author: Christiancy J.

text:
    Joseph M. Martin v. Elijah Hamlin.

      Agreement; Parol evidence: Peed: Pescription: Mistake as to legal effect. Complainant entered into a verbal agreement with defendant to purchase of him a farm occupied by him, and well known to both: but which had never been surveyed. A few days prior 10 the execution of the deed and mortgage and notes for purchase money, defendant verbally represented the land to complainant as containing 110 acres, and that he would warrant that quantity; and it was also verbally agreed that complainant should get the land surveyed, and it the amount fell short, the deficiency should be endorsed on the mortgage.
    The description in the deed, a warranty, was according to the government subdivisions, and it called for 110 acres.
    No fraud or mistake is charged by complainant. Upon a survey made some months after, a deficiency of 16J- acres was discovered.
    In a bill to compel defendant to endorse upon the mortgage the amount of said deficiency:

      Held, that the verbal • agreement was merged in the deed, and, must, in the absence of fraud, be presumed to contain all the terms finally agreed upon.

      Held further, that the said parol agreement would contradict‘and vary the notes and mortgage, given by complainant, as part of said transaction, and that this rule of evidence applies as well in equity as at law.
    Mistake as to the legal effect of an instrument', constitutes no ground of relief.

      Heard April 30.

      Decided May 4.

    Appeal in Chancery, from Oakland Circuit.
    The bill in this case was filed to compel' the defendant to indorse certain moneys upon a note and mortgage given for the payment of the purchase money of premises purchased of defendant, by reason of an. alleged deficiency in the number of acres supposed to have been bought.
    It appeared that complainant bought of defendant a farm described in the deed to complainant as the “West part of the northwest quarter of section thirty-two, in township three, north of range eleven east, except ten acres off the west side. And also the south half of the west half of the northeast quarter of section thirty-two in said town, all lying and being in the township of Avon, in the county of Oakland, and' State of Michigan, containing one hundred and ten acres of land.”
    The bill alleges that the purchase and the deed were made in pursuance of a bargain, or understanding, that complainant should pay $4,200 for the farm (part cash and part on time,) provided that defendant would warrant the farm to contain 110 acres, which it is alleged the defendant agreed to. That the deed was made, in pursuance of this understanding or agreement; that at the time the deed was executed and delivered, complainant paid defendant $2,700, and it was at the same time agreed that complainant should at some future time get the farm surveyed and the quantity ascertained; that, to secure the balance of the purchase money, it was agreed complainant should execute a mortgage upon the premises, and that complainant, at the request of the defendant did, on the same day, execute to defendant a mortgage for $1,500, and three promissory notes secured thereby, for $500 each, payable respectively, Oct. 1, 1865, Oct. A, 1866, and Oct. 1, 1867; the defendant agreeing at the same time that complainant might go on and get the farm surveyed, and that, if it fell short of 110 acres, defendant would endorse upon the notes and mortgage the deficiency (at the rate of 110 acres for $4,200 ); and the parties further agreeing that, if the farm should overrun, complainant should pay for the excess at the same rate.

      That complainant went into, and has continued in possession ; that, some time afterwards, complainant caused the farm to be surveyed by the county surveyor, and that the amount upon such survey was ascertained to be only 931-acres ; that defendant now refuses to allow or endorse the amount corresponding to such deficiency.
    The bill therefore prays that defendant may be decreed to make such endorsement.
    The defendant, by his answer, denies any such agreement as alleged in the bill, or any agreement except what appears by the deed, mortgage, and notes, or that he, in any way, undertook to guaranty the quantity.
    The prayer of the bill was granted.

      M. K Crofoot, for complainant.
    It is claimed that the case stated and made by complainant is not one of equitable relief.
    We place our right to relief upon three grounds:

      ■a. Mistake of the parties as to quantity, and, therefore, as to consideration, which we claim to have corrected.

      1. The right of the complainant to have the amount indorsed and applied upon the notes and mortgage, and thus remove an incumbrance to that amount on his land — to remove it to that amount as a cloud upon his free title.

      c. That the complainant has a right to have the application made, and thus abate so much of the mortgage; and to have the amount endorsed, and thus compel the defendant to specifically perform his agreement.
    1. The bill clearly shows that the defendant made a statement as to quantity, viz: 110 acres, when there was but 93-J- acres, and in this a misstatement as to that amount : Not a fraudulent representation, but a misrepresentation upon which the complainant relied.
    It can make no difference with this right to equitable relief, that the representations amounted also to a warranty.
    Relief from such misrepresentations is within the jurisdiction of courts of equity, and is treated of as compensation for deficiency. — 1 Sugden o.n Vend. 6th Am. 10th Bond. Ed. chap. 3, entitled, Of defects in' the quantity of the estate; See also notes 372 to 374; Willard’s Equity, ¶. 72; Hill v. Buckley, 17 Vesey, 395, Ifil, 40®, 403; Winch v. Winchester, 1 Vesey and Beames, 375; Belknap v. Seeley, 2 Buer, N. Y. 570; Young "v. Craig, 2 Bibb, Ky. 270; Reynolds v. Vance, 4 Id. 215; Marvin v. Bennet, 8 Paige, 312; Id. 26 Wend. 169; Stebbins v. Eddy, 4 Mason C. G. 4^4-

      a. The relief is only granted when there is an agreement as to quantity: and quantity formed an essential element of the contract.
    When this appears, the right to relief in equity is unquestioned.
    But if it be uncertain, from the agreement, that the vendee relied upon the statements of the vendor as to quantity; or that he waived it by accepting a conveyance with qualifying words; or that the land was conveyed and accepted ‘by metes and bounds, then there is no ground for relief. Such are the facts disclosed in Reynolds v. Vance, 4 Bibb, 215; Boat v. Puff, 3 Barb. 353; Jackson v. McConnell, 19 Wend, 175; Ketclmm v. Stout, 20 Ohio, 453.

    It cannot be claimed that this land was conveyed by metes and bounds; therefore, the description of quantity is immaterial. The term used in. the deed is “ the east part of the northwest quarter.”
    No inference can therefore be drawn from the deed that the words of quantity were not the words of the contract.

      b. It has been held, in some of the cases, that it was necessary to allege, and to show fraudulent representations; but the more recent cases follow the case of Hill v. Buckley, holding that when a misrepresentation was made as to quantity, though innocently, the vendee is entitled to relief by way of an abatement, or a recovery of the consideration, although no fraud is alleged or shown. — Hill v. Bv,ckley,

      17 Vesey, 895, 101-2; Marvin v. Bennett, 8 Paige, 312, 311, 815; Id. 26 Wend. 169; Chancellor’s opinion, Id. 172; Yerplanck’s opinion, 181; Eetchum v. Stout, 20 Ohio, 158, 159, 160; Belknap v. Seeley, 2 Duer, H. Y. 570; Emmett’s opinion, Id. 578, 580-1; Daniel v. Mitchell, 1 Story, 172; ■Young v. Craig, 2 Biíb, 270-1.

    2. We claim that the complainant had a right to have this cloud removed as a lien on his land, for these reasons:

      a. It was important to him, as he had bargained his land away to sell subject to the incumbrance, to know the extent of incumbrance.

      b. He feared Hamlin would transfer the notes and mortgage to prevent this application. He therefore had a right to resort to a court of equity for relief. ■ — • Willard’s Equity, 302 to 807; Hamilton v. Cummings, 1 Johns. Ch. 522.

      c. The complainant has a right to the specific performance of the agreement.
    And the question of deficiency in quantity is treated under this head in Adams’ Equity, Sd Am. Ed. p. 270 to 278; §§ 89, 90, 91; Willard’s Equity, 278, 271, ■ ®75, 288, 289; Gillespie v. Moon, 2 Johns. Ch. 599; Eessel, brack v. Livingston, 1 Id. 118; Coles v. Botone, 10 Paige, 538.

    2. The main point insisted upon in the court below, and which we suppose will be here, is that parol proof cannot be introduced to vary or explain a written contract, or deed; that the covenants in the deed do not at all apply to the quantity; that the quantity expressed in the deed is merely descriptive of the land.
    We claim that the proof offered was only an inquiry into the consideration of the mortgage and the deed; and whatever, may appear to have been the rule heretofore, by the numerous authorities cited by the counsel for the defendant, this court has expressly adjudicated upon this
      point. — Robinson v. Cromelien, 15 Mich. 816; Bennett v. Beidler, 16 Id. 150; Bowker v. Johnson, 17 Id. 1¡2.

      A. C. Baldwin, for defendant.
    On the face of the bill, the party is not entitled to relief. If there was a mistake in the preparation of the deed, complainant should have taken steps to have it reformed.
    The complainant’s evidence in this case assumes to show that the verbal contract, if any, was made before the writings were drawn; that the land was to be surveyed, and the deficiency to be applied on the notes. The rule is well settled, both in law and equity, that all conversations, and all prior contracts of the parties are merged in the first written agreement.— Street v. Bow, Har. Ch. 428; Oelricks v. Ford, 28 How. U. 8. 49; Stevens v. Oooper, 1 Johns. Oh. R. 4%9; 5 Mich. 222, 204; Grosier v. Acer, 7 Paige, 141; Cook v. Combs, 89 N. H. 598; Austin v. Sawyer, 9 Bovi. 89; Stackpole v. Arnold. 11 Mass. 80; Bix v. Otis, 5 Pickering, 88; Conner v. Coffin, 22 N. H. (2 Foster) 548; Noble v. Bosworth, 19 Pick. 814; Powell v. Edmunds, 12 East. 6; Hoyt v. French, 24 N. II. 199; Lang v. Johnson, 24 N. H. 802, Hoxie v. Hodges, 1 Oregon, 251; Richardson v. Comstock 21 Ark. 69; Underwood v. Simonds, 12 Met. 278; 7, Wis. 582; Adams v. Wilson, 12 Met. 128; Oskaloosa College v. Stafford, 14 Iowa, 152; 2 Pars, on bills, 501-2-8.

