author: Cooley Oh. J.

text:
    Samuel C. Kanady et al. v. William H. Burk.

      Agreement to hold stock: Default to keep margin good: Waiver. The testimony tended to show that plaintiff, on April 18,1868, employed defendants to purchase certain stock, and to hold it until he ordered it sold. That he paid $750 down, and soon after gave his check on the bank for $250 to keep the margin good; that the check was never paid, and the margin was not kept good. That defendants notified plaintiff they would sell if he did not make it good. That defendants, at plaintiffs1 request, agreed to hold the stock until the 18th oi May, in the morning; that plaintiff then called at one o’clock, at which time defendants insist that they told plaintiff he would sell; that defendants, as insisted by plaintiff, then agreed to wait until plaintiff returned from his dinner at two o’clock. Defendant sold the stock at a loss before plaintiff returned. Plaintiff returned at two o’clock, but made no tender of performance.
    The court charged the jury, that if defendant notified plaintiffs, as claimed, and that afterwards they agreed with plaintiff to wait until Monday, and that on Monday at one o’clock, another arrangement was made to wait until after the plaintiff’s dinner, that plaintiff was entitled to a reasonable time to make a sufficient deposit, and that two o’clock was such reasonable time.
    That, if the original agreement was, as insisted by the defendants, that they might sell if no margin was put up before Monday, the performance of it was waived by the agreement to wait until plaintiff returned from his dinner.

      Held, erroneous. The question was not one of waiver, but whether a distinct agreement was entered into subsequently to, and which varied the terms of the original contract, and which would preclude defendant from selling except under the new agreement. Assuming the defendant’s version of the contract, plaintiff had been in default twice. Defendants had notified him of it, and that they must sell the stock unless he made the margin good. If plaintiff acted in good faith in getting the postponement, it must have been to obtain a further de posit.
    This was an agreement then made after plaintiff was in default to delay the sale for a definite period, and to take the risk of plaintiff’s ability to protect them from loss.
    Assuming that defendants were under obligations to wait until two o’clock, it does not follow that they incurred any liability by making sale earlier, unless some further act was done by plaintiff.

      Heard April 22, 23.

      Decided April 27.

    Error to "Wayne Circuit.

      This was an action of assumpsit, brought to recover damages for an alleged breach of a contract to purchase certain shares of stock. The declaration contained special counts, and the .common counts.
    Judgment was rendered for plaintiff.
    The facts are stated in the opinion.

      L. Barlour, and Hoyt Post, for plaintiff in error.
    The court erred in fixing the measure of damages in his instructions to the jury. The plaintiff below could only recover at all upon one of three hypotheses of fact, viz:

      First. That the original contract was, as testified to by by plaintiff, viz: « That defendants, for the sum of $750, were to purchase for and on account of plaintiff one hundred shares P. M. stock, and hold the same for him until he should order them to sell.” The testimony tended to prove a breach of such a contract, if made. The court seems to have adopted the rule applicable to a contract to sell and deliver goods at some future day, certain. This was error.
    There is no just distinction between stock and merchandise in the application of the rule for damage. — Sedg. on Dam. pp. 294, 810.

    The market value on the day of the breach controls the measure of damages. The first question to be determined is, when was the contract broken. A distinction may, perhaps, be made between a contract to deliver a specific article, and one merely to deliver a certain quantity of a given class. In the former, if the vendor parts with the specified article before the day of delivery, he has broken the contract then and there, and put it beyond his power to'peform; but in the latter the contract can only be broken on the day of delivery.
    This is a contract to purchase and hold. This contract is a continuing one, and the sale of the stock was a completed and irreparable breach. Nothing but a substituted peformance was thereafter possible. The damages are to be estimated with reference to the state of things existing at the date of the breach, which, in this case, we claim was on the 18th, and not on the 26th.
    The plaintiff had notice on the 18th, at two o’clock, an hour before the sale actually occurred, that the order to sell had been sent; and immediately on the receipt of the telegram, at three o’clock, the stock had been sold'. He was notified of the fact, and a statement of his account wiih defendants was sent him.
    The contract then set up by plaintiff was broken on the 18th, instead of on the 26th, and the change in price was not the natural or proximate result of the breach of the contract. — S Mich. 55. ,
    In a contract to sell and deliver, the vendor, refusing to perform, ’retains the goods, and if the market value has risen he has compensation in the enhanced) value of the goods. But here the defendants get nothing but their commissions, and- whether the stock rises or falls in the market, they neither gain nor lose by it.
    We insist, then, that under such a contract, the only risk assumed by the defendants was, that they should sell at the market price, and that the plaintiff should have prompt notice thereof, or that they should make good the deficiency, if any, to the plaintiff.
    On the other hand, the plaintiff’s duty, upon notice of the sale, was to take all reasonable measures to protect himself from any increase of damage happening- from any future changes in price. Any change in price subsequent to his receiving notice of the sale, and after the lapse of a reasonable time in the ordinary course of business to repurchase the stock, was at his oayb risk, and not thai of the defendants. This, the evidence sIioavs, he could have done, at least, on the 19th. — Seclg. on Dam. {pth Dd.) 103; Blanchard v. Dly, %1 Wend. 31$; Darwin v. Potter, 5 Denio, 306; Miller v. Mariners’ Church, 7 Greenl. 55;

      Harden v. Dalton, 1 Gar. and Payne, 181; Davis v. Pish, 1 Iowa, lfi7; Loker v. Dam'on, . 17 Pide. %81¡.; Thompson v. Shattuch, 2 Met'. 615.

      Second. That the original contract was as testified to by defendants, and that such contract had not been varied by any subsequent agreement.
    On this hypothesis it was conceded that the plaintiff could not recover at all on the special counts, but could recover only, upon the count for money had and received, the sum admitted by defendants, in their plea, to be due him.

      Third. That the original contract was as testified to by the defendants, but that such contract was either waived by the defendants, or was varied by a subsequent agreement of the parties on the 18th.
    On the question of waiver, we insist that the extent to which the testimony tends to show anything resembling a waiver, was that of a voluntary suspension of the defendants’ right to sell, from time to time, until the 18th, and that the plaintiff acquired no new rights thereby. And no matter that defendants had theretofore, without consideration, voluntarily failed to exercise the right to sell, in the absence of any valid agreement to continue such temporary suspension .of this right, how could that affect their authority to exercise such right on the 18th, when they are no longer willing to suspend it? There was no such waiver, or agreement to waive, as could change the measure of damages.
    On the subject of the agreement, at one o’clock, to hold the stock until after dinner, or until two o’clock, we insist that this agreement, if any was made, could only be material if the original contract was as claimed by defendants, and that the measure of damages for a breach of this agreement, would be as suggested by defendants’ request to charge. Certainly such an agreement could have no relation whatever to any rule of damages based upon the value of the stock on the 26th. There was no tender or offer to perform by plaintiff after dinner.
    There was no consideration for the new agreement.— Ford v. Adams, % Barb. SJfi.

    If the contract were as defendants claimed, they had the right to sell without notice.
    In the instruction upon which the third assignment of error is based, there was error; inasmuch as it presupposes a different contract than the one the plaintiff claimed to have made.

