author: Martin Ch. J.:

text:
    Chester S. Tucker v. John Rohrback.

      Prior judgment — when a bar.— A. judgment to constitute a "bar to a subsequent action must have been rendered upon the merits upon the same subject matter, and between the same parties.

      Where, in a suit by A against B. it appeared in evidence that the same subject matter introduced as a set-off by defendant was involved in a former suit wherein A and’ wife were defendants and B plaintiff, and “ that judgment was rendered thereon,” but did not appear what said judgment was, nor that it was upon the merits; — Hied, that such judgment was not a bar to defendant’s set-off.

      Heard, May 19.

      Decided October 2 .
    Error to Branch Circuit.
    This was an appeal to the Circuit Court from the judgment of a Justice of the Peace.
    In the Circuit, it was referred, and the referee reported, among other things, that this claim had been litigated in a prior suit, before. A. L. Potter, Esq., a Justice of the Peace of the city of Coldwater, wherein the defendant in this cause was plaintiff, and the plaintiff herein, with one Sophia Rohrback, were defendants; and that plaintiff in that case sought to recover for the same corn-stalks, for which he made claim, under a notice of set-off, in this case; “that said matter was submitted to the Justice, who rendered judgment thereon.” The referee found that said judgment was a bar to defendant’s claim of set-off, and exceptions to his report were duly filed. The judgment of the Court below sustained the report.

      T. M. Cooley and F. G. Fuller, for plaintiff in error:
    I. A judgment, to constitute a bar to a claim in a subsequent action, must have been rendered upon the merits, upon the same matter in issue, and between the same parties or their privies.— Outram v. Morewood, 3 East., 351, 364-6; Ward v. Wilkinson, 4 B. & Ald., 412; Carter v. James, 13 M. & W., 147; Simpson v. Pickering, 1 C. M. & R., 529; Jones v. Fales, 4 Mass., 255; Wilbur v. Gilmore, 21 Pick., 253; Gardner v. Buckbee, 3 Cow., 126; Burt v. Sternburgh, 4 Cow., 562-3.
    The' matter in issue is the same when the same evidence will support both actions; and this is the only test by which to know whether a determination in a former suit is a bar to a subsequent action.. — Outram v. Morewood, 3 East., 364; Towns v. Nims, 5 N. H., 260-3; King v. Chase, 15 N. H., 15; Kent v. Kent, 2 Mass., 355; Spooner v. Davis, 7 Pick., 148; Eastman v. Cooper, 15 Pick., 286; Arnold v. Arnold, 17 Pick, 9; Gilbert v. Thompson, 9 Cush., 348; Harding v. Hale, 2 Gray, 400; Rice v. King, 7 Johns., 21; Miller v. Manice, 6 Hill, 114.
    II. The judgment in the case of Tucker v. John and Sophia Rohrback, was not a bar to the set-off offered -in this case: 1. Because the parties were not- the same; 2. Because the issue was not the same. The issue in that suit was, whether the two defendants were indebted to Tucker for the present demand. That issue could only be supported by proof of a joint liability. Proof of the individual liability of John Rohrback would have defeated the claim. But on the issue in this case, the 'set-off must be supported by proof of an individual liability; and proof’ of a joint liability defeats it. The issue in the two cases was, therefore, antagonistic; and evidence which would support the one would defeat the other. — Outram v. Morewood, 3 East., 364-6; King v. Chase, 15 N. H., 15; Harding v. Hale, 2 Gray, 400; Miller v. Manice, 6 Hill, 122, 129-31.
   Martin Ch. J.:

That a judgment, to constitute a bar .to a claim in a subsequent action, must be rendered upon the merits,, upon the same mattér in issue, and between the same parties or their privies, is unquestionable.

In the present case, testimony was offered, and received, tending to show that a portion of the property here in litigation had been the subject of a former suit,, between this same plaintiff, and the defendant and his-, wife, and that judgment was given therein. What that judgment was, or upon what founded, we are not informed. It may have been rendered upon the merits,, or for misjoinder of parties,- or other collateral reason. We are not sufficiently informed respecting- it to attribute to it any force, or to determine its character. We only know, that it was a judgment against other parties than the one now before us as defendant.

The judgment is reversed, with costs, and a new trial ■ordered.

The other Justices concurred in the result.


source: Caselaw Access Project

author: Christiancy J.:

license: Public Domain

text:
    Francis D. Boardman v. John A. Acer.

      Separate judgments against joint trespassers — execution on one} bar to action on the other. — "Whero separate judgments are obtained against two or more joint trespassers, tbe suing out of an execution on one of tbom, is an election by tbe plaintiff to enforce that judgment, and no action will afterwards lio on tbe others.

      Submitted July 12, 1864.

      Decided January 28.
    Error to Kent Circuit.
    The action was debt, upon a judgment rendered in, the State of New York. The defendant, (plaintiff in error,) under a special notice attached to his plea, offered to show that the trespass, for which said judgment was rendered, was committed by him jointly with Josiah Snell and Elijah A. Hawkins, and that the plaintiff, (defendant in error,) in a° separate suit against said Snell and Hawkins, for said trespass, also obtained judgment, in the State of New York, against them; and that two executions had been sued out upon said judgment, against Snell and Hawkins — one before and one since the rendition of the judgment in suit, — which had been placed in the hands of the sheriff for collection. To the admission of this testimony, an objection was interposed, which was. sustained by the Court, and defendant excepted. Judgment for the plaintiff.

      Wdllcer d) Kent, for plaintiff in error:
    The question is, whether the issue of an execution against one of several joint trespassers, against whom several judgments have been recovered, is a satisfaction, of the other judgments.
    The question seems to have been settled in New York, in the case of Livingston v. Bishop, 1 Johns., 290. It is there held that separate judgments may be recovered against joint trespassers, and that the plaintiff may select the judgment he deems preferable, and by issuing execution on this, the other judgments, except as to costs, are discharged.
    The authority of this case has been recognized in later decisions. — 6 Johnson, 26; 7 Cowen, 344; Osterhout v. Roberts, 8 Cowen, 43.