    But it may be said the principle, in equity, is different. The rule is the same: ,
    “And the rule that an absolute note cannot be varied by evidence, is held in equity as in law.” — Pars, on bills 502; Wesley v. Thomas, 6 Harris & Johns. 28; Chetwood v. Britton, 1 Green. Ch. 489; King v. Baldwin, 2 Johns. Ch. 557, 58; Eveleth v. Wilson, 15' Maine, 109; Richardson v. Thompson, 1 Humph. 154-5.

      But it may be insisted that this was an independent agreement, distinct from any of the writings, to have the land surveyed, and that the defendant would then pay a pro-rata sum per acre for the deficiency. If so, the contract was void by the statute of frauds. — 2 Comp. Laws, § 8177.

    No part of this assumed contract was put in writing. No reference was made to it in any of the papers prepared, and a studied silence preserved while these papers were in process of construction. If such a parol contract was made, it was a portion of the original arrangement between the parties, and as such, cannot be valid — part parol and part written. If it were a valid parol agreement, the complainant has an adequate remedy at law, and cannot revert to a court of equity for aid.
    Pending the negotiation, prior to the delivery of the deed, as the contract was not in writing, either could recede at pleasure. Then if the complainant acce}3t a deed, it will be held conclusive that the whole- contract was embraced therein. — Houghtaling v. Lewis, 10 Johns, 297; Mwmford v. McPherson, 1 Johns. IH> 8 Id. 506, 10 Id. 297; Schemmerhorn v. Vanderheyden, 1 Johns. HO; Howlson v. Barlcer, 8 Johns. 506.

    The notes in this case were for the payment of five hundred dollars each at the time fixed; and it is sought to annul the same by a prior and parol agreement.
    “ It is a firmly settled principle,” says Parsons, “ that parol evidence of an oral agreement, alleged to have been made at the time of the drawing, making or indorsing of a bill, or note, cannot be permitted to vary, or qualify, or contradict, to add to, or subtract from, the absolute terms of the written contract.” — 2 Pars, on Bills, 501.

    And “ the rule that an absolute note cannot be varied by evidence, is held in equity as in law.” — 2 Pars, on Bills, 505, 506; Gozaway v. Moon, Harper & Sarg. Jfil;

      Broad v. White, 1 Ala. 436; Featherston v. Wilson, 4 Id. 154; Gregory v. Hart, 7 Wis. 582.

   Christiancy J.

The agreement set up in the bill in reference to a guarantee of the quantity of land, a survey of the'premises, and-an endorsement to be made on the mortgage for any deficiency, was, if any such existed, wholly verbal. Whether such verbal agreement was ever made, is a question upon which the evidence is conflicting, and much of it directly contradictory, leaving the question open to considerable doubt. But, without going at all into the question of the weight of the evidence, we propose to consider the case in the most favorable aspect to the complainant, which the testimony on his own part will warrant.

The case as presented by the evidence on the part of the complainant, including his own, is substantially this:

The defendant was residing on the farm at the time of the sale, and had resided there for some twenty-five years. Complainant and his father, who aided him in the negotiation, had also been acquainted with the premises for many years. There is no pretence on the part of complainant, that the actual boundaries of the land were not known by, and visible to, all the parties. But the defendant had never had it .surveyed. At the time of the verbal arrangement for the sale, two or three, days before the papers were executed, the defendant represented the land as containing one hundred and ten' acres, and said he would warrant it to contain that quantity; and complainant thereupon, verbally agreed to purchase the farm, and pay four thousand two hundred dollars for it, if there should be that amount of land. This verbal arrangement was made at the defendant’s house on the-premises; and the parties were to go in a day or two after to Pontiac, and have the writings drawn. They met at Pontiac accordingly for that purpose. Mr. Car-hart, a justice of the peace, was employed at the suggestion of the defendant to draw the papers — a deed from defendant to complainant, and notes and a mortgage upon the land for part of the purchase money, and an assignment by the complainant to the defendant of another mortgage received as part of the purchase money.

Immediately before the papers were drawn, as the parties were going up into Carhart’s office for the purpose, on, or at the foot of the stairs, a conversation was had between the parties in which it was verbally agreed, that complainant should or might get the' land surveyed by the county surveyor, and if it fell short (of 110 acres,) an amount proportioned to such deficiency should be endorsed on the first payment to be secured by the mortgage complainant was to give for fifteen hundred dollars of the purchase money. If the land should overrun, complainant was to pay for the excess at the same rate, though it is not stated how or when. The parties then went into the office, and while Carhart was drawing the deed of the farm, the defendant wished him to insert the words “more or less” after the words at the close of the description, “containing one hundred and ten acres.” But to this, complainant’s father, acting on his behalf (though he was himself present,) objected; because they did not know, as he says, how much land there was, and they were to have it surveyed, or, as stated by the father in his testimony, “because the complainant had nothing but the defendant’s word for the amount of land, but expected one hundred and ten acres.” The verbal agreement was not stated to the justice, or in his presence. The deed was drawn without the words “more or less,” and the complainant executed his three promissory .notes for $500 each, and a mortgage upon the farm to the defendant securing the notes; having paid him in cash and by the assignment of a mortgage, the balance of the $4,200. Complainant says he delivered his mortgage and notes, relying upon the understanding above stated. The papers were exchanged. Complainant received the deed, and went into possession. No written agreement was executed or seems to have been contemplated by either of the parties as to • the survey or the endorsement of any deficiency.

Upon survey made some months after by the county surveyor, the farm was found to contain but ninety-three and a half acres: and the defendant being called' upon to endorse the deficiency, refused.

From this statement, it is clear:

1st. That the verbal agreement, if made as claimed by the complainant, constituted, while the matter remained in parol, a part of the terms of the entire contract of purchase and sale.

2d. That the papers drawn by Carhart, and executed by the parties, together with the payment of a part of the purchase money, were intended and understood by both parties as the consummation of the sale by the one, and the purchase by the other.

3d. That the omission to insert in the deed or mortgage, or a separate instrument, any stipulation with reference to a survey to be had of the land, or the allowance or endorsement for deficiency, was not the result of any mistake of fact, or of inadvertence from the subject not occurring to the mind of the complainant; but that the subject of such survey and deficiency was present to his mind during the drawing of the papers, and that the deed was drawn without the words “ more or less,” with the idea that it would operate as a guaranty of the quantity. That the parties knew the contents of all the papers executed; that all were executed and exchanged without any oversight or mistake of fact, in the very form intended by all the parties, and that they contained all that the parties intended should be contained in any written evidence of the transaction between them.

It is not denied that, upon the face of the papers executed, and according to their legal effect, the complainant took the farm at his own risk as to quantity. — Roat v. Puff, 3 Barb. 553, and cases there cited. If in accepting the deed and exchanging papers, he did not intentionally abandon all claim of compensation for deficiency, he must have relied either, first, upon the quantity mentioned in the deed as a guaranty, or second, wholly upon the contemporaneous verbal agreement, or third, upon both together.

If he relied upon the first, it was a mistake of the legal effect of the instrument, the contents of which he knew — purely a mistake of law. This is no ground for relief. — See Irnham v. Child, 1 Bro. C. C. 92; Townsend v. Stangroom, 6 Ves. 328, 332; Worrall v. Jacob, 3 Meriv. 267, 271; Hunt v. Rousmaniere, 1 Pet. S. C. R. 1; 2 Mason, 366; Gilbert v. Gilbert, 9 Barb. 532; Arthur v. Arthur, 10 Barb. 9; Farley v. Bryant, 32 Me. 474; Mellish v. Robertson, 25 Vt608.

He can have no relief upon the ground of the verbal agreement alone, or in connection with the deed; because, first, to say nothing of the statute of frauds, it was a part of an entire contract for the sale of the land, made immediately preceding, and contemporaneous with the deed and other papers executed in consummation of the sale, and related to its very terms. It was, therefore, merged in, or cut off by the deed and other writings by which the sale was consummated, and which must, in the absence of fraud, be presumed to contain all the terms finally agreed upon.— Street v. Dow, Harr. Ch. 429; Stevens v. Cooper, 1 Johns. Ch. 429; Stark. Ev. 660 to 665; 1 Greenleaf's Ev. Sec. 275; Cowen and Hills notes to Phil. Ev. Note, 948; and see especially Broughton v. Coffer, 18 Gratt. 184.

2d. Because the parol agreement would tend to contradict and vary the notes and mortgage given by complainant at the same time as a part of the same transaction.— Jones v. Phelps, 5 Mich. 222; Adair v. Adair, Id. 204; Stevens v. Cooper, ubi supra; Cook v. Combs, 39 N. H. 593; Oelricks v. Ford, 23 How. U. S. 49; Crosier v. Acer, 7 Paige, 141; Austin v. Sawyer, 9 Cow. 39, 49; Dix v. Otis, 5 Pick. 38; Powell v. Edmunds, 12 East. 6; Noble v. Bosworth, 19 Pick. 314; Conner v. Coffin, 22 N. H. 542-4; Gregory v. Hart, 7 Wis. 532 ; Hoyt v. French, 24 N. H. 199; Lang v. Johnson, Id. 302; Hoxie v. Hodges, 1 Oregon, 251; Underwood v. Simonds, 12 Metc. 278; Adams v. Wilson, Id. 138; Richardson v. Comstock, 21 Ark. 69; Oskaloosa College v. Stafford, 14 Iowa, 152; Parsons on Bills and Notes, 501, 503.

