‌​‌‌​​‌‌​‌​‌​‌​​​​​‌​‌‌​​‍and Blair, JJ., concurred.