    It has never been called in question in any case in that State. It must, therefore, still be considered as law there.
    There are many cases in other States, and in England, which maintain the New York doctrine, or go beyond it. Page v. Freeman, 19 Mis., 421; White v. Philbrick, 5 Greenleaf, 147; Wright v. Lathrop, 2 Ham., 33; Wilkes v. Jackson, 2 Hening & Munf., 355; Ammonett v. Harris, 1 Hening & Munf, 488; Broome v. Wooton, Yelverton, 67; Buckland v. Johnson, 80 Eng. Com. Law, 145.

      P. Smith, Jr., and L>. C. PolbrooTc, for defendant in error:
    The only question presented to the Court is, whether the issuing of an execution, on one of several judgments recovered for the same wrong and trespass, operates, and is a satisfaction of the damages, as to the other judgments.
    The decisions on this subject are not numerous, and the •older decisions very conflicting. It will be observed, however, that in the later decisions, the bearing continually tends to place judgments, for the same tort, on the same footing as judgments on contract, and nothing short of .a satisfaction of one judgment will discharge the damages, as to, or recovery against, the others.

      The following are the .latest cases on the subject, and the facts are almost the same as in the present case: Sheldon v. Kibbe, 3 Conn. R., 214; Sanderson v. Caldwell, 2 Aiken R., 195; Osterhout v. Roberts, 8 Cowen R., 43; Sharp v. Gray, 5 B. Monroe R., 4.
    The following are the principal American cases, and they refer to about all the prior cases: Livingston v. Bishop, 1 John R., 290; Marsh v. Berry, 7 Cowen R., 344; White v. Philbrick, 5 Greenleaf R., 147; Wright v. Lathrop, 2 Ham. R., 33; Hopkins v. Hersey, 20 Maine, 449.
   Christiancy J.:

Can a plaintiff, who has sued several joint trespassers in separate actions, recovered separate judgments, and taken out execution upon one of them, but failed to obtain satisfaction, sustain an action upon any of the other judgments ?

This is the only question in the case. There is some conflict in the cases upon this point; but, after a careful examination of the authorities, we are satisfied that the great preponderance of authority is against the right to maintain the action in such a case. When separate actions are brought against several joint trespassers, there is nothing which requires the damages recovered in one of the actions, to be measured or limited by those in the others. The amounts recovered will, therefore, almost of necessity, be different, aniel generally are so. Aside from a few cases, which hold the mere recovery of a judgment against one. joint trespasser to be a bar to any action against another, (which we •do not think can be supported upon principle or authority,) almost all the cases seem to agree that the plaintiff may sustain separate actions against the several joint trespassers, though he can have but one satisfaction; but he may elect de melioribus damnis, and must elect •^vkich judgment he will enforce; and having made his election of one, he cannot resort to the others.

On a first view, it would seem plausible that the plaintiff should be allowed, as in cases of separate judg-' ments against different parties for the same debt, (as, for example, makers and endorsers,) to proceed with the enforcement of his executions upon all his judgments, until one satisfaction is obtained. But in the latter class of cases, the judgments being for the same amounts, the plaintiff is not put to his election. In the case of several judgments against joint trespassers, the suing out of an execution is held, and we think properly held, to constitute an election in favor of the judgment upon which it is issued. It would lead, to much confusion, and great practical difficulties, to attempt to carry out and enforce this election, if it were made to depend upon any fact occurring after that time. If several executions were issued upon all the judgments at the same time, or successively, would the plaintiff be held to have elected in favor of that upon which property should be first seized? This might not be his act, but rather that of the sheriff. If part of the money be, made upon the smaller execution, could the. sheriff proceed to collect the whole of the larger, or only enough to pay the balance upon the smaller? If part be first made upon the larger, could the sheriff proceed to collect, on the smaller, enough to make the balance, provided such balance did not exceed the smaller?- It is easy to see that such a ■ course of proceeding would be difficult to be sustained upon any idea of election between the judgments, and that it would lead to many embarrassing questions, especially as the executions might be in the hands of different officers, and even in different .States. i

"We think, therefore, the evidence offered by the defendant below, in pursuance of his notice, was improperly excluded. The judgment must, therefore, be reversed, with costs, and a new trial granted.

The other Justices concurred.


author: Martin Oh. J.:

text:
    Martin B. Perkins v. Michael Dacon.

      Sale of personal property — delivery. — Tim defendant shippod wheat from Hudson to Toledo, consigning part of it to H. & Co., and part to F. On its arrival at Toledo the wheat was mingled with other like grain in the railroad elevator. The recoipts given for the wheat mado it deliverable to the consignees or order. Defendant made a formal sale of the wheat to plaintiff, and received payment for the same, and gave, him an order on F. for its delivery. Before plaintiff found F., or obtained delivery of the wheat, it was destroyed by the burning of the elevator, and plaintiff sued for’the non-delivery;— Held, that these facts did not amount to a sale of the wheat, inasmuch as the legal title thereto was not in the defendant, but in F., through whose co-operation alone it could have been vested in the plaintiff.

      Held, also, that said order of defendant on F. was an undertaking on his part that F. would complete the sale by delivering the wheat, and that defendant was liable for broach of that undertaking.

      Heard July 13, 1861.

      Decided January 28.
    Error to 'Lenawee Circuit.
    In the fall of 1862 the defendant, Dacon, was the owner of a quantity of wheat in store at the warehouse of the Michigan Southern and Northern Indiana Railroad Company, at Hudson station, and for which he held' the receipts of the Railroad .Company, in the following form:
    “No. 88. not transferable.
    “ Michigan Southern <& Northern Indiana JR. JR: Go.,.

      Hudson Station, Nov. 8, 1862.
    “ Received, under the conditions and stipulations of this receipt, for account of M. Dacon, 2105 pounds red wheat to be forwarded to -. And the duty and liability of this Company, as a common carrier, shall be ended on the arrival of the said grain in cars, at the station to which it is consigned, which shall he accepted by the consignee, as a delivery thereof, without notice; and after- such arrival, the only liability of said Company for said grain shall be that of a warehouseman. No transfer of this grain will be made, except -at the station to which it is ■destined,, and then only on the written order of the consignee ; and all claims for shortage must be made within thirty days from delivery to the consignee ’ or other carrier, or shall be deemed waived. This Company shall not be held liable for any delay in the transportation, or delivery of said grain, or for any injury from heat or dampness, or for any deterioration in quality, or loss by fire, or accident, or shrinkage, while in the possession of the Company.
    ' “ J. H. Galusha, Agent?