And this rule applies as well in equity as at law.— Wesley v. Thomas, 6 Har. and Johns. 24; Chetwood v. Brittain, 1 Green Ch. 439; King v. Baldwin, 2 Johns. Ch. 557 and 558; Eveleth v. Wilson, 15 Me. 109; Richardson v. Thompson, 1 Humph. 154.

The cases of compensation for deficiency, relied upon by complainant’s counsel, are mainly those arising upon contracts of sale or purchase not yet carried into effect, by the execution of the final conveyance and other writings essential to its completion; and where the vendor has filed his bill for the execution of the contract, and the defendant has set up fraud, or mistake in quantity, or the omission in the writing, of terms verbally agreed upon, or a parol variation or discharge (as in Winch v. Winchester, 1 Vesey & Beames, 375, and other cases mentioned in Story’s Eq. Jur. Sec. 170,) or, when the bill has been filed by the purchaser for the execution of the contract, for so much as the vendor is able to convey, or for so much as there is of the land (fraudulently represented by the vendor, and believed by the purchaser to contain more,) and for compensation for the deficiency, as in Hill v. Buckley, 17 Ves. 395, upon which complainants’ counsel relies. Bills for specific performance in such cases, and defences thereto, stand upon principles so essentially different from those involved in the present case, as to require no comment.

Belknap v. Sealey, 2 Duer, 570, cited by complainant’s counsel, was an action in the nature of a bill in equity, brought by the purchaser to rescind a contract for the purchase of land on the ground of a fraudulent representation of quantity, and sustained on the ground of mutual mistake. One of the express grounds upon which relief was giren, as appears by the opinion of Emmett J., was that the contract or sale was yet in fieri, and therefore strictly within the equitable powers of the court.

It is true courts hare not laid it down as an absolute rule that no relief shall be giren for a deficiency, when the contract has been carried into effect by a deed. Marvin v. Bennett, 26 Wend. 169, was a bill brought for relief on this ground, after conreyance of the land and mortgage giren back; and it was held that the bill could only be sustained on the ground of mistake or fraud, neither of which was established in that case, and the relief was denied.

The court recognized the fact that much stronger and clearer evidence is required of the mistake in such cases, than when the matter rests in contract of sale, and seem to think the evidence must be such as to remove all doubt; and they hold, in that case, that complainant’s attention haring been distinctly called to the question of quantity, and of a guaranty upon that subject, and baring-accepted the deed without such guaranty, and executed the notes and mortgage, took the chance of a deficiency or excess, and must be held virtually to have abandoned any claim for deficiency.

In the case now before us, no fraud is imputed to the defendant. The parties dealt with each other upon equal terms. There was no mistake in the execution of the papers intended to be executed. And by accepting the deed, executing the notes and mortgage, a'nd going into possession under the deed, with full knowledge of the contents of all the papers, and the question of deficiency present to Ms mind, and 'without asMng for any written evidence of the supposed parol understanding, we think the whole contract must be conclusively presumed to be embraced in the papers executed. See Howes v. Barker, 3 Johns. 506; Schermerhorn v. Vanderheyden, 1 Johns. 140; Houghtailing v. Lewis, 10 Johns. 297; Mumford v. McPherson, 1 Johns, 414; Broughton v. Coffer, 18 Gratton, 184. We think the alleged verbal agreement in this case stands upon no better ground than would a parol reservation of growing crops on the land conveyed.

The decree of the court below must he reversed, with costs, and the hill dismissed.

The other Justices concurred.


source: Caselaw Access Project

author: Campbell J.

license: Public Domain

text:
    Henry Bower v. Thomas Earl.

      Conveyances: Construction of description. Where a deed conveys lots in a town and refers to a plat to identify them, and in describing their lines calls the points of compass as designated on the plat by its lines and angles, a correct survey cannot he based upon any other system; and although the lines there delineated are not conformable to the true meridian, the plat, and not the compass, should govern.

      Evidence: Statements by grantor in disparagement of title. Where certain statements were made hy a prior grantor, while in possession of certain premises, concerning the extent of his holding and the place of the dividing line between him and his neighbor, in a trial of title where a subsequent grantee was a party: held, that while they could not prove he actual title, they were competent to explain the nature and extent of said grantor’s possession, as being part of the res gestes.

      Gi'ant of part of a large tract: Change of possession: Evidence of ownership* When there has been an actual delivery oí possession of premises given by a grantor to the grantee, purporting to he for the purpose of carrying the grant into effect, and when such premises delivered are hut a portion of a larger tract owned hy the grantor, his retention up to a certain line, and his surrender beyond it, indicate that he claimed ownership to that boundary, as the true line of the grant, and denies his grantor’s title to all within it.

      Change of possession: Occupancy: Adverse possession: Undisputed tenancy. In such case the retention of the part not delivered is a distinct occupancy, and as a possession, stands on the same footing as if held by any other person than the grantor. « A right of action would at once arise in favor of the grantee claiming such land against such occupant; and that right, where the latter does not in the interval admit it in fact, or by implication of law, would become barred by the lapse of the statutory period of limitation.
    Where possession has been thus held for the statutory period, unless it is shown to have been virtually a. tenancy undisputed by the tenant at some time in the interval, the bar is complete.

      Acquiescence as to possession. The acquiescence which will prevent the running of the statute must be that of the possessor in the owner’s claim, and not that of the owner in a possession not acknowledged to be held under him.
    Acquiescence which is merely inaction on the part of a claimant, is the very thing which the statute contemplates as creating the limitation which cuts off the right of action.

      Heard April 27th.

      Decided May 4th.

    Error to Washtenaw Circuit.
    •This was an action, of ejectment''for a strip of land, part of lot .No. 8, in the city of Ann Arbor. The entire lot belonged to Edward Munday in 1834, who, July 18, 1842, conveyed to Mulford and Peter Martin a portion of the same, commencing on Main street at the northeast corner of said lot, and running on Main street 21 feet south, thence west to the alley in the rear of said lot, thence north to the north line of said lot, and thence east to the place of beginning. The plaintiff became the owner of this title through several mesne conveyances. The title to the remainder of lot 8 continued in Mundy until his death, and his devisee, by deed dated December 23, 1863, conveyed to the defendant a portion of said lot described as follows: beginning 21 feet south of the northeast corner of lot No. 8, thence south 23|- feet on Main street, thence west parallel with the north line of said lot, 52 feet, .thence south 9-| feet, thence west to the west line of said lot; thence north on the west line of said lot 33 feet, thence east to the place of beginning.
    The testimony tended to show that before the conveyance to the Martins two stores had been erected on the lot; that the deed to them covered the land on which the north store was situated, and a portion of the premises covered by the south store. That the Martins and their grantees have held possession of the north store ever since the conveyance to them in July, 1842; and Mundy and his devisee and grantee have occupied the south store during the whole of that time. The land in dispute in the suit is that portion of the lot which is covered by the deed to the Martins, but which has been ever since occupied by Mundy, his devisee, and Earl the grantee of said devisee.
    The defence was based on the continued occupancy by Mundy and his successors.
    William C. Voorhees, on the part of the defendant below, stated that -he occupied the north store under the Martins, having leased it of Mundy, acting as their agent, although the witness had no knowledge of any authority except that he said he was agent. That while so occupying, he built an addition to the store for the Martins, thirty feet in length, in the rear of the store. The witness was permitted to testify, “ Mundy pointed out where to build it, and said that was the line, and that this new wall to be a party wall when an addition should be built to the store now occupied by the defendant.”
    Witness further testified, under objection, that he claimed and occupied under his deed of the premises, “the store and the land to the alley, the width of the store.”
    The court charged the jury that if the premises, described in the declaration, passed by the deed from Edward Mundy and wife to Mulford and Peter Marlin, and said Mundy and his grantees continued to occupy the same after said conveyance, for the term of twenty years, with the acquiescence of said Martins and their grantees in such occupancy, then such occupancy and acquiescence are a bar to the récovery of the plaintiff in this suit; to which plaintiff excepted. The counsel for plaintiff then requested the court to charge the jury (if adverse possession was relied upon as a defence,) that if the premises in dispute passed by the conveyance from Edward Mundy and wife to Mulford and Peter Martin, and said Edward Mundy remained in possession thereof after the conveyance, .such possession would not of itself be adverse to said Mulford and Peter Martin or their grantees; which the said court refused, and to which plaintiff excepted.
    A verdict was rendered for defendant.

      A. Fetch, for plaintiff in error.
    1. The title to the land could not pass by any parol statement even of the Martins themselves. A deed of conveyance alone could divest the Martins of their title.

      a. Such a statement could not operate as an estoppel, because it is not claimed - that it was ever acted upon, or that • Mundy or his devisee or grantee did anything or suffered anything in consequence of it, or was ignorant of the true line, or Avas deceived by the other party. # Smith’s Leading Gases, 745, 748,; 767, 768.

      b. If any effect could be given to these sayings or acts of Mundy, it would be to transfer back to himself as the owner of the adjoining land, by his own utterance of a feAV words, the title to the land which he had conveyed to the Martins by warranty deed.

      c. But even if Mundy had had full authority from the Martins to sell and convey their land or any portion of it, the most solemn deed made to himself under the power, would be invalid. He cannot do by simple parol statement what he could not do by the most formal deed of conveyance.
    2. The witness, Voorhes, testified that he purchased the premises then. occupied by the plaintiff, Bower. The counsel for the defendant below then asked the witness this question: “What did you claim and occupy under your deed of these premises ?
    A grantee may occupy less than the entire premises without losing any right in the property. He may be mistaken in the lines of his premises, and both occupy and claim less than he is entitled to, Avithout losing his title to any land that is actually covered by his deed. The title cannot be thus transferred by an owner, nor can another person acquire his land in such a case without a deed of conveyance, or such adverse possession as bars the right of the owner.
    3. The third error assigned is to the charge of the court in the following words: “If th.e premises described in the declaration passed by the deed from Edward Mundy and wife to Mulford and Peter Martin, and said Mundy and his .grantees continued to occupy the same after said conveyance for the term of twenty years, with the acquiescence of said Martins and their grantees, then such occupancy and acquiescence are a bar to the recovery of the plaintiff in this suit.”
    Title by occupancy was recognized in the old books, but it existed only in case of a tenancy during the life of another person, and has long since become obsolete.— 2 Washb. on B. Prop. 4-57.