      Moore é Oriffin, for defendant in error.
    From the testimony of Taylor, plaintiffs in error had not insisted upon a strict performance of the agreement, as they claimed it. . -
    They might have sold out the stock at once in default of the payment, “in- a day or two,” of the $250.
    In lieu thereof, they accept a check from the defendant in error,
    When they ascertained that the check was not good, instead of returning it, and insisting on a further advance of money, they held it, even up to the day of trial.
    As- May 18th approached, they became more urgent, and finally on that day threatened to sell, unless further advances were actually deposited.
    1. If the defendant in error had, at the interview, immediately before dinner, offered an advance of money, it would have been incumbent on plaintiffs in error to have accepted it, and held the stock.
    There had been no such breach as would justify them, in refusing so to do.
    The agreement to wait until after dinner, was simply a waiver as to time. Under the circumstances, it must be considered a waiver before breach. •

      In this view it would operate as an equitable estoppel to prevent the strict performance of a contract. — Note to Foster v. Dawber, 6 Excheq. 85k.

    Plaintiff in error extended the time; defendant acting upon such extension, delayed making a further advance, and was ready at the time last fixed. The law will not permit plaintiffs to take 'advantage of a delay expressly sanctioned by them.
    2. Again, admitting that a breach had occurred, it was ■ not necessary that there should be any consideration for the waiver, other than that arising out of the original transaction. — Fitch v. Woodruff é Beach Iron W. 29 Conn. 82;, Hansen v. Kirtleg, 11. Ioiva, 565; Van Bus-kirk v. Murden, 22 III. JJfi; M’Pherson v. Neuffer, 11 Rich. (S. C. Law R.) 267; Fox v. Harding, 7 Cush. 516; Emerson v. Cogswell, 16 Maine, .77; Savage Manuf’g Co. v. Armstrong, 17 Id. 8k•

    The deposit after dinner was to be accepted as a full performance of the contract.
    Evidence of waiver will support an allegation of performance.— Holmes v. Holmes, 9 N. Y. 525; Moore v. Detroit Locomotive Works, lk Mich. 266; Boutwell v-O’Keefej 82 Barb. kSk; Holbrook v. Bassett, 5 Bos. H7, J29; Young v. Hunter, 6 N. Y. 208; Carman v. Pultz, 21 N. Y. 5k7; Moses v. Bierling, 81 Id. k^2; Clark vt Meigs, 10 Bosiu. 887.

    3. As to the measure of damages, counsel cited — Shepherd v. Johnson, 2 East, 211; MArthur v. Seqforth, 2 Taunt. 268; Downer v. Back, 1 Starkie, 818; Harrison v. Harrison, 1 Car. & P. kl% J Greening v. Wilkinson, Id. 625; Archer v. Williams, 2 Car, & Kir. 26; Williams v. Archer, 5 Man., Gr. & Scott, 818; Owen v. Routh, lk C. B. (5 J. Scott,) 827; Gainsford v. Carroll, 2 Barn. , & Gres. 62k; Shaw v. Holland, 15 Mees. ' & Welsby, 155; Gortelyou v. Lansing, 2 Gai. Gas. 200; West v. Wentworth, 8. Gow. 82; Clark v. Pinney, 7 Id. 61;

      KortwrigM v. Buffalo Com. Bank, 20 Wend. 91; Com. B’k of Buffalo v. KortwrigM, 22 Id. 848; Dams v. Shields, 24 Id. 822; Smith v. Griffith, 8 Hill, 888; Allen v. Dygert, 8 Id. 598; Blot v. Boiceau, 8 N. T. 78; Arnold v. Suffolk, 29 Barb. 4®4; Andrews v. Clarke, 8 Id. 585; Romaine v. Van Allen, 26 N. T. 809; Scott v. Rogers, 81 Id. 676; Daborick v. Bmerie, 12 Cal. 171; Maher v. Riley, 17 Id. 415; Randon v. Barton, 4 Tex. 289; Calvit v. McFadden, 18 Id. 824; Kent v. Ginter, 28 Ind. 1; West v. Pritchard, 19 Conn. 212; The Bank of Montgomery v. Reese, 26 Penn. St. 148.

    In most of the authorities, the principle is based upon the fact of advance payment, and is said to apply equally to merchandise as to stock.
    Other authorities make a distinction between stock and merchandize. — 28 Ind. 1, and 26 Penn. St. 148, above cited; Sedgw. on Dam. chap. 10.

    But the. argument thus far assumes that the breach occurred on the 18th May.
    We think this is not correct.
    It is. true plaintiffs notified defendant that they had sold. his stock.
    But it must be remembered that they bought and sold as brokers. Defendant’s shares were not at all distinguishable from other shares.
    Plaintiffs could have replaced the stock, and defendant would be bound by such action.— Nourse v. Prime, 4 Johns. Ch. 490; Nourse v. Prime, 7 Id. 69.

    Defendant did nothing to rescind the contract, but insisted that he should abide by it.
    This gave plaintiffs a fair opportunity to make it good. The breach did not occur till order was given.— Leigh v. Patterson, 8 Taunt. 540.

    The plaintiffs had the money of the defendant, and it was their duty to hold until instructions to sell.
    They were in the market, and could buy at any time, and ought to have done so, and thereby been ready to perform the agreement on their part.
   Cooley Oh. J.

Burk sued Kanady & Taylor, who were brokers in Detroit, for the breach of a special contract, to purchase and hold for him a hundred shares of Pacific Mail stock. The contract, whatever it was, was not reduced to writing, and Burk sought to prove it by his own evidence, which was as follows:

That on April 18, 1868, Kanady and Taylor agreed with him for the sum of seven hundred and fifty dollars to purchase for him a hundred shares of Pacific Mail Stock, and hold the same until Burk should order them to sell. The agreement was an oral one, and nothing was said about commissions, or interest, or margin, or expenses, but Burk had before that time had dealings with them, as well as with others, in stocks, and supposed he was to be charged with commissions, and that they were to advance the balance of the money to purchase the stock, and charge him legal interest. He paid them the $750, and subsequently they sent him a statement of the purchase of the stock at $9450 or 94J per share, with a charge of $25 for commissions, adding, at the bottom, “To your credit as margin against the above stock $750.” Burk further testified that on May 26, 1868, Pacific Mail stock was at $98, and he then sent his brokers a written order to sell at once, and they replied in writing that the stock was sold at 90 net on the 18th, and statement rendered. This evidence constituted the plaintiff’s case.

The defendants, on the other hand, gave evidence tending to show that the agreement was that Burk should pay them, as a margin, ten per cent, of the par value of the stock, $750 to be paid down, and $250 in a day or two; that he should pay all expenses of- the purchase and sale of the stock; that he should keep good in their hands a margin of five per cent, on the par value of the stock; that he should pay them interest at ten per cent, on an amount equal to the par value, less the margin deposited; that he should pay them one-eighth of one per cent.'commissions for themselves, and a like sum for their New York brokers, On the purchase, and a like sum to each on the sale; that on the'se terms they made the purchase by telegraph; that they made repeated demands upon Burk for the $250 he was to pay in a day or two, but failed to obtain thé same, and' also made repeated demands for more margin on said stock, without result; that on May 6, 1868, Burk gave them his check on a Detroit bank for $250, as additional margin, pursuant to the agreement, but on presentation at the bank, payment for this check was refused, and though they presented it several times afterwards, prior to May 16, 1868, the result was the same, and they nevei- collected or received anything, upon it; that Burk was' repeatedly requested to make the check good at the bank, and'to put ■up more margin, and that on Saturday, May 16, 1868, they notified him in writing that it Avould be impossible for them to carry the stock any longer unless he put up more margin.