    The wheat was shipped by Dacon to Toledo, and á part of it consigned to P. T. Hamm & Co., and a- part to 33. Fitts.
    On the arrival of the wheat consigned to Hamm & Co., they paid to the Railroad Company the charges for transportation, and took receipts for the grain in the following form:
    “A. A.

      ''Michigan Southern <& Northern End. E. E. Elevator,

    “No.,814. Toledo, November, 12, 1862.
    “ Received in store from —-, three ' hundred and sixty-seven f-¡¡- bushels red wheat, subject to the order hereon of Hamm & Co., on payment of storage after ten days. Loss by fire and heating at owner’s risk. 367-§-8- bushels red wheat.
    “No. of notice, 655. Jas. S. Dickinson, Agent?

    On the arrival of the wheat consigned to Fitts, notice was given hiiñ of such arrival, and that receipts for the wheat would be given him on payment of the charges. He never paid the charges, and no receipt was ever given him for the grain, but it was placed in store in the Company’s grain warehouse at- Toledo, under the consignment to Mm.
    It appeared that grain, when received in the warehouses of the Railroad Company, was mingled with grain of similar grades belonging to other parties, and that deliveries were made from the warehouse at Toledo upon the' order of the grain clerk, made on the return of. the receipts before mentioned, and that on the giving of the order, these receipts Avere taken up:
    On the ITth of November, 1862, Hamm & Co. advised Dacon by letter, that they had received notice from the Railroad Company, of the consignment to them of two cars of red Avheat from him, and asking advice as to the disposition he cashed made of it.
    To this letter Dacon replied, under date of the 18th of November, requesting them to transfer 'the Avheat to B. Fitts, as the railroad agent had shipped it to them' by mistake.
    This letter Avas sent to Fitts and by him presented' to Hamm & Co., AAÚth a request that they would deliver him the wheat. Hamm & Co. replied, that they had no receipts from the Railroad Company, which would accommodate the amount of wheat due Dacon, but they had receipts for a larger amount, which they would get •split and hold for him, (Fitts.) To this, Fitts gave Ms assent. He called again a short time afterwards, and the receipts not then being ready, he went away, and •said it would make no difference, as he Avas instructed to hold the Avheat.
    On the 10th of February, 1868, ■ Dacon, at Hudson, .bargained the wheat to Perkins for $1,514.70. He said the wheat was in the hands of Fitts, at Toledo, and gave an order on him for it, as follows:

      “J5. Fitts, Mq., Toledo, Ohio:

    “Please deliver to Gillett & Niles, or order, eight hundred and fifty-two and ff bushels red wheat, and two hundred and ninety -§-§■ bushels white wheat, subject to charges, and place the same to my account.
    “M. Dacon.

      “February 10, 1863.”
    The order was given in favor of Gillett & Niles, because they were to act as the agents- of Perkins in obtaining the delivery of, and in managing the wheat.
    At the same time, Dacon delivered to Perkins the Hudson warehouse receipts. He had, however, no wheat in that warehouse at the time.
    Upon the delivery of the order on Fitts to Gillett & Niles, Perkins paid Dacon for the wheat.
    Gillett & Niles, by endorsement on said order, directed the delivery of the wheat to be made to Messrs. Hopkins & Griffith, or order.
    This order was received by Hopkins tfc Griffith, by due course of mail, on or before the 13th of February, and on search beings made for Fitts in Toledo, it was ascertained that he was absent in New York. He had no place of business in Toledo, but on inquiry it was ascertained that one Thomas B. Smith was acting for him in some matters. On application to him he was unable to give any information in reference to this business, but said he would write Fitts in New York.
    On the 15th of February Hamm & Co. went to the office of the Railroad Company and got their receipts split so as to have them in the amount necessary to make the delivery to Fitts upon the order of Dacon, but not being able to find Fitts, they were not delivered over to him.
    The elevator, in which the wheat was stored, was burned, with its contents, on the 25th of February. Fitts was in New York City all the time, from the 10th of February until after the fire. On the 10th, the books of the Railroad Company showed, that Fitts had in store with the Company at Toledo, only the amount of wheat originally shipped to him by Dacon, being 290§-§-bushels white and lOl-^ red.
    The wheat was never in fact delivered to Perkins or • any one for him.
    The action was brought to recover damages for the non - delivery of the wheat by Dacon in accordance with his contract.
    The Circuit Judge charged the jury, that the facts proven on the part of the plaintiff, were not sufficient to entitle him to a verdict, and that the giving of said order on Fitts, was a delivery of said wheat, and , the title vested in the plaintiff.
    To this charge, plaintiff’s counsel excepted, and the jury having found a verdict foy defendant, plaintiff brought error.

      A. Howell and M. P. Waite, for plaintiff in error:
    A delivery which will operate to complete a sale, must, unless there is an agreement to the contrary, place the property sold within the absolute power of the vendee, leaving nothing to be done by the vendor or his agents before the vendee can have actual possession. — Pratt v. Parkman, 24 Pick., 42; Hatch v. Bayley, 12 Cush., 29; Carter v. Toussaint, 7 E. C. L., 282; 5 Barn & Ald., 855; Story on Sales, Sec. 311; Boynton v. Veazie, 24 Maine, 288.
    A delivery of property in the possession of a third party, where there is no outstanding documentary evidence of title recognized in law, or by custom, as assignable, so as to carry with it the property itself, is only complete so as to relieve a seller from his obligation to deliver, when the party, having the actual possession has, in some form, acknowledged the title and authority of the vendee. A mere delivery order, not accepted by the bailee, will' not relieve the seller from - his obligation. The baileemust either make actual delivery, or, in some form, agree to hold for the purchaser. — Farina v. Home, 16 M. & W., 122; Whitehouse v. Frost, 12 East., 612; 2 Pars., Cont. 644,. note; Addison on Cont., 63; Potter v. Washburn, 13 Vt., 564; 2 Story, Cont. 317, Sec. 810, a.