    Acquiescence in the occupancy of land by another implies consent — a tacit permission to occupy, and precludes the idea of opposition or a holding adverse to the will of the owner or in denial of his title.
    Neither occupancy alone, nor occupancy with acquiescence of the owner can give title. The solemnity of a deed of conveyance to pass real estate is not dispensed with by either or both of these.
    Where doubt exists in the description contained in a deed or monuments which are lost, the declaration or acquiescence of parties are admissible, not to contradict the deed, but to show where, in truth, lost or uncertain monuments were. But for the purpose of transferring title, a conveyance in writing as required by law cannot be dispensed with. — Olarlc v. Withey, 19 Wend. 820; Terry v. G handler, 16 N. T. 854; Tolman v. Bparhawh, 5 Mete. 476.

    Even in New York it is held that if the starting point can be found, and the lines' accurately run and determined by the courses and distances of the deed, the boundaries must be . settled by the terms of the deed, and cannot be altered or effected by parol evidence.— Waugh v. Waugh, 28 N. Y. 9If.

    And that it is not competent to establish a new line by parol agreement. — Vosburgh v. Tealor, 82 Id. 561.

    The bar of 20 years recognized by the statute is not given to occupancy and acquiescence, but to a possession of the disputed premises, which, to be available, must be an actual, continued, visible, notorious, distinct and hostile possession. — 2 Smith’s Leading Gases, 687, et seq.

    4. The fourth assignment of error is upon the refusal of the judge to charge the jury on the question of adverse possession that “if the premises in dispute passed by the conveyance from Edward Mundy and wife to Mulford and Peter Martin, and said Edward Mundy remained in the possession thereof after the conveyance, such possession would not of itself be adverse to said Mulford and Peter Martin or their grantees.”
    The correctness of the principle involved in the charge requested, seems to be fully settled by judicial decisions. —Bloomer v. Henderson, 8 Mich. 895 ; Dawson v. The Dan-bury Bank, 15 Id. 189; Jackson v. Burton, 1 Wend. 81/.1 ; Swart v. Service, 21 Id. 86.

      M. McKernon, for defendant in error.
    1. The admission of the witness, Mundy, was offered for the sole and exclusive purpose of showing, first, what was the understanding and intention of the parties to the conveyance made a short time before, and while they were carrying it out in practice. And second, for the purpose of showing what, and how much, Mundy did claim at that time. And, third, for the purpose of showing that the understanding was mutual, and acted upon by both parties at that time, and up to the very commencement of this action. And, fourth, for the purpose of rebutting tbe inferences that might be drawn by the court or jury from the testimony of the surveyor, Professor Wood. This was competent.
    The intentions of the parties to a conveyance can always be shown.
    So also declarations of persons made while in possession of property, are admissible, and even (as in this case,) long after their decease. — Pilce v. Hays, 15 N. H. 19; Stewart v. Hanson, 85 Maine, 506; Young v. Adams, II B. Monroe, 182; Nelson v. Iverson, 17 Alabama, 216 ; Wooster v. Butter, 18 Conn. 809; 1 Qreenleaf on Hv. §§ 109, 110.

    As to the second error assigned, we claim that the ruling of the court below was clearly correct, because:
    While we admit that a man may occupy less than he owns, we also insist that his claim, and occupancy of all that he does claim, is very good evidence of the extent of his right, as well as of how the line in question was understood at that time by the parties in question.
    It shows that the parties had put their own construction upon these deeds, and had all occupied accordingly.
    All such constructions should be respected by courts, unless there is fraud alleged and proven; 'neither of which was done in this case.
    Besides, it proves and establishes the fact, that all the occupants understood and intended that the word “east” was to be taken as meaning east, according to the plat referred to in the deeds, and given in evidence. — 28 Vt. 185.

    3. As to the third error assigned.
    Occupancy has at all times been recognized as evidence of ownership, and the acquiescence of others, renders that evidence absolute.
    But where the acquiescence and occupation is by adjoining owners in relation to the boundaries of their respective lands, it surely must be conclusive upon them and their grantees. — Brown v. Edson, 28 Verm.' 486; Rockwell v. Adams, 6 Wend. 467; Same case, on Error, 16 Id. 286/ 2 Hilliard on Real Prop. SpS p. 86, 8d Ed.

      a. This was not a change of title by mere parol, but it was the settlement of a boundary, both by acquiescence and occupation, as well as through the operation of the statute of limitations.

      b. It may be' claimed that title cannot be acquired by occupation alone, but we insist that the Statute of Limitations of this State requires only occupation to bar a claim of right. — 2 Comp. Laws, 1408.

    4. In relation to the fourth error assigned by the plaintiff’s counsel (the refusal of the judge to charge in relation to adverse possession,) we have this to say:

      a. There was no such matter of defence set up on the trial, and no such matter appears in the bill, only as it was drawn in by the plaintiff’s counsel.

      b. And if this matter is to be insisted upon at the argument in this court, we claim that the Statute of Limitations of this State does not recognize the doctrine of adverse possession, and that such a state of affairs cannot arise under it.

      c. Again, whatever authorities (if any) may be cited by the learned counsel for the plaintiff, we claim that they are not applicable to this matter, having arisen under statutes that recognize the doctrine of adverse possession, which the statutes of this State do not.
   Campbell J.

Bower brought ejectment against Earl, to recover a small gore of land, having a width of six inches in front, on Main street, Ann Arbor, and widening at the rear to three feet. Bower’s alleged title was derived by mesne conveyances through William C. Voorhees and William Tibbals, from Mulford Martin and Peter Martin, who purchased of Edward Mundy. The description in the deed from Mundy was as follows: “Being all of that portion of village lot number eight, of range number three, and block number one north of Huron street, beginning on Main street, at the northeast corner of said village lot, and running on Main street aforesaid twenty-one feet south; thence west to the alley in the rear of said lot; thence north to the north line of said lot; and thence east to the place of beginning, with the brick store thereon standing.” Defendant also claimed by purchase from Mundy’s estate of the remainder, or most of the remainder of lot eight. The controversy was whether the gore was covered by the description.

From the testimony of the surveyor who undertook to locate the land on the trial, this gore was made by taking a line due west, and not at right angles with Main street, whereas the defendant claimed that the lines should have been run at right angles, which would have made the description a regular parallelogram, and which would also make it correspond with the building referred to in the deed. The testimony showed that Mundy sold by this description to the Martins, in 1842, and that he and his grantees had retained possession ever since, up to the store line, which defendant claims to be the true boundary. The questions raised on the trial all grew out of matters explaining this possession, or connected with it.

It is quite manifest that some of the difficulties supposed to exist in this case have arisen from the erroneous theory on which the surveyor proceeded; and as the questions of possession are more or less connected with the situation of the lines, we cannot overlook this element in considering the case as presented on the exceptions. The surveyor, after ascertaining in some way what is supposed to be the northeast corner of the lot, assumed that the first course, of twenty-one feet, should run due south, the next one due west. But, having reached the -alley, he followed that, although not in a north and south line, to the northwest corner of the lot, and did not run the north line, which, if run due east from the northwest corner, would not have reached the place of beginning.

The description in the deed requires the direction which it calls south, to coincide with Main street, and the direction it calls north to coincide, .with the alley-parallel thereto; and the north line of the lot is said to run east from the northwest corner to the northeast corner. The plat, which is admitted by stipulation as genuine, shows that the lines of lot eight run at right angles with Main street, and that the whole system is rectangular. Inasmuch as the deed refers to the plat, and calls the points of the ¶ compass in accordance with its lines and angles, no survey could be correctly based on any other system; and if, as seems to be the case, the lines are not true meridian or east and west lines, the plat and not the compass should govern. The legal construction cannot be varied, and the guides which the parties chose to indicate and follow, must not be disregarded in the construction of their deeds.

It is a matter of some doubt whether the admitted facts do not render the whole controversy on the exceptions irrelevant; but as the questions raised may possibly be material on any other dispute of location (although the finding c(oes not seem to leave much else open to controversy), we shall proceed to consider them.

Errors are assigned upon the admission of the declar- . ations of Edward Mundy, and of Yoorhees, touching their claims concerning the extent of their ownership. Mundy’s statements were made to Yoorhees, when the latter was building a" store upon their lot for the Martins, and upon that occasion he pointed out where it should be built, and said that was the line, and that the new wall was to be a party wall, when an addition should be built to the store now occupied by defendant. The statement of Yoorhees, which was objected to, was, that when m possession, lie only claimed and occupied the store and the land to the alley the width of the store. These statements were objected to as attempts to create title by parol.

They, certainly, could not be any proof of title. But they were introduced for no such purpose. They were properly received to explain the nature of Mundy’s pos. session, and were receivable on the same principle which allows statements as part of res gestee. They create no right, but simply explain a fact, which is not in itself conclusive of anything, and . which derives its legal1 character from its intent and circumstances. Voorhees’ claim while in possession was in disparagement of his own title to the strip in the suit; but we agree with Mr. Greenleaf, that such statements and claims to explain possession are admissible for what they are worth, whether in disparagement of title or not. — 1 Greenl. Ev. § 109.