They further gave evidence to sIioav that in response to this notification Burk came to their office, and said to them he could not put up any more margin, because he had no more money; that they replied they must have more margin, or they could not carry the stock any longer, but that finally they said, as it Avas then too late to sell that day, they would hold the stock until the next Monday morning, but that on Monday they Avould have to sell. On Monday morning they had another interview with Burk, and insisted again on his putting up more margin on said stock, and informed him' unless he did so, they would be obliged to sell the stock t.o protect themselves from loss; that Burk again expressed his inability to put up more, and on presentation of his check at the bank just before noon of that day, payment was again refused; that the stock was'then down to 9Of, and defendants then had in their hands a margin of only about one and three-fourths per cent.; that about one o’clock that day, Burk, on his way to dinner, stepped into their office, and said to defendant, Taylor, in reply to his demand for more margin, “If you must sell, sell; if it goes to 90 sell any way. I wish you would hold it till I get back from dinner;” to which defendant Taylor replied, “I can’t hold it; it may be too late to sell to-day. We have held it much longer than we ought to.” That Taylor then had. his dispatch to New York brokers, ordering a sale, written out and in his hand ready to send; that he said nothing to Burk about this, but told him he was going to sell immediately, and at once on Burk leaving the office, Taylor sent off the telegram to the New York brokers, who made sale of the stock at three o’clock that afternoon, at 90-J; that on his return from dinner, Burk again came in to inquire about the stock, and Taylor informed him it had been sold, whereupon he replied that they had no right to sell the stock; that he was ready and willing to give more margin, and had made arrangements that morning, at the bank, to make his check good; that his check was good that afternoon, and if the stock went up, he would send them a written order to sell, and sue them for the loss.

They gave' further evidence to show that about three o’clock on that day, on receiving a dispatch from the New York brokers, announcing the sale, they sent Burk a statement of account showing due him $174.31, which statement he returned, but subsequently drew from them $125 of this sum.

It is quite apparent that this evidence, on the part of the defendants, tended to establish a veiy different contract from tffat sworn to by the plaintiff, at the same time that it fully justified all that they had done under the contract, if its terms were as they claimed them to be. To rebut the defence, the plaintiff introduced evidence tending to show that the said check of $250 was not given in pursuance of the original agreement, but, at the solicitation of defendants, was after-wards given by him voluntarily, for them to hold as security in case the stock went so low as to exhaust the $750 already in their hands, and without any expectation on his part that the check would be presented for payment, but with the express understanding that it should not be so presented, and that he never knew it had been presented until May 16th; that nothing was said by defendants in their note of May 16th, nor in the interview with them on that day, about selling the stock, but that defendant Taylor promised to hold the stock until Monday morning; that on that morning, Burk was in negotiation for a discount at the First National Bank, and soon after the bank closed, at noon, obtained from the cashier his consent for a discount of $460; that his check for $250 was good at two o’clock on that day; that on coming down from his office to go to dinner at about one o’clock, he stepped into defendant’s office, and asked defendant Taylor if there was any further dispatch, to which Taylor replied there was not; that he then said, “Very well, Taylor, will you hold that stock until I get back from -dinner?” To which Taylor replied, “Yes, we get no telegram between this and 3 o’clock this afternoon, and I will hold it until you get back from dinner.” That Burk said to him, “I wish you would,” and went to his dinner; that when he came back from dinner, he said to Taylor, “Well, Terry, any further dispatch from New York?” To which Taylor replied: “No, sir, but I sold your stock.” That Burk then said, “ Terry, you told me you would wait until I got back from dinner.” To which Taylor replied, “Well, I took my chances, and I sold your stock.” T-hat Burk then said: “Very well; you will have to suffer the consequences;” that Burk did not give any order to sell; and that no such conversation as related by defendant, Taylor, occurred at one o’clock on the eighteenth day of May, but that the conversation as here given, was the conversation both before dinner and at two o’clock.

This being the state of the case upon the evidence, the Circuit Judge proceeded to address the jury upon the law, and instructed them, if they should find the original agreement to be as stated by the plaintiff, then the defendants were not entitled to sell the stock, except upon the order of the plaintiff, until the depreciation, the accrued interest and the commissions had exhausted the sum of money deposited.

He further charged them that if they should find that, on Saturday, May 16th, defendants sent plaintiff a nóte, stating that they would not carry the stock any longer unless a deposit was made, and, in consequence of that, plaintiff saw the defendant, Taylor, and had a conversation with him concerning it, and an agreement was entered into whereby defendants were to wait until Monday, and, on Monday, another arrangement was made by which they were to wait until after dinner, then the plaintiff was entitled to a reasonable time to make the additional deposit, and under the evidence in the case, two o’clock in the afternoon was within such reasonable time.

He further -charged them that if the agreement was as stated by defendant, Taylor, the performance of it according to its strict terms was waived by the agreement to hold until after the plaintiff returned from dinner on May 18th, (if the jury believe the latter agreement was made) and defendants were not authorized to sell the stock at the time it was sold.

And the judge refused to charge, as requested by defendants, that if the jury should find that, in the conversation between Burk and Taylor at or about one o’clock in the afternoon, of May 18th, Taylor agreed that defendants should not sell the stock until two o’clock, or until Burk returned from dinner, then such agreement was void for want of consideration.

From this statement of the charge it is evident, we think, that the Circuit Judge misconceived the legal effect of the conversation between Taylor and Burk, assuming it to have been as stated in the evidence of the plaintiff. The Circuit Judge treated the question arising upon it as if it were one of waiver only; Avhereas, an examination of the case on the theory on which, in respect to that conversation, he put it to the jury, will show that the question involved was not one of waiver, but Avas whether a distinct agreement was then arrived at between the 'parties, which varied in important particulars the terms of the original contract, and which would be binding upon the defendants and preclude their selling the stock thereafter, except in accordance with the understanding by the new agreement.

The instructions to the jury in respect to the legal effect .of that conversation were given on the theory that they might find the original bargain to be as stated by defendants, and had no application to the case if they found the contrary, as in that event the plaintiff Avould not have been in default, and there would have been nothing for the defendants to waive. But assuming the bargain to have been as defendants claimed, then there had been a default on the part of the plaintiff, from the time when he had failed to pay the $250 as agreed, and a second default occurred when the stock fell so low that they did not have in their hands a margin equal to five per cent, on the par value of the stock.