    The order on Fitts could not operate to discharge' Dacon from his obligation to deliver, unless it was accepted by Perkins as such. Whether it was so accepted or not, is a question of fact dependant upon the acts and intentions of the parties, and to be determined by the jury. — 1 Pars, on Cont., 441; DeRidder v. McKnight, 13 John, 295; Gardner v. Gorham, 1 Doug., (Mich.), 507; Brenner v. Herr, 8 Penn. St., 106; Porter v. Talcott, 1 Cow., 383; Hart v. Boller, 15 S. & R., 163; Hatch v. Bayley, 12 Cush., 29.
    To constitute a symbolic delivery, sufficient to pass the title, the delivery must be of the usual evidence of" title to goods in the situation of those sold. — Story on Sales, Sec. 311; Pratt v. Parkman, 24 Pick., 47.

      T. M. Cooley, for defendant in error:

      Pelivery of property sold was not necessary at the common law. Where an agreement had been come to by the parties, the price agreed upon, and the article-designated, the title passed, subject only to a right in the selle}- to treat the' contract as abandoned, if the purchaser did not receive the property, and pay for it within a reasonable time. — 2 Bl. Com., 448; 2 Kent, 492, note; Chit. on Cont., 10 Am. Ed., 394; Bateman’s Commercial Law, § 183; Hinde v. Whitehouse, 7 East, 571; Willis v. Willis, 6 Dana, 49.
    The common law rule has, however, been changed by-the Statute of Frauds, which requires either: 1. That there shall be delivery and acceptance of the thing sold* or some part thereof; or, 2. That the purchase price, or something by way of earnest, shall be paid.— Comp. L., § 3184.
    The giving of a written order, by the seller to the buyer, directing 'the person in possession to deliver over the goods sold, is a sufficient 'delivery. — Plymouth Bank v. Bank of Norfolk, 10 Pick., 459; Hollingsworth v. Napier, 3 Caines, 186; Pleasants v. Pendleton, 6 Rand., 473; Lansing v. Turner, 2 Johns., 13; McCandlish v. Newman, 22 Penn., 460; Tarling v. Baxter, 6 B. & C., 360; Alexander v. Gardner, 1 Bing. N. C., 671; Thompson v. Gould, 20 Pick., 134-9; Wing v. Clark, 24 Maine, 366; Willis v. Willis, 6 Dana, 48; Means v. Williamson, 37 Maine, 556; Heine v. Anderson, 2 Duer, 318; Hooban v. Bidwell, 16 Ohio, 509; Olyphant v. Baker, 5 Denio, 379; Hutchins v. Gilchrist, 23 Vt., 88; Birge v. Egarton, 28 Vt., 291; Webber v. Davis, 44 Maine, 147; Mitchell v. McLean, 7 Florida, 329; Horr v. Barker, 8 Cal., 603; Kimberly v. Patchin, 19 N. Y., 330; Horr v. Barker, 11 Cal., 393; Hatch v. Bayley, 12 Cush., 29; Hatch v. Lincoln, 12 Cush., 31.
    ' If defendant had actually agreed to deliver the wheat, the risk of its accidental destruction would have''rested upon the plaintiff, and defendant could not be made liable therefor. — Terry v. Wheeler, 25 N. Y., 520; Broyles v. Lowrey, 2 Sneed, 22; Heine v. Anderson, 2 Duer, 318.
    Now, assuming that defendant was bound to deliver, when was there a breach of his contract ? If, when plaintiff had sought 'for, and failed to find Fitts, then defendant was entitled to a return of the evidences of title. But if not until the burning of the wheat, then its destruction excuses performance. — Terry v. Wheeler, 25 N. Y., 520.
   Martin Oh. J.:

In reviewing a case on exceptions, says Ch. J. Shaw, (4 Gray, 137,) it is necessary for this Court to consider precisely what the exceptions are, and not go at large into the evidence reported. Such evidence is reported, not as a statement of the facts to enable this Court to decide on the merits, but only for the purpose of showing- how the instructions refused, or given, apply to the case, and whether they were correctly given, or withheld, in point of law.

Adopting this correct rule, let us see what is the evidence reported in this bill of exceptions, by which the instructions given, and refused,- by the Judge .below, are to be tested. Without entering into details, (which will 'be found in the reporter’s statement of the case,) it will be sufficient to , state, that the substantial facts shown are, that Dacon was, on the 10th of February, 1863, the owner of a quantity of wheat, which he had caused to be shipped and forwarded, by the Michigan Southern and Northern Indiana Railroad, to Toledo, and to be deposited in the company’s grain elevator, a part- subject to the order of Hamm & Co., and a part to that of B. Fitts; that the consignment to Hamm &, Co. occurred through a mistake of the company, the intention and instruction of Dacon being that all should be consigned to Fitts; that upon ascertaining that a part was subject to the order of Hamm & Co., Dacon directed its transfer by them to Fitts,; that the wheat had been received into the elevator, upon the terms and conditions that it should be only delivered out, upon the written order of the consignee; that Fitts never obtained an order from Hamm & Co. for the portion of wheat consigned to them, nor paid the charges for transportation or elevating, nor accepted the consignment, as required by the shipping contract, for that consigned to himself; and was subsequently never actually, or constructively, the possessor of any of the wheat, or holding any relation to the company, respecting this property, which could authorize any order by him concerning it, or any control over it; that Dacon, on said 10th day of February, 1868, sold said wheat, in the elevator, at Toleclo, to Perkins, and received full payment therefor, and gave to Perkins, a written order upon Fitts for the delivery thereof; that such order was drawn in favor of Gillett and Niles, so that they might obtain delivery of the wheat, and they accepted it, only upon the understanding, that the wheat should be placed under the dominion of their Toledo correspondents, Hopkins and _ Griffith— refusing to have anything to do with it while remaining under the control of Fitts; that, accordingly, the order of Dacon was endorsed by them to Hopkins and Griffith, and forwarded immediately, that they might obtain a delivery of the wheat, they to act only as agents to obtain its delivery, and hold it under the receipt of the company, subject to the order of Gillett and Niles; upon this order, Hopkins and Griffith endeavored to obtain from Fitts the necessary and actual delivery of the wheat, but unsuccessfully; that Dacon was promptly informed of such want of success, and undertook a delivery,' going himself to Toledo for that purpose, but failed. Subsequently the wheat was burned.