The court charged the jury that if the premises in question passed, by the deed from Mundy to the Martins, and Mundy and his grantees continued after the conveyance to occupy the same for twenty years, with the acquiescence of the Martins and their grantees in such occupancy, then such occupancy and acquiescence would be a bar to recovery in this suit. And the court refused to charge that if Mundy so remained in possession, such possession would not of itself be adverse.

Counsel for plaintiff in error relied upon Bloomer v. Henderson, 8 Mich. 395, and Dawson v. Danbury Bank, 15 Mich, 489, to show that where a grantor remains in possession after conveyance, he is to be regarded as holding under his grantee, and not by any other claim. Those cases hold that such possession held without change, after a conveyance, is not notice of any other claim as against third persons; but they do not hold that it is incompatible with any other right as against the grantee, if any such right exists, and is not inconsistent in fact with the existence of the grant. But where there has been an actual change of possession given by the grantor to the grantee, which purports to be for the purpose of carrying the grant into effect, and where the premises granted are a portion of a larger tract owned by the grantor, his retention up to a certain line, and his surrender beyond it, would naturally indicate that he claimed ownership to that boundary. Where there is an actual change, and the grantee is only admitted within certain lines, the retention of the rest is a distinct occupancy, and, as a possession, stands on the same footing as if held by any other person than the grantor. A right of action would at once arise against the occupant, and that right, where the latter does not in the interval admit it in fact, or by implication of law, would be barred by the lapse of the statutory period of limitation. Where possession has been thus held for that period, it must be shown to have been virtually a tenancy undisputed, at some time in the interval, or the bar is complete. The acquiescence which will prevent the running of the statute, must be that of the possessor in the owner’s claim, and not that of the owner in a possession not acknowledged to be held under him. Acquiescence, which is merely inaction, is the very thing which the statute contemplates as creating the limitation which cuts off the right. As in this case, the evidence showed nothing whatever to contradict the claim or holding of Mundy and his grantees, the plaintiff had no right to the charge refused, which was, under the circumstances, an abstract proposition, and of no importance upon the inquiry before the jury.

The judgment should be affirmed, with costs.

The other Justices concurred.


text:
    Samuel E. Peters v. Philip Christa.

      Heard and Decided May 4.
    Appeal in Chancery, from Wayne Circuit.
    The bill in this cause was filed for the purpose of dissolving a partnership, and having an account taken.
    It was dismissed on the hearing.

      Ward Palmer, for complainant.

      B. T. Prentiss, for defendant.
   This case rests entirely upon the facts. The decree of the court below, dismissing the bill of complaint was affirmed, with costs.


text:
    Tobias Shurtz v. John Palmer and Another.

      Heard April 28.

      Decided May 4.

    Appeal in Chancery, from Branch Circuit.
    The bill in this cause was filed for the purpose of declaring a certain deed void, and a decree was granted in favor of complainant, with a modification of the relief prayed for.

      H. H. Riley and Geo. A. Goe, for complainant.

      D. Darwin Hughes, for defendant.
   The court, after reviewing the evidence, decided that the decree should be affirmed, with costs.


author: Per Curiam:

text:
    Ann L. Ball v. Darius M. Ball.
    Appeal, when, dismissed: Duty of appellant as to filing return. When a party is in default in filing the return to an appeal, and instead of complying with the rule when his attention is called to his default, resists a motion to dismiss, on technical grounds, the court will not aid him — it "being a matter of indulgence on their part, and to "be exercised only when the defaulting party compile* with the rule, after notice.

      Heard and Decided May 5.

    Appeal in Chancery, from Jackson Circuit.
    Motion to dismiss.
    Complainant obtained a divorce in the court below, and defendant, in October last, took an appeal. The return should have been filed before the last January term, but it was not so filed. A motion was then made to dismiss, but was not granted. The motion was renewed at the present term, but failed because the notice of the motion was one day too short. A new notice was then given, and when the motion was called up on Tuesday the defendant, for the first time, produced the return. His excuse for not filing it before was that he was using the record for the purpose of having it printed for use on the argument, but he did not show when he commenced using it for that purpose, nor how much of it had been printed, nor whether any of it had been. He insisted, however, that under the 'prior decisions of the court, an appeal will not be dismissed, because the return was not made in time, if it is actually made before the motion to dismiss is argued.

      J. G. Wood, for the motion.

      W. AT. Gibson, contra.
   Per Curiam:

Where the court declina to dismiss an appeal where a party has been in default, it is a matter of indulgence, and it is only done because the party^ when his attention is called to the matter by the motion to dismiss, has at once filed the return. In this case, the party, instead of filing the return as soon as his attention was called to it, has taken advantage of such technical objections as were open to him to avoid a dismissal, without complying with the practice, and he is therefore not entitled to indulgence. The excuse made is vague and unsatisfactory, and cannot be accepted as sufficient. The motion to dismiss must be granted, with costs.


author: Per Curiam.

text:
    James Kelly v. John McKenna.

      Set off: Pleading and evidence: Instruction of jury by court. Plaintiff below declared upon a special contract for services performed, and also under the common counts.
    After introducing evidence tending to prove the special contract he rested, and defendant offered evidence, under his notice of set off, of certain moneys received by plaintiff for him — but which was rejected.
    On the conclusion of the testimony, plaintiff withdrew all claim under the common counts. — Jury found for plaintiff.
    The rejection of the set off was erroneous. Plaintiff having given evidence pertinent to the issue under the common counts-, the proof was admissible when offered, and as the finding was-one which might have rested on the com. mon counts, it was the duty of the court to instruct the jury how to distinguish the evidence applicable to the special and common counts respectively, so as to confine their attention to the proof under the special count. This not having been done, it will not be presumed that the error in refusing evidence of the set off was cured by withdrawing the common counts.

      Evidence: Copy of letter: Admissions. When a defendant testifying admits that an alleged copy of a letter written by him was substantially correct, it is equivalent to an^admission by him, of the fact, and becomes original evidence.

      Heard May 8th.

      Decided May 12th.

    Error to Wayne Circuit.
    Tbis was an action of assumpsit, brought to recover tbe value of services rendered upon a vessel.
    The declaration set forth the terms of an alleged contract in two special counts. The common counts were also added. The defendant pleaded the general issue, with notice of set off, as follows:

      “Tate notice that the following is a bill of particulars of the defendant’s set off in this case, to wit:
    Spring of 1864— To cash carried to Chicago by plaintiff for defendant, $3,000, out of which the plaintiff kept $100, and never accounted for it $100 00
    Pall of 1864 — To overcharges of the sayl plaintiff for sailing the Corinthian, as master, during the season of 1864. - - -...... 300 00
    To cash received by the plaintiff from the defendant’s wife, the same belonging to the defendant, - 120 00
    $520 00”
    On the part of the defense, the plaintiff below being called as a witness, was shown a paper purporting to be a copy of a letter written by him to one Bruce, and relating to said vessel; after reading it, he testified that it was a correct copy in its leading points.
    The plaintiff’s counsel objected to its introduction, on the ground that the original must "be produced, and also that the testimony was immaterial. The court rejected it.
    Defendant below then offered evidence to sustain his set off. The evidence was rejected, whereupon plaintiff withdrew all claim to recover, under the common counts.
    Judgment was rendered for' plaintiff.

      8. Lamed and F. A. Balcer, for plaintiff in error.
    1. The first question raised in this case is whether the court below erred in refusing to allow the defendant to prove a set-off. The plaintiff’s declaration contains two special counts in assumpsit, each setting up an express contract and alleging damages generally, for an alleged breach of the same by the defendant. It also contains the general or common counts. The defendant pleaded the general issue, and gave notice of set off; and, at the trial, he sought to prove a demand against the plaintiff, which was the proper subject of a set-off. But it was contended, and the court below held, that the plaintiff’s cause of action or demand, was itself incapable 'of being set-off, and that, therefore, under the statute, such a defense could not be made. The precise question, then, to be determined, is whether the plaintiff’s cause of action is such that it could be the subject of a set-off. — 2 Comp. L. § 4180, subd. 2.

    The plaintiff declares specially, but it is well settled that the statute of set-off cannot be avoided by declaring specially for that which can be recovered on the common counts. — Birch v. Depeyster,. 4 Gamp. 885; Burgess v. Tuclcer, 5 Johns. 105; Downer v. Eggleston, 15 Wend. 51.

    The plaintiff was entitled to recover on the common counts alone. It is considered a well established rule that, where an agreement has been performed by the plaintiff, and a duty is imposed on the defendant to pay the amount due, in money, a recovery may be had on the general count, although there was a special contract. — Felton v. Dickinson, 10 Mass. 287; Canal Go. v. Knapp, 9 Peters, 541.

    In the present case, the plaintiff having served a part of the season, and being willing to serve the residue, in contemplation of law may he not be considered to have served the whole ? — Qandell v. Pontigny, 4 Gamp. 876; Collins v. Price, 5 Bing. 182; Eardly v. Price, 5 B. & B 888.

    The alleged contract was for the whole season of navigation, and the plaintiff was not guilty of any violation of that agreement, for he did all that the law required him to do. — Costigan v. M. & H. R. R. Go. 2 Denio, 609; Jones v. Jones, 2 Swan, (Tenn.) 605; King v. Bteiren, 44 Penn. St. 99.

    Of course he was bound, when discharged by the defendant, to seek, or at least to accept employment from other parties, and to make the best use of his time. — Sherman v. Champ. Trans. Go. 81 Vt. 162.