■Whether, when the stock Avent doAvn so that the stipulated margin did not remain, the defendants Avere bound, before selling, to .notify the plaintiff of the fact, and to demand a further deposit; or Avhether, on the other hand, the plaintiff Avas bound at his peril to Avatch the fluctuations of the market, and keep his margin good, we do not feel bound, upon this record, to express an opinion. It clearly' appeared in the case that the plaintiff was notified of the fall in the market price, and we think the evidence on both' sides shows that defendants were- insisting upon their right to a further deposit, and that their note to the plaintiff on May 16th fairly apprised him that they expected to sell, for their own protection, unless he made his margin good. We cannot otherwise understand their communication as stated by the evidence on both sides, and the plaintiff apparently acted on this understanding. In his interview with them on May 16th, he induced them to delay further action until May 18th; and at one o’clock of that day, according to his - statement, he secured a further promise that a sale should not be made for another hour. If this was in good faith on his part, it must have been to make arrangements for ,a further deposit, as no other purpose is apparent or is suggested.

Now, so far as these promises of defendants related to the past, and went to absolve the plaintiff from any liability for a failure to perform his agreement at any time before the promises were made, there is ground to claim that they might legally operate as a waiver; and had plaintiff afterwards, and before the sale, made good his margin, there could have been no doubt that the waiver would have been effectual to heal any previous breach of the contract; It is not, however, as a waiver of a right of action or of a forfeiture, that the plaintiff relies upon these promises, but he treats them as the foundation of a new right, and the present action is substantially based, not upon a failure of the defendants to perform the original contract, but upon the breach of the new agreement.

The new agreement seems to have been regarded by the plaintiff as one merely waiving strict performance by him; but in so far as it looked to the future, it was an agreement to give further time, and it needed a consideration to support it. Like any other contract without a consideration, it was mere nudum pactum. But it was also something more than an agreement to extend time. Under the original contract defendants had in their hands a remedy for any breach of the agreement, which, under ordinary circumstances, would have been completely effectual in its provision for indemnity. On a falling market they were not obliged to wait until the margin was exhausted, but might sell for .their own protection when anything less than five per cent, remained in their hands. This arrangement' did not leave them to rely upon the pecuniary responsibility of the party for whom they bought, nor would it leave them to take the risk of the fluctuations of the market unless those fluctuations should prove greater and more rapid than was anticipated by the parties as probable when they made their contract. When, therefore, we are told that the defendants agreed, after the plaintiff had been for some time in default, and after the margin had become nearly exhausted, to delay making sale for any definite period thereafter, however short, we must understand that they agreed also, in effect, to take upon themselves in the meantime the risk of the plaintiff’s responsibility being adequate to protect them against any loss consequent upon a further depreciation of the stock.

There is no analogy between this case and that of Moore v. Detroit Locomotive Works, 14 Mich. 266, where parties waived a strict compliance with an agreement, and accepted as performance that which fell short in important particulars. In the present case it is not sought to hold a party to an accepted performance, but to bind him by the terms of an alleged promise which looked to performance in the future, and which was based upon no consideration whatever.

But if we' thought otherwise on this point, we should still regard the charge of the judge as erroneous. Assuming that the defendants were under obligation to wait until two o’clock before making sale, it will not follow, we think, that they incurred any liability by making sale earlier, unless some further act was done by the plaintiff. Although it is not so stated in express terms, yet, as we have before said, the only legitimate inference is that the time was to be given to enable him to make good his margin, and if he failed to make it good, he has no ground of legal complaint. When he came back at two o’clock, the stock was, in fact, not sold, though the defendants supposed it was, and so informed him. It may be that had he then tendered the proper margin, the sale would have been countermanded. Assuming, however, that he had a right to suppose the sale already made, yet we think we are at liberty to infer from what appears in this record, that it would have been easy for defendants at once to replace the stock by purchase, had plaintiff insisted upon their doing so, and tendered performance on his part; and we cannot assume that they would not have done so had the tender been made. The plaintiff made no such tender. He does, indeed, inform us that at that time his check of $350 had become good, but this was. not sufficient to make up the margin to five per cent., nor does it appear that he offered to pay even this. He assumed that the failure of defendants to keep their promise to extend the time for performance had given him a right of action, notwithstanding he had not performed, or offered to perform, within the time as extended. This, clearly, is an erroneous view of the law. The extension was for the purpose of giving him time to perform; and on his own theory of the case, unless the defendants had put it out of their power to keep the agreement on their part, by purchasing, if necessary, and holding for him the amount and kind of stock specified, he has not put them in legal default until he has tendered the proper margin. Instead of a sale of the particular one hundred shares putting it out of their power to perform, we have a right to infer that it would have been, as easy to replace the stock as it would have been to replace a hundred bushels of any ordinary marketable grain.

We think, therefore, that the verdict, which gave the plaintiff the value of the stock on May 26th, should be set aside and a new trial granted.

Some of the exceptions .taken on the trial relate to the rule of damages,' but these become unimportant, unless the jury, on a new trial, should sustain the plaintiff’s theory of the original contract as stated in his evidence in chief. As, however, his rebutting evidence would seem to indicate his understanding that defendants were entitled to a further margin, we do not feel called upon to discuss the rule of damages on this record. And we feel the greater liberty to refrain from such discussion since the contract involved, though perhaps legally binding, is yet separated from clearly illegal wager contracts by distinctions so faint and shadowy, that it cannot entitle the parties to demand from the court any. larger share of attention than is absolutely necessary to a settlement of their legal rights as they depend upon the particular record before us.

The other Justices concurred.


source: Caselaw Access Project

author: Christiancy J.

license: Public Domain

text:
    Squire C. Merrill v. Stephen W. Butler.

      Declaration: Jurisdiction. The jurisdiction of the Circuit Court depends upon the amount claimed in the declaration. —16 Mich. !Sk: 3 Id. 466.

      Replevin: Assessment of value. In replevin, when the property has been delivered to the plaintiff, and he recovers a verdict, there is no authority giv.en by the statute either to the court or the jury to assess the value of the property so replevied.

      Replevin: Costs. Under the Statute, Comp. Laws, § 5597, the plaintiff is entitled to costs, without reference to the value of the property, whenever he recovers judgment upon verdict in an action of replevin.

      Heard April 22

      Decided April 27.

      Error to Wayne- Circuit.
    This was an- action of replevin. The property was delivered by the sheriff to the plaintiff below. The jury rendered a verdict for plaintiff for $10.00; but there was no assessment of the value of the property, either by the court or jury. Judgment was thereupon entered for plaintiff, with costs.

      Fred. A. Baker, for plaintiff in error.
    1. Justices of the Peace have exclusive jurisdiction in all actions of replevin where neither the value of the property nor the damages for taking and detaining it, exceed the sum of one hundred dollars. — Const. Art. VI, § 18; Comp. Laws, § 8695.

    The jurisdiction of a court must be determined from the record; and where it depends on amount, by the sum claimed in the writ or declaration. But where the plaintiff claims in his writ or declaration an amount sufficient to give the Circuit Court jurisdiction, and only recovers a sum within the exclusive jurisdiction of a justice, costs will be given to the defendant. — Strong v. Daniels, 8 Mich. 166; Inkster v. Carver, 16 Id,. 4-8Ji.; Comp. Laws, § 5597, subdiv. L

    It will be observed, that by the statute the plaintiff is entitled to costs in all actions of replevin in which he recovers judgment. But the principles of construction, adopted in actions brought for the recovery of any debt or damages, are, by parity of reason, equally as applicable to the action of replevin; for the value of the property replevied is synonymous with damages, at least for the purpose of determining a question of costs. — Small v. Bixley, 18 Wend. 51Í.