The receipt of the company to Dacon, upon the shipment of the wheat, expressly provided that no transfer of the wheat would be made, except at the station to which it was consigned, and then only upon the wuitten order of his consignee. That, according to the' custom of the company, wheat deposited in its elevator, was, (unless special directions to the contrary are given,) mingled in a common mass with wheat of like kind and quality, and that the delivery, upon orders, was not of the specific grain elevated, but of a corresponding amount from such general mass of like quality and kind, and this custom appears to have been known and recognized by both Dacon and Perkins in this transaction, so that a transfer. of the warehouse receipt to Perkins, would have been a full compliance with any promise to deliver, made by Dacon to him, and especially of the order upon Fitts.

This action is for the non-delivery of the wheat, which, it is evident, was bargained and sold, but which, Perkins contends, was also promised to be delivered, and that, as the loss occurred to him from its non-delivery, and without fault upon his part, he is entitled to recover the amount of his actual loss, as upon a non-executed contract.

The first question suggested by the bill of exceptions is, whether the delivery of the order upon Fitts was a delivery of the wheat by operation of law, or a question of fact for the consideration and determination of the jury. It is perfectly obvious that the parties did not contemplate an actual manual delivery of the identical wheat which was the subject of sale; for the wheat, after having been mixed with other in a common mass in the elevator, could not be thus delivered. The question of a delivery, then, depended upon the power of Fitts to give an order upon the railroad company, under which the latter could recognize Perkins as the owner of the wheat, and be enabled to respond to his orders or directions respecting it. The delivery of such an order, by a competent party, would be constructive or symbolical delivery, and as available as manual delivery, unless a contrary intention of the parties was proven. But Fitts. is shown to have been in no situation, so that he could make delivery, of any kind,. when the order .upon him was given to Perkins, and up to the time of the destruction of the wheat. Could the order upon him, then, by construction of law, have conveyed any constructive or actual possession of, or dominion over, the wheat ? Had the wheat been held by the railroad company, subject to the order of Dacon himself, and an order been' given by himself directly to the company, quite a different question would be presented from that presented to us by this case. In such case, Dacon’s order upon the company would, in the absence of proof of any special agreement respecting the delivery of the wheat,' and with proof of payment for it, be construed • in law as a symbolical and full delivery, and the risk of loss by fire, or other cause, would attend upon the title. — See Terry v. Wheeler, 25 N. Y., 520. Such, I think, is the rule of law, in every case of bargain and sale without delivery, or a special promise to deliver, and no payment down made, but time given, as between the immediate parties to the contract, (however otherwise’ as to creditors, or other third parties,) — (See Pratt v. Parkman, 24 Pick., 42) — and I think it to be sound law that no particular form for the sale of personal property is required, a-nd that all that is necessary, (as respects the immediate parties,) is that, such parties should intend — the one to part with his property, and the other to become its owner, and that this union of intention constitutes a contract of sale. This question •of' intention, if to be gathered from a construction of a written instrument solely, is a pure question of law; if otherwise, a mixed question of law and fact, (See 2 Parsons on Contracts, 4th Ed., 322,) and the true rule is that, as between buyer and seller, a formal delivery is not necessary; but as to other parties, there must be not only an agreement to sell, but a delivery of the thing sold; but when an actual transmission of the thing itself, by the seller to the buyer,, is impossible, constructive or symbolical delivery, producing, as far as practicable, the same effect, is allowed. — Id; see, also, Phelps v. Cutter, 4 Gray, 137. Thus, in Atwell v. Miller, 6 Maryland, 10, it was held that, while delivery is á fact to be found by a jury, (which, I think, is not true when solely dependent upon the construction of a written instrument, but true otherwise,) constructive delivery is a mixed question of law and fact, and the circumstances, or. facts, necessary to constitute such delivery,, must be found by the jury, as in case of actual delivery; and either party has the right to ask instructions of the Court as to the legal effect of any particular circumstance which may be offered to the jury, and from which delivery is to be deduced. — See, also, Artcher v. Zeh, 5 Hill, 205. In Artcher v. Zeh, it is held that, in questions of' actual, as well as constructive or symbolical delivery, the acts of the parties must be of such a character as unequivocally to place the property within the power, and under the exclusive dominion, of the buyer, and that this is the doctrine of those cases which have carried the principle of constructive delivery to the utmost limit. ■ — See, also, Atwell v. Miller, supra. And in speaking- of' the application of the Statute of Frauds to. contracts of' sale, Prof. Parsons, (2 Parsons on Contracts, 324,) says that mere delivery, by the buyer, of the seller’s order on a bailee does not serve to satisfy the statute, without some act of possession and acceptance of the property by the buyer, or the assent of the bailee to hold it for the buyei-.