    If the plaintiff, using reasonable diligence, had been unable to obtain employment elsewhere, and had laid out of a situation the balance of the season, he certainly could have recovered the contract price for the whole term.

      So that the term of employment having expired, the contract was fully performed by the plaintiff, and a duty imposed on the defendant to pay the amount due, which could have been ascertained under the common counts of the plaintiff’s declaration, the same as in any other case of mutual account between principal and agent.
    But admitting that it was necessary for the plaintiff to declare specially for the breach of the alleged contract by the defendant, yet the testimony offered was admissible; for, if the plaintiff had failed to recover on his special counts, then he would have been entitled to a verdict upon the common counts for what the two or three weeks of actual service were reasonably worth. — Keys v. Stone, 5 Mass. 891; Tuttle v. Mayo, 7 ' Johns. 182; Linningdale v. Livingstone, 10 Johns. 86; Smith v. Warner, 16 Mich. 896.

    We submit that the Circuit Judge should have admitted the testimony in evidence, and, if requested so to do, to have instructed the jury that if they found for the plaintiff on the common counts to allow the set-off, but that if they found for the plaintiff on the special counts, that then a set-off was not permissible.

      2. The copy of the letter of McKenna to Bruce, dated Detroit, May 21, 1866, was material and relevant, and it was competent to introduce the copy.

      a. It was material and relevant, because, when taken in connection with the letter of McKenna to Kelley, dated Buffalo, January 17, 1866, it tended to^impeach the credibility of the plaintiff.

      b. It was competent, because the plaintiff, after reading it, testified that it was a correct copy1 in its leading points.

      Moore & Griffin, for defendant in error.
    The first five assignments of error are based upon the theory of the plaintiff’s counsel, that he was entitled to a set-off
    The court below was right in excluding testimony upon that point. — Smith v. Warner, 14 Mich. 162; Smith v. Warner, 16 Id. 390.

    It was incompetent to introduce the copy of the letter mentioned in the seventh assignment of error. It was also irrelevant.
    The court charged the jury, that if they found that a contract for the season was made, but no price fixed, the plaintiff is entitled to recover, at the rate of such sum as the jury believe, from the evidence, his services were reasonably worth per year, for the time he was out of employment. This was correct. — Collins v. Vendever, 1 Clark, (Iowa) 573; 1 Pars, on Con. 448; 2 Id. 44> 515; Sykes v. Dixon, 9 Adolph, and IS. 693.

   Per Curiam.

In this case, the declaration contained two special counts, and also the common counts. The special counts set up a contract between the parties, for the employment of -Mc-Kenna by Kelley, as master of a schooner for the season of navigation; that McKenna entered upon the service, and continued about three weeks, when he was dismissed by Kelley, who refused to keep- him any longer. Kelley pleaded the general issue, with notice of set-off. On the trial, Mc-Kenna, who was the plaintiff below, gave evidence tending to show the contract set up in the special counts; that he entered upon service under the contract, and, at the end of about three weeks, was dismissed 'by Kelley, who refused to be bound by, or recognize the contract. McKenna having rested his case, Kelley offered evidence of set-off under his notice, but this was excluded by the court, under an objection by McKenna’s counsel, that his demand was incapable of being set off, and that, consequently, the set-off proposed by Kelly was inadmissible.

When the testimony on both sides was concluded, the counsel for McKenna withdrew all claims to recover under the common counts. The exclusion of the evidence of set-off, when it occurred, was clearly erroneous, and this being so, it is incumbent upon defendant in error to show that it was cured, or rendered harmless by what occurred subsequently. He. insists that this is shown by the withdrawal of all claim to recover under the common counts. But we cannot presume that the jury were sufficiently informed, without instructions from the court, to enable them to distinguish the evidence to be applied to the special counts from that which would apply to the common counts, and since the plaintiff below had given evidence which was pertinent to the issue on the common counts, and it does not appear that the Circuit Judge gave the jury any instructions on the subject, but left them at liberty to find a verdict under the common counts, and since the verdict is entirely consistent with the theory that the finding was for the three weeks service under the general count, we cannot assume that the error in refusing Kelly’s evidence' was corrected or rendered harmless.

The copy of the letter written by McKenna to Bruce should have been admitted. The defendant testified that it was in its leading points a correct copy of a letter he had written to Bruce. This evidence of .McKenna converted the contents of the paper as to its leading points into admissions by him, and made them original evidence. It was of no consequence that the paper was a copy of a letter he had written. When he made its contents identical with his declaration, the paper became an original for the purpose of showing his declaration to Bruce; and it was relevant, as it bore upon the state of the accounts between the parties.

There must be a new trial in consequence of the errors which have been stated; but as the other questions raised by the assignment of errors, will not be likely to arise in a future trial, we deem it unnecessary to consider them.

Judgment reversed with costs.

The other Justices concurred.


text:
    Addison P. Cook v. Mary Bell.

      Depositions: Objections as to form: Notice. When notice of the filing of a depo- • eition has been given, objections as to form cannot be made at the hearing. — Circuit Court Rule, 5U. It is only in the absence of such notice, that objection can be made on the trial.

      Deposition: Endwsement of retuim on commission. When the return to a deposition, taken under a commission, was written upon one of the sheets appended by the commissioner, instead of being endorsed upon the commission: Held* sufficient. The papers may be considered as a single document consisting of various parts, and as well identified in one way as another. — 9 Comp. L. § 5950.

      Chose in action: Land contact: Assignee. A written .contract for the sale of land is' such a chose in action as can be sued by tbe assignee in his own name.
    The statute reaches every right in property which was ever assignable in equity, or capable of survivorship to executors. — Comp. L. %U159; Cess. L. 1863 p. 102; Final y. Backus, p 918. . \

      Statute of frauds: Contract: Alteration by Parol. Where, under the statute of frauds, a contract would be void unless in writing, such contract when written, cannot be altered by parol. — Abel v. Munson, p. 306. '

      Heard May 8th.

      Decided May 12th.
    Error to Jackson Circuit.
    This was an action brought to recover damages for a failure to perform the conditions of a certain contract for the sale of real estate.
    Judgment was rendered in favor of plaintiff below.
    The facts are stated in the opinion.

      G. T. Gridley, and Jno. D'.. Gonely, for plaintiff in error.
    1. The court erred in admitting parol evidence, tending' to show an extension of the time mentioned in the written contract for the payment of the money. — -Comp. Laws, §§ 3177, 3179, and cases hereinafter cited.
    2. The deposition of Harriet Bell should have been excluded.— Comp. Laws, Sec. JfiSO, 4th subdivision. “ The return of the commissioner shall be endorsed on the commission.”
    In this case the return was endorsed on one of the sheets of the depositions.
    3. The court should have charged that if the jury should find that there was a parol agreement for an extension of the written contract, the plaintiff cannot recover upon such parol agreement, because the same is not in writing.

      a. A contract under seal cannot be varied by parol.— Littler v. Holland, 8 Term, 590; Blood v. Goodrich, 9 Wend• 68, 78; Delacroix v. Buckley, 18 Id. 71, 78; Allen v. Jaquish, 21 Id. 628; Eddy v. Graves, 28 Id. 82; Sinard v. Patterson, 8 Blackf. 858, 856; Woodruff v. Dobbins, 7 Id. 582; Ghapman v. Me Grew, 20 III. 101, 101; 1 Greenl. Ev. Sec. 802.

      b. A contract required to be in writing by statute of frauds, cannot be proved partly by the -writing and partly by parol, — Goss v. Lord Nugent, 5 B. & A. p. 58, 65; 2 Nev. £ Man, 88, 31; Harvey v. Grabham, 5 A. £ E. 61, 78; Stead v. Dawber, 10 Id. 57; Marshall v. Lynn, 6 M. £ W. 109; Stowell v. Robinson, 82 E. G. L. 886; Hasbrouck v. Tappen, 15 Johns. 200; Blood v. Goodrich, 9 Wend. 68, 78; Espy v. Anderson, II Penn. State, 308, 811; Dana v. Hancock, 80 Verm. 616, 618; Emerson v. Slater, 22 How. (¡7. S.) 28, II, 12; Hansborough v. Peck, Am. 'Law Register for December, 1867, p. 79; Eddy v. Graves, 28 Wend. 82; Sugden on Vendors and Purchasers, p. 171, to 180; 2 Phillips Ev. Ith American, from 10th English edition, p. 680, and note, 197.

      c. Extension of time by parol is void. — Littler v. Holland, 3 Term, 590; Stead v. Dawber, 10 A. £ E. 57; Marshall v. Lynn, 6 M. W 109; Stowell v. Robinson, 32 E. C. L. 928; Hasbrouclc v. Tappen, 15 Johns. 200; Blood v. Goodrich, 9 ’ Wend. 68, 78.

      d. So far as any support has been derived from the case of Guff v. Penn. 1 M. £ S. 21, for the theory that there can be a valid parol extension of a contract required by the statute of frauds to be in writing, the case is regarded as overruled in England. — Goss v. Lord Nugent, 5 B. £. A. p. 58,^65, 2 Nev. £ Man. 88, SI; Harvey v. Grabham, 5 A, £ E. 61, 73; Stead £ Dawber, 10 Id. 57; Marshall

      v. Lynn, 6 M. & W. 109; Emmett v. Dewhirst, 8 McN. & G- 587.