    But who shall determine the question of value — the. court or the jury?
    There is no provision of the statute expressly authorizing the jury to assess and find the value of the property, even in cases where it is not seized and delivered to the plaintiff. The practice in this respect is based upon section 30, chap. 152, pp. 1335 of the compiled laws, which implies by the words ‘‘ as the same shall have been assessed,” that the value of the property should always be determined by the jury. See also section 34 of the same chapter. But, perhaps, the correct theory is to have the court determine the value where it only affects the question of costs, as is necessarily the case where the property is replevied, and the plaintiff recovers judgment.— Comp. Laws, §5686, p. 14-68; Davis v. Freeman, 10 Mich. 188.

    The decision of the Circuit Judge, awarding costs to the plaintiff, was conclusive evidence to the taxing officer, but this court possesses the power to review upon a bill of exceptions the grounds upon which the decision was made. — Barney v. Keith, 6 Wend. 555; Commonwealth v. Merrill, 14 Gray, 418; Chase v. Breed, 5 Id. 443-

      Geo. II. Prentiss, for defendant in error.
    1. The amount specified in the declaration as the value of the property, and the damages claimed exceeding $100, the Circuit Court had jurisdiction on the pleadings. — Inkster v. Carver, 6 Mich. 4&4l Strong v. Daniels, 8 Id. 406.

    2. The Circuit Court, having jurisdiction in the case on the pleadings, the plaintiff has a right to costs, whatever might be the value of the property.
    The statute gives costs in all cases of replevin. — C. L. § 5597.

      a. It is plain, from the association of this action with other actions in this section, that costs follow the judgment in replevin, independent of the amount of damages or value of the property.

      1. We respectfully submit that there is no rule of law requiring the plaintiff or allowing the defendant to hav<3 the value of the property assessed, where the plaintiff, as in this case, does not wish it, nor ask for it, and has had the property delivered to him. — 2 C. L. chap. 152; Laws of 1855, p. 825.

    The defendant in certain cases may have the value assessed.— 2 Comp. L. § 5088.

    So may the plaintiff. — Ibid. 508f

    3. If it were necessary or proper to have the judge fix the value of the property, and to find it worth more than $100, we submit that there was evidence tending to show such value.
    It will be presumed that the Judge properly weighed the evidence.
    Error will not be presumed, but must be made to appear affirmatively. — Cooley’s Dig. 1562.

    4. But the defendant below is concluded by the fact that he took no exceptions to the rulings of the judge now complained of. — Siueetzer v. Mead, 5 Mich. 109.

   Christiancy J.

This was an action of replevin in the Wayne Circuit. The property was seized upon the writ, and delivered to the plaintiff below. It was appraised by appraisers under the writ at $225, and the declaration alleged it to be of the value of five hundred dollars. On the trial, some testimony was given by which it appeared doubtful whether the value exceeded one hundred dollars. The counsel for the defendant below, requested the court to instruct the jury to assess the- value of the property, though they might find a verdict for the plaintiff. This the court declined to do. A verdict was found for the plaintiff, and judgment rendered against the defendant for damages and costs, the court also refusing to assess the value of the property.

Plaintiff in error insists that either the court or the jury should have assessed the value of the property, and if found to be less than one hundred dollars (the limit of a justice’s jurisdiction in replevin,) costs should have been awarded to the defendant below, instead of the plaintiff.

It is not denied that the jurisdiction of the - Circuit Court depended on the amount claimed in the declaration — Inkster v. Carver, 16 Mich. 484; Strong v. Daniels, 3 Id. 466.

The .statute very clearly gives no authority, either to the court” or jury, to assess the value of the property in a case where the property has been delivered to the plaintiff, and he recovers a verdict for it. And the fourth subdivision of section 5597 Compiled Laws, gives costs to the plaintiff in all actions of replevin, when he recovers a judgment upon verdict, without reference to the value of the property. We see no remedy for the defendant against such costs, without further legislation.

The judgment must be affirmed, with costs.

The other Justices concurred.


author: Graves, J.

text:
    Walter Goodenow v. Thomas Curtis.

      Contract: Fraud: Description: Possession. Complainant entered Into an agreement with defendant to purchase of him the ‘ Knapp House property,” so called.
    The defendant at the time was the owner of a certain triangular piece of land which he purchased of one Knapp, together with several other lots, all of which had been used and occupied as one piece, and been enclosed by a fence for several years before, and which enclosed piece had long been known as the “Knapp House property.”
    During the negotiation, defendant alluded to the entire piece as the said “ Knapp House property,” and he knew that complainant supposed and understood that he was purchasing the entire piece so enclosed. In one of the conveyances to complainant, the description, as dictated by defendant, specified two of the lots in said piece, as constituting the whole of the piece known as the Knapp property, and which defendant Knew was untrue.
    It further appeared that the entire piece enclosed was occupied by one Beede as tenant, and a mutual arrangement was entered into by all the parties that complainant was to have possession of the entire piece. The conveyance delivered to complainant omitted the said triangular piece.

      Held) that according to the understanding of the parties, and, in fact, the agreement was for the purchase of the “Knapp House property.” That complainant believed the deeds he received embraced it, and which the defendant knew they did not, and knew also that complainant was acting upon the faith that they did so, and was thereby deceived.

      Held juriher, That complainant took possession under his purchase of the whole “Knapp House property,” and so went into possession of the disputed parcel as a portion of such property.

      Description of premises in bill of complaint. Where the description of property in the bill of complaint was such as to point out the premises by a name which was well known, and which distinguished it from others, held sufficient.

      Amendment; Ghancei'y Bule 21. Chancery Eule number twenty-one has no application to amendments at the hearing of a cause.

      Heard April 27, 20, 21.

      Decided April 27.

    Appeal in Chancery from Calhoun Circuit.
    The bill was filed to compel the defendant to convey to complainant certain fractional lots in the village of Albion, included in an agreement of purchase, but omitted by the defendant in his conveyances; such omission being at the time unknown to the complainant, he supposing ' they were embraced in the conveyances.
    The premises were described in the bill as the “ Knapp House property,” and known as such.
    The defendant, in his answer, denies that said fractional lots were included in said agreement.
    A decree was granted as prayed for in the bill.
    The facts are stated in the opinion.

      T. G-. Pray, for complainant.
    1. The testimony clearly shows that all the fractional lots were included in the agreement of purchase of the hotel property known as the “Knapp House property,” of which they were a portion, and were mainly enclosed as such.
    Where the agreement is positively denied by the answer, and is proved only by the unsupported evidence of one witness, that will not be allowed to prevail, but where the one witness is corroborated in his statement by circumstances, the proof may prevail over the denial.

      ■— Fry on Spec. Per. p. 268, § J/.22; East India Go. v. Donald,, 9 Ves. 276j Morphett v. Jones, 1 Sw. 172; Toole v. Medlicott, 1 Ball and B. 393.