Now to apply these principles — which I think to be correct' — -to the case at bar. Dacon sold the wheat to Perkins, . and received his pay therefor. He gave an order upon Fitts, who was .his consignee, through whose order alone, upon the railroad company, the wheat could be procured by Perkins. But Fitts had never paid the shipping charges, or taken any warehouse receipts, for the wheat ' directly consigned to him, nor obtained a transfer of the wheat subject to the order of Hamm & Co., nor done any act by which the company could be called upon to recognize him as Dacon’s consignee, orbailee, of the wheat. Fitts was not to be found so. that the order could be presented to him, and, if he had been found, -he could not have made prompt, delivery, either actual or constructive. Now it is a sound rule of law that, if the seller does what is usual, or what the nature of the case makes convenient and proper, to pass the effectual control of the goods from, himself to the buyer, this is always a delivery, and nothing less than this is such. — 2 Parsons on Contracts, 324-5. Was this done in the case before us ? Clearly not; for the order was upon a person having, at the time, neither actual nor constructive dominion over the property. But the Circuit Judge instructed the jury that it had been done, in his charge, that the order on Fitts by Bacon was a delivery of said wheat to said. Perkins, and that the sale thereof was complete. This question of delivery, which is aside from that of sale in this case, should have been left to the jury as one of fact, under instructions from the Judge that the delivery of the order upon Fitts was, under the circumstances, no delivery, unless it should be found, from further evidence, or attendant circumstances, that the 'intention of both buyer and seller was that it should be such — that of the seller to part with the wheat, and that of the buyer to accept it, through the order holding Fitts as his bailee, from its delivery, and until iff could be transferred, according to the exigency of such order.

No legal effect could be attached to this order, ■countervailing the obvious intention of the parties. Upon this question there was pertinent and relevant testimony, which the jury 'should have had submitted to them, and .which might, and would, probably, have satisfied them that the order upon Fitts was not one which would give Perkins any dominion over the property, consistent with the rights and obligations of the railroad company. The company was only obligated to deliver upon the order of Bacon’s assignee. Bacon was the actual owner of the wheat, but had parted with dominion over it, and had, by the terms of his shipment agreement, consented to such arrangement. He could, therefore, make no order upon the company, respecting this- wheat, which it would be bound to execute. The order was made, accordingly, upon Fitts, a middle man, who, as is shown, could not execute it. Thus the whole question was one for the jury, under proper instructions from the Court, but could not be taken away from them. It appears to me that Fitts can, in no sense, be considered as the bailee of the wheat, under any view which may be taken of the effect of Dacon’s order, considering his neglect to obtain the usual and requisite evidence of control of the property, under which alone the railroad company could recognize him; and if the order was upon one who could not make delivery, it' could not, of course, b¿ any symbolical or constructive delivery. The fact, also, that the order was given to Gillett and Niles for the purpose of obtaining delivery, together with Da con’s subsequent acts, were evidence which should have gone to the jury for consideration, to ascertain whether any agreement to deliver, was made and performed. The Circuit Judge seems to. have first laid down a controlling rule for the guidance of the jury, viz.: That there was an actual, absolute delivery of the wheat . to Perkins, by the delivery of the order upon Fitts. This must have controlled their whole deliberation and consideration of the case. It is true that, afterwards, the Judge left the question of the delivery to the jury, to some extent, but yet, as it appears to my mind, from considering the bill ■ of exceptions, with the controlling proposition above noticed prominently before them, as the law of this case, and in the light of which all collateral evidence should be weighed by them. From the result of the trial, and the evidence set out in the bill of exceptions, it would seem to have taken full effect, and to have misled the jury throughout their deliberations. In such case, the judgment cannot be sustained. — See The People v. Scott, 6 Mich., 297. This view disposes of the whole case, as all the charges of the Judge, excepted to, hinge upon this proposition.

Judgment is reversed, and a new trial ordered.

Campbell J.:

Perkins sued Dacon for the non-delivery of wheat. Dacon had sent forward wheat to Toledo- — a part to Hamm & Co., and a part' to B; Fitts — and the receipts made it deliverable only to them, or their order. Hamm & Co. were directed to transfer the wheat under their control, to Fitts. The wheat was all mingled, in bulk, with other wheat of like quality, in the railroad elevator. Hamm & Go. had warehouse receipts, including their consignment in a mass with other wheat. The testimony tended to show, that they had never transferred the wheat to Fitts. Dacon sold the wheat to plaintiff, and gave him an order on Fitts for delivery. He also gave him the way-bills, which made it deliverable to Hamm & Co. and to Fitts. Fitts was not in Toledo; and plaintiff introduced testimony tending to prove, that he made diligent efforts to obtain the wheat, but was unable, by • reason of Fitts’s absence, to do so. The elevator was burned up, and the wheat, with a large quantity belonging to other parties, was - burned also. Plaintiff thereupon sued Dacon, because .he was not able to obtain the wheat on his order. The condition of the wheat, as to control and ownership, has a very important bearing upon the legal questions raised upon the trial, and requires to be carefully considered. At the time of the bargain between plaintiff and defendant, the wheat itself was in the actual possession of the railroad company, and mixed with the common mass held in store. A portion of it was held under receipts to Hamm & Co., and a portion subject to the order of Fitts. As between Dacon and these Toledo factors, the ownership was equitably in Dacon, and he had a -right to direct what disposition should be made of the wheat. But if those persons should refuse to obey his instructions, he had no means of protecting his interest in the property itself. He could not recover it from the elevator, and he could not reach or control the muniments of title, which, by his own action, had been Arested in them, and not in himself. While he had an interest as owner, which justified his undertaking to dispose of the property, ho had, nevertheless, no . means, or right, of reaching it, excepit through the actual, co-operation of the persons to whom he had transferred its control. A sale, under such circumstances, "which should excuse Dacon, should his vendee fail to obtain the wheat from the Toledo agents, would be, not a sale of wheat, but a sale of a right of action against the agents. The testimony and the charges go upon the hypothesis, that it was the wheat itself which was purchased and sold; and we are therefore, confined to that view, winch is not disprated, and which is maintained by the defendant’s own statement in the cause. And the questions for our determination depend on the character of the transaction, as a complete, or incomplete, sale.

■ That delivery is not always necessary to make a sale perfect, is very well settled. But there must always be an identification of the tiling sold, in some way, so that it may stand, as set apart from other things, with which it might be confounded, and there must be a present transfer of the entire ownership. The wheat, in this case, could not be identified in kind, until actually measured out. If we assume, (as, perhaps,' there was evidence tending that way,) - that a sale would be sufficient, which transferred the right to a specific number of bushels in the elevator, that title could only pass when the purchaser received a transfer of the title papers, or evidences which would establish the i ownership in him, and which the railroad company would be legally bound to recognize. Inasmuch as Fitts had been made, by Dacon, his representative in the premises, and vested with the rights of legal ownership, the title could only be passed to plaintiff through his co-operation. The order which Dacon gave plaintiff, on Fitts, cannot be regarded as an order to deliver that which was already vested in plaintiff. It was necessary to transfer the title itself, that Fitts should act upon it, and pass over the property by his own intervention. Until Fitts should act, the plaintiff could obtain no title whatever. I think the order on Fitts was, therefore, an undertaking, by Dacon, that Fitts would complete the sale, which was, thus far,- incomplete, and needed just what the order called for to make it operative, — that is to say, an actual or constructive delivery.