      e. A substituted performance may often be shown. But its application is limited to cases where the party intending to perform the contract on his part was actually ready and offered to pei-form, and the other party evaded the performance or refused the money or other things to be tendered, with a declaration, or acts amounting to a declaration, that he did not intend to perform the contract on his part; or elsewhere subsequently to a breach of covenant, the covenantee agreed to accept another thing in satisfaction of his damages, which was an answer for the non-performance of the thing stipulated for. An agreement to accept another thing could not be binding if the new agreement was such as by the statute of frauds required a writing.- — ■ Borden v. Borden, 5 Mass. 67, 69, 71/; Frazier v. Cushman, IS Id. S77, 279; Seymour v. Bennet, 11/ Id. 266; Littler v. Holland, 8 Term, 590 and note; Harvey v. Grabham, 5 A. & E. 61, 78; Stead v. Dawber, 10 Id. 57; Marshall v. Lynn, 6 Mees. & Welsby, 109; Stowell v. Robinson, 82 E. O. L. 886;'.Thompson v. Brown, 7 Taunt. 656; Street v. Dow, liar. Ch. 1/27; Delacroix v. Buckley, 18 Wend. 71; 1 Greenl. Ev. Sec. 801/; 2 Id. Sec. 600, 608; Woodruff v. Dobbins, 7 Blackf. 582; Fleming v. Gilbert, 8 Johns. 580,

      b. A promise to extend the time on a contract makes a new agreement, and should be declared upon, or availed of, by way of defense as such. It is valid if in writing and signed by the party. But, if not in writing and signed by the party to be charged, our statute declares it “ void.” It has no effect either as a “ parol extension,” or as a “substituted performance,” or as a “parol agreement for a substituted performance.” The language of our statute is stronger than that of the English, for there it is “no action shall be maintained,” but here, the “ contract shall be void.” — Robinson v. Godfrey, 2 Mich. 1/08, 1/09, 1/10; Morgan v. Butterfield, 8 Id. 615, to 621¡.;

      Perm. Mining Go. v. Brady, 14 Id. 260, 264J Same 16 Id. 882, 888; Gomp. Lazos, § 8179; Lazigworthy v. Smith, 2. Wend. 687; Freeman v. Adams, 9 Johns. 115; Phillips v. Rose, 8 Johns. 898; Good v. Gheesman, 2 B. & Ad. 828; Bailey v. Johnson, 9 Gozo. 115; Stead v. Bazober, 10 A. & E. 57; Marshall v. Lynn, 6 M. & W. 109; Stozoell v. Robinson, 82 E. G. L. 886.

    4. The court erred in refusing to charge that the assignment of this contract before breach is not an assignment of a chose in action within the meaning of act No. 75, Laws 1843. — 2 Blade. Oom. 897, 898; Gillett v. Fairchild, 4 Benio, 82; Lazos of 1868, p. 102; Gomp. Laws, Sec. 4,159; Bishop Grim. Laio, Sec. 4®8-

    This contract is for the conveyance of land. At the time of the assignment the only right transferred was a right to have the land. The claim for damages did not arise till afterwards. — Buchmaster v. Eddy, Breese, 881.

      Johnson & Higby, and Bennett & Bancker, for defendant in error.
    1. If a party to a special contract partially perform on his part, and is prevented by the other from performing the- balance, he may abandon the contract and sue and recover for what he has , done or paid. — Hoagland et al. v. Moore, 2 Bladef. 167; Alcoz-n v. Harmenson, 2 Id. 285; Tozoers v. Baz-rett, 1 T. R. 188; Giles et al. v. Edwards, 7 Id. 181; 2 Stazle. Ev. 867; Ricks v. Yates, Adm 5 Ind. 115; Newcastle é Rich. R. R. Go. v. Brumback, 5 Id. 544; ® Pars, on Goht. 85; Webster v. Enfield,'5 Qillm. 298; Bordezi v.. Borden, 5 Mass. 69.

    Money paid on contract rescinded may be recovered.— Robb v. Mozitgomez-y, 20 Johns. 15; Hudson v. Swift, 20 Id. 24; Raymond et al. v. Remard, 12 Id. 274; Eldz'idge v. Rowe, 2 Gillm. 92.

    Where one has received money for another which in equity he ought not to retain, the law implies a promise to return it. — Trumbull v. Campbell, 8 Gillm. 502; Beardslee v. Horton, 8 Mich. 560.

      Z. The contract declared on in this case, is a chose in action, and the assignee has all the rights of the assignor. —1 Burr. Law Diet. 218; 2 Kent Com,. 851 and notes; 2 2 Bl. Com. 896-7.

    And this suit was properly brought in the name of the assignee. — Sess. Latos 1868, p. 102; Mann v. Herb. Co. Mut. Ins. Co. 4 Hill, 187.

    3. The time of performance of a contract in writing may be extended by a subsequent parol agreement, even though said contract be within the statute of frauds.
    And no new consideration is necessary; or if any, the original contract was sufficient. Or, as in this case, the agreement on the part of Bell to pay interest, or extra interest, was sufficient.— Wadsworth v. Thompson, 8 GiTlm. 4$>S; Keating v. Price, 1 Johns. Cases, 22; Baker v.' White-side, Breese, {III.) 174; Fleming v. Gilbert, 8 Johns. 527; Munro v. Perkins, 9 Pick. 298; 2 Pars. Cont. 574; ® Abb. Dig. 662, Ho. 770; 2 Id. 99, Ho. 886; Langworthy v. Smith, 2 Wend. 590; Borden v. Borden, 5 Mass. 69, 74; Cummings et al. v. Arnold et al. 8 Met. 486; Ten Eyck v. Waterbury, 7 Cow. 50; Erwin v. Saunders, 1 Id. 250; 1 Greenl, Ev. Sec. 804, note 4; Climer v. Hooey, 15 Mich. 24; Woollem v. Hearn, 2 Lead. Cas. in Eg. 651; Stearns v. Hall, 9 Ciosh. 81, 84; Cuff v. Penn. 1 M. & S. 21; Robinson v. Batcholder, 4 H. H. Jfi; Bicel v. Miller, 4 Id- 196.

    4. There was no error in allowing the deposition of Harriet Bell to be read in evidence. The return of the commissioner was sufficient. — Pendell v. Coon, 20 H. Y-184; Hurd v. Pendrigh, 4 Hill, 502.

   Campbell J.

Cook, the plaintiff in error, contracted in writing to sell certain lands to Henry C. Bell, a son of the defendant in error, for a sum of money, payable at fixed times by im stallments, allowing sixty days grace, and providing for the avoidance of the contract, and the right to retain payments made, in case of failure to pay as agreed. The money to make the payments actually made, was advanced to Henry O. Bell by defendant in error, and he assigned the contract to her, and Cook had notice of the assignment. • Mary Bell failed to make her payments as provided for, and there was evidence from which the jury were satisfied that a parol agreement was subsequently made to extend the time and make some new terms as to the mode of payment. Before the time as thus extended expired, Cook upon the application of Henry C. Bell conveyed the land to Marietta Bell his wife; and Mary Bell, after causing an application and offer to-pay to be made to Cook, brought this action. The jury under the charge, found for the plaintiff below, and Cook brings error upon allegations of misrulings at the trial.

Among other things, a deposition taken under commission Avas introduced, and the return, instead of being endorsed upon the commission itself, was written upon one of the sheets appended by the commissioner.

Objection Avas made to its introduction, ás not in accordance with the statute. If proper notice was given of the filing, the objection could not be made at the hearing Rule 54. It is only where no notice is given that objections of form are permitted on the trial. Knight v. Emmons, 4 Mich. R. 554. In this case, it is not alleged that any such notice was given, and it becomes necessary to decide upon the sufficiency of the return.

The Statute (2 C. L. § 4250) directs that the Commissioners “ shall annex all the depositions and exhibits to the commission, upon which their return shall be endorsed.” This language is rather ambiguous, and may refer as well to the depositions as to the commission. But Ave think no reason exists for holding to any technical construction of this direction. If we look to the reason of the thing, there would be less danger of substitution of papers, if the return should be upon the documents, instead of on the commission. But we can see no good reason why the papers should not be considered as a single document consisting of various parts, and as well identified in one way as in another. This seems to be the view of the New York Court of Appeals, under the same statute, and we concur in their conclusion. — Pendell v. Coon, 20 N. Y. 134.

It was also insisted that the court erred in holding that the contract in question was such a “chose in action” as could be sued by the assignee in her own name, under Section 4159 of the Compiled Laws,' as amended in 1863, Latos 163, ¶. 102. We have no doubt it is within the statute, which reaches every right in property which was ever assignable in equity, or capable of survivorship to executors. As this statute was explained in Final v. Backus, 18 Mich. R. decided at the present term, it is not necessary to consider it further.

The principal question, however, arose upon the validity of the parol alteration of the contract. It was an agreement to sell lands, and under the statute of frauds, would have been absolutely void at law, unless in writing, and signed by Cook. No change can be made by parol, which would not, so far as it extended, leave a part of the contract itself in a shape forbidden by the statute. The question was recently settled in Abell v. Munson, 18 Mich. R. decided at this term. The court erred in allowing proofs of the parol arrangements.

A question was suggested on the argument, under one of the requests to charge that plaintiff’s remedy was only in equity, whether she could in this action recover back upon the common counts for money had and received, the payments made before forfeiture. But the case does not appear to have been presented t& the court or jury, upon any such hypothesis, and we do not feel at liberty to examine it upon this record. .The same difficulty arose in Waldo v. Simonson, 18 Mich. R. p. 345, disposed of a few days ago, where tbe plaintiff below endeavored in this court to rely upon a supposed right of action under the common counts, when the case had been tried entirely on the special counts. As the court here sustained the right of Mrs. Bell to recover upon the special counts, and all the charges were given or refused on that basis, we have no means of knowing what view might have been taken of this point in the court below, nor what proof would have been before the jury concerning the plaintiff's interest in the retained payments.

As the case stood, no occasion had arisen to examine into that subject.

The judgment must be reversed, with costs, and a new trial granted.