      2. A court of equity will enforce the specific performance of a parol contract for the conveyance of land, where the purchase money, or a part thereof, has been paid, possession taken under the contract, and val-' uable improvements made. — -Burtch v. Elogge, Har. Oh. 31; Bomier v. Caldwell, Id. 65; Bomier v. Caldwell. 8 Mich. 168; Norris v. Shoioerman 2 Doug. 16.

    3. The testimony clearly shows that defendant knew complainant treated for the entire Knapp House property He must, therefore, be considered as having fraudulently withheld a conveyance of the parcel in question.
    A vender who fraudulently induces the vendee to believe that he is purchasing a parcel of land of a certain extent, while the conveyance is so drawn as not to include the whole, will be decreed to convey the residue, —. Wiswell v. Hall, 8 Paige, 818.

      Chas. Draper and Thos. Curtis, for defendant in error.
    1. The bill is for specific performance of a verbal agreement to sell and convey land. The answer denies a sale or agreement to sell and convey. And on this state of the case, it has been held that the complainant must fail, on the ground of the statute of frauds, which requires the contract to be written. To this point we cite — Story Eq. Plead. § 762, note 1, and cases cited; Gozine v. Graham, 2 Paige, 177, 181; Ontario Banlc v. Root & Cog-don, Id. 173; 11 Id. Jfi8; Haines v. Knicherlocher, 5 Wend. 688.

    The agreement being denied by answer, complainant must show a written contract of sale, unless allegations of fraud are made, or payment and possession under it with improvements made, .etc.

      2. The complainant, however, in order to take the case without the statute, averred in his bill that fraud was practiced on him by the defendant, Curtis, at the time the deeds were delivered; also that he took possession of the lots he claims, and the defendant gave him that possession, and that he was cheated and deceived by Curtis, in consequence of the confidence he reposed in his (Curtis’) statements, as-to what the deeds contained.
    The complainant, to sustain his bill as to the frauds, must as clearly prove it. In this case we claim he has entirely failed.
    The contradictory and confused statements of the complainant, as to the contract, and more especially as to the fraud alleged, by which, he would avoid the statute of frauds, would seem to render it impossible to make any decree in the case. — Fry on Spec. Per. §§ 161-5-6-9, note 9; Id. §§ 172, 208, 210, 211; Adams’ Fq. 221.

    As to possession. — 1 Story Fq. Jur. 178, $157.

    Relief not granted when the evidence is loose, equivocal or contradictory, or when it is in its texture open to doubt, or apparent presumption. — 1 Story Fq. Jur. § 158-9; Fry Spec. Per. § 118; Jones v. Tyler, 6 Mich. 868.

    The evidence must be entirely satisfactory. — 1 Story Fq. J- §§ 156, 180; Adams Fq. Jur. p. 851. •>’
    "Sometimes, by mistake, the written instrument contains less than the parties intended; sometimes it contains more. In all such cases, if the mistake is clearly made out by proofs entirely satisfactory, equity will reform the contract.— 1 Story Fq. Jur. § 152.

    This being a case not of mistake, but actual fraud, as claimed in the bill, the fraud must be clearly made out, by proofs entirely satisfactory, &c., and this rule applies to an omission as well as a mistake.
    There must be a false statement in a matter in which one party places a known reliance on the other, and confidence in him. — 7 Story Eg. J. §§757, 200.

    The party must be misled by the false representation — Id. §202.

    If the purchaser, choosing to judge for himself, does not avail himself of the means of knowledge open to him, or his agents, he cannot be heard to say that he was deceived by the vendor’s misrepresentations.' — -7 Story Eg. Jur. §200; Fry on Spec. Perf. 277, 288.

    3. As to the question of possession of the disputed property, it only becomes material in case the alleged contract is proved, and the fraud and misrepresentations of the defendant are clearly made out.
    Complainant did not obtain it from the defendant Curtis. The delivery of the deeds, at most, only gave him possession of the land described in them — nothing more. As to the poijit, we cite— Adam’s Eg. 220, and notes.

   Graves, J.

The complainant filed his bill in the court below, to compel the defendant to convey to him certain premises in the village of Albion, and which he asserted to be a part of what was known as the “Knapp House property.”

The Circuit Court decreed a conveyance as prayed by the bill, and the defendant appealed to this court. The testimony returned is very voluminous, and we deem it unnecessary to notice it in detail.

It appears that when the village of Albion was first platted, a parcel of land between Ionia and Superior streets, and running from the Kalamazoo Kiver to ah alley one rod in width along the south side of block thirty-three, was reserved by the proprietors, and set apart from sale for mill purposes; that afterwards, the northerly part, next to block thirty-three, was devoted to other uses, while the Michigan Central Railroad was so laid as to cut off a corner of lot two in block thirty-three, and a large portion of the parcel which had been so reserved. This left the triangular piece marked seven, eight, and nine, as on the second plat given in the record.

It also appears that from about 1858, when Gilbert Knapp purchased the triangular piece of one Chatñeld, to the time of the bargain between complainant and defendant, in September, 1865, the lots one, two, three, and four on block thirty-three, and the parcel in question were held and occupied together as one possession and establishment; that the lots three and four, and the piece in dispute, together with the alley between, were fenced as one enclosure, and used and enjoyed with the lots one and two; and that the territorial form and extent of the “Knapp House property,” was marked and indicated as here stated by undivided ownership, by fence, and visible occupation and use at the time’ complainant bargained for it with the defendant. In addition to this, it is very clearly proved that for several years next preceding the time of complainant’s negotiation and purchase, these premises as thus held, occupied and used, had been well known as the “Knapp House property;” that they were so known when the defendant purchased the premises of Knapp, when he leased to Reed, and when he bargained with complainant.

Hnder these circumstances, the complainant, who was a stranger in the place, proceeded to bargain with the defendant for the premises as the “Knapp House property,” and the defendant not only spoke of the premises under that name in conversation with the complainant, uniformly if not universally, but, in person and by Reed whom he made his agent therefor, carefully pointed out as belonging to the premises they were in treaty about, and then denominated the “Knapp House property,” the identical triangular piece in question.

Tbe complainant bargained for what was known as the “Knapp House property,” and ior the whole of it, and, in doing so, naturally and reasonably contemplated the facts which applied the name to the subject matter; and the evidence is strong to show that up to the delivery of the deeds, the complainant believed that in purchasing he was buying the property bearing that name, as it had been held and occupied for' several years, and had been shown to him by defendant and Reed; and the proofs also show that the defendant knew the complainant was acting under such impression and belief when the deeds were so drawn by the defendant’s direction as to omit altogether that part of the property mentioned as the triangular piece. In this it seems to us the defendant was active in passing upon complainant as conveyances of all the land embraced by the bargain, two instruments of conveyance which he knew omitted a portion; and this opinion is much supported by the circumstance that the description in one of the deeds, as dictated by defendant, specified lots one and two, as the “Knapp House property.” This description furnished by the defendant imported that lots one and two constituted what was known as the property, and the whole of the property, bearing the name last mentioned. It was a representation by the defendant to complainant in the deed itself, which the defendant, according to the evidence before us, must have known to be untrue.