The exceptions are all based upon a different view presented to the jury, or upon a refusal to charge in accordance with this view. The same error pervades them all, and it is not necessary to . refer to them in detail. I think the judgment should be reversed, with costs, and a new trial should be granted.

I deem it unnecessary to consider the peculiar nature of the interests owned by depositors of wheat in an elevator. We held, in Erwin v. Clark, that there were property rights, which might, however, be subject to some conditions, not applicable to grain kept separate. The necessity of recognizing the title, as vesting in those who have been lawfully placed in control of it, in their own names, arises from the nature of the bailment, and the contract of the bailees, and cannot be denied by parties who have themselves caused the relation to assume that shape. And when such parties undertake to sell, they are bound to take every step necessary to get the title vested in the purchasers.

Christiancy ■ J. concurred in this opinion.


author: 'Campbell J.:

text:
    Peter Huyser, and others, v. David Chase.

      Tenancy at will — notice to quit. — Under a verbal lease for twenty - one months fr.om and after the 31st of July, 1862, the lessee entered into possession of premises and paid rent monthly in advance, according to the terms of the lease. On the 10th of July, 1863, notice to quit said premises on the 1st of August following, was given. Held, That said lease being invalid under the statute of frauds, the lessee was a tenant at will, and said notice was insufficient to terminate his tenancy.
    Held, also, That as said lease was to run from and after the 31st of July, the term began on the 1st of August, and that said notice should have be®n served a full month previous to August 1st.

      Heard October 7, 1864.

      Decided January 28.
    Error to Wayne Circuit.
    The case was brought to the Circuit by appeal from a Circuit Court Commissioner, before whom proceedings were- commenced, .by defendant in error against the plaintiff in’ error, to recover the possession of leased premises.
    The finding of the Court was as follows:
    “That in the latter part of July, 1862, the complainant leased to the defendant the premises described in tbe complaint in tbis cause, for twenty-one months from and after the thirty-first day of July, in- the year eighteen hundred and sixty-two, at a rent of $200 per annum, payable in equal monthly installments of sixteen and two-thirds dollars, at the commencement of each month, and for certain specified repairs, and also for general repairs to he made on said premises; that the terms and conditions of the lease were then agreed upon verbally, and the same was to he reduced to writing, and signed by tbe parties; that tbe defendants thereupon went into possession of the premises before the lease was reduced to writing and executed; that thereafter the complainant had the lease reduced to writing, as agreed upon, and offered it to defendants to execute, at two different times, at both of which they refused to. execute the same, and no written lease was ever executed between the parties, and no other contract or agreement was ever made than as above stated; that the entry of said defendants was at the commencement of said agreed term, and the defendants paid, and the complainant accepted the monthly rents, as specified in said. verbal agreement, and after the refusal of said defendants to execute said written lease until the thirty-first day of July, in the year eighteen hundred and sixty-three, being for twelve months, the last receipt for the. same being as follows, to wit:
    “Received of R. & R. Huysei-, sixteen dollars and sixty-six cents, in full for rent up to July 31st, 1863.
    “David Chase.
    “Detroit, July 1, 1863.”
    That on the tenth day of July, eighteen hundred and sixty-three, the complainant gave the defendants notice in writing to quit the said premises, and give up jiossession thereof to him on the first day of August then next, which notice was in the following words and figures:
    “Detroit, July 10, 1863.

      “Messrs. JP. & JR. JEEúyser:

    “You are hereby notified to • leave and vacate my house and premises you now occupy, on Woodward Avenue, it being house No. 186, on the first day of August next, as I want to take possession of the same at that time.
    “David Chase.”

      That the defendants, after the time specified in said notice, refusing to give up the possession of the premises, the complainant instituted the proceedings, brought up by the appeal in this cause, before the Circuit Court Commissioner.
    And the Court, from the facts found as above stated, finds as a conclusion of law, - that the defendants held over the premises described in the complaint, after the time for which they were demised or let to them, and contrary to the agreement under which they held, and that the complainant was entitled to claim and have the restitution of the said premises in this suit, and renders .judgment accordingly, with the costs of the suit, against said defendants.
    And as to the points of law upon which the Court was requested, in writing by the defendant’s counsel, to find particularly, the Court finds:
    1. That the facts as hereinbefore mentioned, as found to be true, constituted the said defendants tenants from year to year, and that at the end of’ the first year from the entry, the complainants might proceed in this action without notice to defendants.
    2. The facts as above found did not constitute the defendants tenants, from month to month.

      Knight and Pennison for plaintiffs in error:
    The defendant in error, (the landlord,) having accepted rent from' plaintiffs in error, (the tenants,) according to the terms of the original agreement, after the tenant had refused to execute the lease, a tenancy from month to month was created, commencing from the time of entry. — Anderson v. Prindle, 23 Wend., 616; Coffin v. Lunt, 2 Pick., 70; Schuyler v. Legget, 2 Cow., 663; Bradley v. Covel, 4 Cow. 349; People v. Rickert, 8 Cow. 226; Nichols v. Williams, 8 Cow., 13; Kerr v. Clark, 19 Mo., 132; Ridgely v. Stillwell, 25 Mo., 570; Den. v. Drake, 2 Green, N. J., 523.

