Stowell v. Ames

148 Mich. 439 | Mich. | 1907

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 back 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 such a case. Plaintiff voluntarily repaid to defendant money, with the idea, mistaken or otherwise, that defendant had by mistake paid him, plaintiff, too much. He now seeks to recover back the money upon the theory that he was mistaken in supposing that defendant had overpaid him. If, in fact, defendant had misapprehended what he was buying, it was very proper for plaintiff to offer to rescind the sale, or, if he did not care to do that, to repay him his money; the inference being that defendant had paid too much. If, in fact, there was no misunderstanding on the part of defendant, he should have refused the money. He obtained it fraudulently, and should now refund it. We are therefore of opinion that the testimony of defendant that he supposed he was buying the entire, 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 announced. No deception was practiced. Defendant knew the wheat was grown on land not belonging to plaintiff. The bids for the first piece proceeded with raises of five cents an acre, and, defendant 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 some .of the time. Defendant testified: “ When we went back, we were figuring up on a shingle, as we walked back down the 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 owners, concerning the interest he was buying. That defendant did 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 the money to defendant was confused about the mathematics of the transaction seems clear. He 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 cannot say, however, as matter of law, that defendant did not suppose he was buying the entire interest. And after 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, after 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 charge 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 portion 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 amount involved is very small, and this fact 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 defendant was not mistaken about either the price bid per acre or the interest sold, but about the proper 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.