Another fact drawn from the record has some bearing upon this branch of the case. At the time of tbe bargain with complainant, Reed was occupying the whole premises under a lease from defendant, and though it was understood that complainant wanted possession of all he should purchase, no one supposed that he wanted possession of more. The parties, however, proceeded to make an arrangement with Reed to give up possession of the whole, and he agreed to do so. And, on this negotiation, neither party suggested that the necessity for giving up the triangular piece to complainant was less or otherwise than that for giving up the other lots. On the contrary, the necessity for securing the possession of that portion as a means of completing the bargain between the parties, was, by this conduct, as strongly evinced as the necessity for the possession of the other lots.

We are, therefore, satisfied that the defendant agreed to sell, and the complainant to buy, the “Knapp House property;” that such property in fact, and according to the understanding of the parties, included the portion in question; that the complainant belieyed the deeds he received embraced it, while the defendant knew that they did not, and knew also that the complainant was acting upon the faith that they did so, and was therein deceived. We are also satisfied that the complainant took possession under his purchase of the whole “Knapp House property,” and and so went into possession of the disputed parcel as a portion of such property.

We observed on the argument that the defendant much relied on what he deemed uncertainty, and, contradiction in the description of the property, and on inspection of the record, we find abundant evidence that this idea gave a coloring to the defendant’s answer and testimony. But the view of the defendant on this point cannot be supported.

The description as contained in the bill, before the amendment, was reasonably certain.

It pointed out the property by a name which seems to have been well known, and which distinguished the premises from other property.

It ivas also claimed that the amendment of the bill at the hearing was forbidden by rule tivenly-one of the Circuit Court in Chancery, and if not, that the amendment Avas too fundamental to be reconciled Avith the course of the court.

Neither of these positions can be maintained. The rule referred to has no application to amendments at the hearing, and the change in the bill in no manner affected the issue, or altered the rights oí the parties. While it was not needed to supply any real deficiency in the bill, it could have no other effect than to furnish a second, and somewhat more elaborate, description of the same property.

We think the decree below should be affirmed, with costs.

The other Justices concurred.

       Fry on Specific Performance, 2 Am. Ed. 156, 157, top paging; Hurley v. Brown, 98 Mass. 545, and cases cited.


author: Campbell, J.

text:
    Oliver C. Abell v. Lewis R. Munson.

      Practice in Circuit Court: Meaning of representations: Jut'y. Where there was parol evidence given that a party on transferring a note, represented the note to be “ as good as cash, and that the maker was perfectly responsible,” and also that it was understood that the note was not to be presented at once, and the evidence of solvency was conflicting, it was properly left to the jury to determine the meaning and extent of these representations, to ascertain whether they were true or not.

      Statute of frauds: Land Contract: Parol evidence: Time of performance. Under the statute of frauds, which requires all contracts for the sale of lands to be in writing, and makes them void if not written and signed by the vendor, parol evidence cannot be received to show a subsequent verbal agreement to change any of the terms, as no part of the contract can rest in parol.
    And where a contract fixes expressly the time of performance, it binds the parties, and no inquiry can be made as to what would have been a reasonable time for such performance.

      Measure of damages: Value of real estate: Evidence. In estimating the value of land at a given time, testimony of its value a few months after, is admissible to go to the jury, as furnishing some means of guidance. It will not be assumed, without proof, that any great change must have occurred in such an interval.

      Heard April 21, 22.

      Decided April 27.

    Error to Wayne Circuit.
    This was an, action to recover damages for not conveying certain real estate according to the terms of ■ a certain contract.
    On the trial, the plaintiff gave evidence tending to how that about the tenth of June, 1867, he made a verbal agreement with the defendant for the purchase of lot 16 (hereafter mentioned in written contract), and gave a note against Philetus Howe for $129.25, in full payment for the same; that nothing was said at the time of giving the note to defendant about the pecuniary responsibility of Howe, or about the note being as good as the cash; that before June 10th, he had offered said note against said Howe for said lot, and defendant did not take the note at that time from him, but said he would see about it; that about June 10th, he met defendant again, and defendant said' he would take the note for the lot; defendant took the note and agreed to make the contract; that the written contract was to be made by defendant, and handed to him, witness; that said contract was delivered to witness three or four months after its date; and that on June 10th, at the time of stating agreement, it was agreed that the written contract, when drawn, was to be dated back to the time of giving of note by witness to defendant: such was the understanding at the time note was given to defendant. Said contract was as follows:
    “ Articles of agreement made this 10th day of June, 1867, between Oliver C. Abell, of Wayne County, Michigan, and Lewis Munson, of the town of Nankin, Wayne county, Michigan. The said first party, in consideration of the sum of $129 to him paid, hereby agrees to sell unto the said second party, all that certain piece or parcel of land situated and being in the county of Wayne, State of Michigan, and described as follows: Lot No. sixteen (16) in the village of Wayne, in O. C. Abell’s addition to said village, and according to the plat thereof, be the contents of said lot more or less, which the said second party has paid the first party .for said lot, one hundred and twenty-nine dollars; said payment being a note against Philetus Howe. Said second party also agrees to pay all taxes and assessments that shall be taxed or assessed on said premises from the date hereof, until said sum shall be fully paid as aforesaid; and the said party of the first part, on receiving such payment at the time, and in the manner above mentioned, shall, at his' own proper cost and expense, execute and deliver to said second party, or to his assigns, a good and sufficient warrantee deed, as soon as said first party gets said plat surveyed and recorded.
    It is mutually agreed between said parties that the said party of the second part shall have possession of said premises on the first day of September, 1867, and he shall keep the same in as good ■ condition as they are in at the date hereof, until the said sum shall be paid as aforesaid; and if the said party of the second part shall fail to perform this contract, or any part of the same, said party of the first part shall, immediately after such failure, have the right to declare the same void, and retain whatever may have been paid upon such contract- and improvements that may have been made on said premises, and may consider and treat the party of the second part as his tenant, holding over without permission, and may take immediate possession of the premises and remove the party of the second part therefrom; and it is agreed that the stipulations aforesaid are to apply to and bind the heirs, executors, administrators, and assigns of the respective parties.
    In witness whereof the said parties have hereunto set their hands and seals the day and year first above written.
    Signed, O. O. ABELL.”
    That about ten months after date of contract, and six or seven months after its delivery, witness called upon defendant and demanded a deed; that defendant said he wanted to talk with him, and made no other reply; that a few days afterwards he called again, and defendant made same reply; that a few days after that, he called the third time, and defendant said he had seen Howe, and that Howe said that he himself was not responsible, and was insolvent at the time he, defendant, took note of plaintiff, and was then irresponsible and insolvent, and that the representations which defendant claimed witness made to him were untrue, and that he, defendant, would not give a deed; that witness said to defendant that Howe would not swear to his irresponsibility. Plaintiff also gave testimony tending to show Howe’s responsibility; also, that when defendant first spoke about selling the lot, he had a draft of it on paper, and said it was four by eight rods; and when he first spoke to defendant about buying the lot, in June, 1867, defendant said he should have it platted and recorded within three months. Witness having shown himself familiar with the value of land property in Wayne, was asked by counsel for plaintiff what the market value of said lot sixteen was at the time he testified that he demanded the deed, to which question counsel for defendant objected as irrelevant; but said objection was overruled, and counsel for defendant excepted. Witness stated it was worth one hunhundred and fifty dollars, ($150.)
    The plaintiff further testified that said lot was to be platted and surveyed four rods by eight rods, and the value was estimated by the witnesses on that basis.
    Counsel for plaintiff then rested his case.
    The defendant, being sworn, gave evidence tending to show that at the time of receiving the note from plaintiff the plaintiff represented to him that it was good as the cash, and that the maker was perfectly responsible.
    That said note was due on demand, but that said plaintiff requested the witness not to call on Howe for payment for three or four months; that at the expiration of three or four months, defendant called upon Howe for payment, and within a week or two afterwards the plaintiff called on witness for a deed; that defendant informed plaintiff that he had seen Howe, and that Howe said he was not good for anything when defendant took the note, and plaintiff knew it; that defendant went to plaintiff three or four days before commencement of the suit, and tendered plaintiff the note for the first time, saying to him that it was not worth the paper written on; that plaintiff declined to receive the note, and said to witness that he conld not rescind. The defendant then testified that he did not tell plaintiff he would survey and plat said lot in three or four months, or within any time, and further testified as to the efforts made to get said premises, including lot sixteen, surveyed and platted.
    Philetus Howe was then sworn,' and gave evidence tending to show his solvency.
    The charges of the court are stated in the opinion.
    Judgment was rendered in favor of plaintiff.