The other Justices concurred.


text:
    Thomas B. Spencer v. Ebenezer W. Perry.

      Bond to pay debts: Official bonds: Penalty: Voluntary payment. The obligor of a bond, conditioned to pay all the debts of a certain firm, paid, before suit, the debts of said firm to the amount of the penal sum.
    In a suit upon said bond to recover for the debt in excess of said penalty; held,
    1. That the rights and obligations of the parties depended wholly upon the bond.
    2. That if a party choose voluntarily to perform his obligations to its full legal extent, it is equally as meritorious and effectual as though made through a suit at law.
    Such a bond is a private contract, the chief object of which, in including a penalty, was to fix the limit of the liability. The legal effect as to the extent of liability, is that of a covenant, without a penalty, to pay the debts of said firm to the amount of said penalty.
    The obligations imposed by official bonds to pay over monies, &c., are not created by the bond, but imposed by law, while the bond is but a collateral security for the performance of a legal obligation.

      Heard May 6,

      Decided May 12,

    Case Made after judgment, from Saginaw Circuit.

      This was an action of debt upon a bond, with penalty of $6,000, conditioned to pay all the debts of a certain firm.
    Judgment was rendered for plaintiff.
    The facts are stated in the opinion.

      Gage & James, for plaintiff.
    This action is upon a bond in the penal sum of six thousand dollars, given by defendant to plaintiff, without sureties.
    The condition of the bond recites that the defendant has purchased of plaintiff his right, title and interest in the business of Spencer & Newcombe, and in property described therein. •
    That part consideration was the payment by defendant of all debts, liabilities and claims of the firm of Spencer & Newcombe, and the condition of the bond is, that the defendant pay, or cause to be paid such debts and liabilities, whether notes, mortgages, contracts, book accounts or' otherwise, as and when the same become due and payable, and also save and keep harmless said Spencer therefrom.
    The plaintiff maintains his action by showing a debt of said firm unpaid by defendant, and paid by plaintiff
    The defendant sought to avoid the bond by claiming that plaintiff had misrepresented the amount of the debts of Spencer & Newcombe, and that they were much larger in amount than represented, and sought to recoup in damages by reason of such misrepresentation.
    The defendant’s counsel claimed upon the trial, that if the amount of the debts was misrepresented, the bond could be avoided, and that if defendant had paid debts to the amount of the penalty of the bond, he was thereby discharged from liability.
    1. The question raised by the pleadings in this case, viz., that the defendant was entitled to recoup in damages the amount alleged to have been sustained by him by reason of the fraudulent misrepresentations of plaintiff of the amount of debts and liabilities of Spencer & Newcombe, was a question of fact decided adversely to the defendant by the court below.
    2. Misrepresentations as to the liabilities of the firm of Spencer & Newcombe by Spencer, at time of sale, cannot be offered in evidence for the purpose of limiting or qualifying the condition of the bond. — Dorr v. Munnell, IS Johns. 430; Stevens v. Judson, 4 Wend. Dale v. Roosevelt, 9 Cow. S09; Huston v. Williams, S Blaclcf. 170; Vrooman v. Phelps, 2 Johns. 177.

    3. The bond in this case cannot be construed as a bond to pay debts and liabilities of the firm of Spencer & Newcombe, to the amount of six thousand dollars only.
    4. A bond of this character, viz., to pay money, to wit: the debts of Spencer & Newcombe, and also, to indemnify Spencer against loss, cost, and charges, by reason of the same, can only be satisfied by a full performance of the condition. A voluntary performance of part of the condition will not satisfy the bond. — 2 T. R. 388, (Dunford é East;) 1 Mass. 308; 6 Paige, Chan’y, 88; 3 Caines, 48; Hennilcer v. Wigg, 45 English Com. Law, 4 Q- B. A. & E. new series; Hancock v. Clay, S English Com. Lato, 334; % Starkie, 68; Potter v. Tiicombe, 7 Greenl. 302; Lowe v. Reers, 4 Burr. 2225.

      John J. White, for defendant.
    In this case there is but one point for the consideration of this court.
    The defendant offered evidence tending to prove that he had voluntarily paid debts spoken of in the bond sued on in this cause, to the amount of the penalty, and claimed as a defense that if such was the fact, the plaintiff could not recover against him; that' is, that in no event could the defendant be called upon to' pay under the bond in question more than the amount of the penalty. This evidence was excluded by the court. The judge ruled that, no matter if, he had paid such debts, unless he had paid all the debts spoken of in the condition of the bond, whether $5,000 or $50,000, the plaintiff could recover the amounts of all such debts paid by the plaintiff.
    If the defendant had lrom the first refused to pay any ■of the debts, and had paid none, and the plaintiff, the day after giving the bond, had been obliged to commence the payment, and had then commenced suit, he would, under our statutes — Comp. L. pp. 1221 & 1222 § J¡.509-l¡.5n — have taken judgment in form for the penalty. For all subsequent breaches, he must have proceeded under the same statute; could have had no further judgment; and the sum of all recoveries against defendant could not have exceeded the penalty of the bond. — Fraser v. Little, IS Mich. 195; Lyon v. Ciarle, 8 N. T. 15i, and cases cited.

    But, the court say, voluntary payments are very different. Although the contract is the same; although the amount of the penalty -is the same; although you have in good faith paid twice or thrice the amount of the penalty without suit, yet you have not in a single particular performed any part of the condition of your bond, and we will compel you to pay the full amount of the penalty, if there are so many debts left to be paid.
    If this is law, parties giving bonds will be pretty sure to refuse to perform such contracts, and thus by judgment of court in the first instance, ascertain and fix a limit to the extent of their liability, because after a suit on the bond for the penalty, there can be no other suit.
    The court should have considered such evidence, and given judgment for defendant, if defendant had paid debts to the amount of the penalty.
    The case of sheriff’s bond has no similarity — because all persons can sue on it — but no one can recover more than the penalty. The statute gives parties other remedies, and not any rule of the common law.
    Voluntary payments to amount of the penalty in an indemnity bond, is a full and complete satisfaction of it.— Ciarle v. Bush, 3 Cow. 151; Approved 8 N. Y. 1, Seld. 151,, and in 18 N. Y. and in IS Mich.

    The parties must be supposed to have known the amount of indemnity wanted and given, and Rhave fixed the limit, by amount of penalty.
   Christiancy J.

This was an action of debt upon a bond, with a penalty of six thousand dollars, conditioned for the payment, by defendant, of all the debts of the late firm of Spencer & Newcombe, and to indemnify the plaintiff, one of said firm, against such debts. The declaration was in the usual form, demanding the penalty of the bond. The plaintiff’s right of action, and the defendant’s obligation to pay, rested wholly upon the bond.

After the execution of the bond,- and before the bringing of the action, the defendant had paid debts of the firm to an amount exceeding the six thousand dollars — the penalty in the bond.

It is admitted that if the defendant had paid nothing upon the debts of the firm, and suit had been brought upon the bond, the amount of recovery would- had been limited to the amount of the penalty. See Comp. Laws, §§ 4509-4517.

But it is insisted that a voluntary payment, without suit, of any amount of the debts mentioned in the condition, though Exceeding the penalty, is no satisfaction of the bond. If this be so, it will certainly be for the interest of all obligors in such bonds, to pay nothing until compelled by suit. But we see no intelligible ground for any distinction in such cases between a voluntary and a compulsory payment.

If a party choose voluntarily to perform his obligation to the full extent that the law could enforce it, we are at a loss to perceive, why the payment should not be recognized as equally meritorious and effectual, as if made at the end of a law suit. See Clark v. Bush, 3 Cow. 151; Lyon v. Clark, 8 N. Y. 154, and cases there cited. The law is not so tenacious of its prerogatives as to prevent parties from performing their obligations of their own accord, without the compulsion of legal process.

We need express no opinion here upon official bonds, or those of executors, administrators, guardians, &c., which are regulated by special provisions of statute. But it is easy to see that these all stand upon grounds very different from the bond in this case, or ordinary bonds inter partes. The obligation of officers, executors, &o., to pay over and account for money coming into their hands by virtue of their office, is not created by the bond, but imposed by the law. and the bond is but a collateral security for the performance of a legal obligation not dependent upon the bond. In paying over and accounting for moneys, therefore, as required by law, the officer, executor, &c., is only performing a duty imposed upon him by the law, independent of the bond. No amount of payments, therefore, will prevent a recovery to the full extent of the penalty in case of a default to that amount. In other words the bond applies only to the sum or sums for which the party is in default, and not to sums which may have been paid over in the performance of official or legal obligation, not created by the bond.

The present bond was a contract between private parties, and one chief object of putting it in the form of a bond with a penalty, must, according to the general understanding in such cases, be supposed to have been to fix the limit beyond' which the liability of the defendant should not extend. Another object may have been to enable the obligee to enforce it, by action of debt, instead of covenant. The legal effect of the bond, as to the extent of liability, does not differ from that of a covenant, without a penalty, to pay the deb.ts of the firm to an amount not exceeding six thousand dollars. If the parties had intended to provide for a liability to an indefinite extent, to be limited only by the amount of the debts of the firm, whatever they might be; the obvious mode of creating such a liability was by a covenant to that effect without a penalty, or by making the penalty of the bond so large as, in any event, to exceed the debts, as the parties probably supposed they had done here.

We express no opinion whethér bonds conditioned for the performance of continuous acts or duties, such as for the support of another for life, or a certain number of years, or bonds for the performance of other acts than the payment of money, or indemnity against its payment, would fall within the rule here laid down. These and perhaps other particular species of bonds may be found to stand upon a different principle.

The judgment' of the Circuit Court must be reversed, with costs, and a new trial awarded.

The other Justices concurred.