      Moore & Griffin, and H. Bains, for plaintiff in error.

      H. M. <& W. B. Gheever, and Vining & Minnoeh, for defendant in error.
   Campbell, J.

Munson sued Abell for not conveying certain property, according to agreement. The defence was that the agreement was obtained by fraud, and without consideration; and also that there had been no default, or none which had not been waived by subsequent agreement.

The consideration paid in advance was a note against one Philetus Howe. Abell claimed and testified that Munson represented this note to be “as good as the cash, and that the maker was perfectly responsible.” He testified further, that Munson desired him not to call upon Howe for three or four months. He further testified to calling on Howe, and being informed by him of his insolvency, and to several interviews with Munson in regard to the matter, and to a joint interview of both with Howe. Howe’s testimony showed that he was not insolvent.

It is unnecessary to refer at length to the facts on this part of the case, as the charges show sufficiently upon what footing the court left it.

'The judge charged that no recovery could be had, if the note was taken on Munson’s representations, and if those representations were untrue, whether he knew their untruth or not. He told the jury that it was for them to determine what was meant by the representations sworn to, and that Abell had a right to rescind within a reasonable time for fraud, if existing, and that he would not be prejudiced by any delay in rescinding caused by the fault of Munson. What was reasonable time, he left to the jury under the circumstances, there being directly contradictory testimony upon all these points.

The rulings of the court in these matters were quite as liberal as Abell could ask. They were some of them based on assumptions which contradicted the written agreement, and which were not admissible. We think there was no error in this part of the case against the rights of Abell.

We think, also, that all the difficulties urged concerning the contract itself, and its breach, arise from the court below allowing a more liberal treatment to plaintiff in error than he was legally entitled to. When the contract is viewed in its true legal aspect, the objections all become incompetent.

The agreement is in writing, dated June 10, 1867, reciting the receipt of the Howe note as an absolute payment for the land contracted, and agreeing to convey “lot numbered sixteen in the village of Wayne, in O. C. Abell’s addition to said village, and according to the plat thereof,” and to execute a good and sufficient warranty deed, “ as soon as said party of the first part gets said plat surveyed and recorded.” The contract further stipulated that Mun-son should have possession on the first day of September, 1867.

There was testimony tending to show that while the contract ivas agreed upon at its date, and the consideration then paid, yet in fact it was delivered some three months after its date, but dated back by agreement. And the defense consisted in the claim that there was no liability until a survey and plat had been actually made; and also that Abell had used diligence to procure a survey, and that Munson had so acted as to extend the time of performance at various periods.

The statute of frauds requires every contract for the sale of lands to be in writing, and signed by the party making the sale. — 2 Comp. L. § 3179. The rule prohibits any enforcement of parol contracts; and while written contracts, which would have been lawful if unwritten, may be modified by parol subsequently in many cases, yet this cannot be done where the law requires the agreement to be in writing.— Goss v. Lord Nugent, 5 B. & Ad. 58; Stowell v. Robinson, 3 Bing. N. C. 928; Stead & Dawber, 10 A. & Ell. 57; Marshall v. Lynn, 6 M. & W. 109; Blood & Goodrich, 9 Wend. R. 68. And our statute goes further than the English statute, by making the contract void, instead of declaring that no action shall lie upon it.

We cannot look outside of the written contract to ascertain anything which is fixed by it. And if the time of performance is absolutely fixed by agreement, there is no room left for the inquiries concerning reasonable time which the court allowed to be made, and for its rulings concerning which most of the errors are assigned.

The agreement that Munson should take possession on the first of September, necessarily implies that the plat shall have been made previously, for otherwise there could be no identification. As the land had been already paid for, any long delay would have been unreasonable, and we must regard this date as the one fixed by the parties themselves. And if the contract was actually delivered after-wards, inasmuch as the vendor chose to execute a document which contained such a provision, he was bound to convey at once. There was no condition to be performed on the other side, for the land was fully paid for, and under such circumstances he was the only party bound to perform. The whole inquiry concerning reasonable time was irrelevant, and the rulings were more favorable to Abell than he had any right to request.

The plaintiff below, Munson, testified to a demand made in the spring of 1868, and that the property was then worth about $150; and other witnesses testified to its value at that time. It is objected that this testimony was irrelevant. We do not think this objection valid. Assuming the first failure to have been on the first day of September, or when the contract was delivered, if after that time, we cannot regard such evidence of value at a time so little distant, as not admissible to show what was the value of the land previously. The law has no presumptions on the subject of changeable values in real estate, and such proof, though liable to be overcome by evidence of a previous change in the interval, is not too remote. These things must be looked at in a common-sense light, and as they would be-regarded by ordinary men interested in such transactions. While land does undoubtedly change values, yet it does not usually, unless in some peculiar localities, fluctuate so rapidly as to render evidence extending over a few months entirely useless as a criterion.

If the court had declared this evidence conclusive, and had shut out evidence of value at other periods, it might have become necessary to consider whether, after the time for performance has elapsed on a land contract, the New York rule, requiring a demand before action, should be recognized, or would apply where no tender is needed, as in a case like the present, where the consideration had all been paid in advance. See Connelly v. Pierce, 7 Wend. 129; Blood v. Goodrich, 9 Id. 68. As the case stands, we do not feel called upon to consider the force or necessity of a demand, as fixing the date of liability for non-performance.

The case is a very clear one, and the only error that we can discover is that the plaintiff below conceded, and the court adopted, a series of admissions of legal privileges, to which defendant below was not entitled. These are not errors of which he can complain in this court.

The judgment must be affirmed," with costs.

■The. other Justices concurred.