      2. The contract being for a tenancy from month to. month, to entitle the landlord to dispossess the tenant, he must show the service upon him of a month’s notice to quit, at the end of some month, computing the time from the commencement of the term, and the day mentioned in the notice must correspond with the day on which the term commenced. — Prickett v. Ritter, 16 Ill., 96; Prescott v. Elm. 7 Cush., 346; Baker v. Adams, 5 Cush., 99; Oaks v. Monroe, 8 Cush., 282; Currier v. Barker, 2 Gray, 224; Willard v. Baker, 2 Gray, 336; Hanchet v. Whitney, 1 Vt., 314; Taylor’s Landlord and Tenants, §416-7-8; Chitty on Contracts, 346-7; Adams on Ejectment, 139, 145; 2 Esp., 717.
    A notice to quit at any day subsequent to the termination of the lease, is a consent by the landlord to a holding over after the term. — Doe v. Lea, 11 East, 312.

      Ward & Palmer, attorneys for defendant in error:
    Under the circumstances it was a correct conclusion, of law, that plaintiffs held the premises contrary to the. agreement under which they held, and they were liable to be removed without previous notice to quit. — Comp. Laws, §4985; Phillips v. Covert, 7 John., 1; Catlin v. Hayden, 1 Vt., 375.
    If there had been no agreement, that the lease should be .reduced to writing, and signed by the parties, the whole matter would be reduced to. a verbal letting for more than a year, and therefore void, (C. L. §3119;) but if the plaintiffs took possession under such a lease, it would operate as a lease, for a year, especially as- an annual rent Avas reserved, and they would be liable to. be removed from the premises at the end of the first year without notice to quit; but, if they were allowed to enter upon the second year without objection, it would become a tenancy from year to year, and in a suit of ejectment they would be entitled to six months’ notice.. "to quit; but under tbe tenant 'act- might they not be proceeded against without notice as holding over after the time for which the premises were demised or let to them. — 2 Pick, 71, note; N. Y. R. S., vol. 2, p. 512, §28; Drake v. Newton, 3 Zabriskie, 111; Clayton v. Blakey, 8 Term. R., 3; Taylor's Landlord and Tenant, §79, §468; 10 Viners' Abr. Title, Estate, B; Nichols v. Williams, 8 Cow., 13; Rowan v. Lyttle, 11 Wend. 616; 3 Kent's Com. 400; 4 Kent's Com., 114.
   'Campbell J.:

Chase agreed with the plaintiffs in error, to lease to them certain premises, set forth in the case, for twenty-■one months, from the 31st day of July, 1862. The ■agreement was made during that month, and the lease was to be in writing. The lessees were put in possession, but afterwards refused to. accept a written lease. Chase received rent, however, from month to month, in advance, up ' to July 31st, 1863. July 10th, 1863, he notified the tenants to quit on the 1st of August, and ■on their refusal, he brought this action to oust them, and obtained judgment in his favor, which is now brought up for review.

The lease was not valid, under the Statute of Frauds, and the tenancy must be regarded as a ten■ancy at will. Our statutes have provided that estates at will may be terminated by a notice of three months; but, where the rent reserved in a lease at will is payable at periods of less than three months, the time of !such notice shall be sufficient, if -it be equal to the interval between the times of payment. As the lease was to run from and after the 31st of July, the term began on the 1st of August, and the notiee would have been good, had it been served a full month previously. As the statute covers the entire case, it is not necessary "to consider any other questions discussed.

Chase had no cause of action, inasmuch as his notice did not end the tenancy; and the plaintiffs in error are entitled to judgment on the finding, with costs of both . Courts. The judgment below should be reversed, and a new judgment entered accordingly.

Christiancy J. concurred.

Martin Ch. J.:

The facts of this case clearly show that the ’'plaintiffs in error Avere tenants at will, under Chase. The contemplated contract, for a leasing for twenty-one months, was never reduced to writing, and was, therefore, void, under the Statute of Frauds. The entry of the plaintiffs was, consequently, under no laAvful agreement for any specific term; and the consent of Chase to the occupancy, and the acceptance of rent by - him, establishes nothing, but that such occupancy Avas .at his will. No term was fixed, and no rent agreed upon for any term. The acceptance of a payment of rent monthly, proves nothing, in the absence of a specific agreement that the tenancy should be one from month to month, or for a specified time. It only shoAVS that the occupancy was permitted at the landlord’s will. Such being the law of this. case, it follows that the notice of the 10th of July, 1868, given by Chase to the plaintiffs, to surrender the premises on the 1st day of August following, was not a compliance Avith the statutory requirements in cases of tenancy at will, as the statute requires' three months’ notice to be given to the tenant, unless the rent reserved is payable at periods less than three months, in which latter case, a notice shall be sufficient, if equal to the interval between the times of payment. In the present case, the notice was insufficient, in any aspect of the case. Had the plaintiffs neglected, or refused to pay rent, a different rule would apply.- — -See Comp. Laws, §280'?.

The judgment must, be reversed, and a judgment rendered in favor of the plaintiffs in error, for costs of both Courts.


author: Campbell J.:

text:
    Lawrence Brewer v. Chauncey B. Palmer.

      tSchool districts — their consolidation — former debts. — Where two school districts are united, in pursuance of the statute, (1 C. X., §2335,) the district so formed is alono liable for all the prior debts of each.
    Accordingly, where school district number five was attached to district number two, and a judgment having been subsequently obtained against the former, the township supervisor refused to assess the amount of the same against the property of number five; — Held, That said judgment was a nullity, and that the supervisor was not liable, for refusing to make said assessment.

      Heard. October 20, 1864.

      Decided January 28.
    Error to Van Burén Circuit.
    This was an action on the case brought against the defendant, as township supervisor, for refusing to assess upon the taxable property of school district number five, in the township of Almena, the amount of a judgment, which the plaintiff had recovered against said district.
    The case was tried by the Court, without a jury, and the finding and judgment were as follows:

      “JFirst. That for a long time previous to, and Tip to May 16th, 1857, there was existing, and ■ organized, a school district, in the township of Almena, in the county of Van Burén, organized, and distinguished as school district number two, of the township of Almena; and that, on said 16th day of May, 1857, the school inspectors of said township formed, out of a part of the territory of said district, a new. district, and named, and numbered it district number five, of the township of Almena.

      “Second. That such proceedings were thereafter had, that said district number five was 'Organized, in the year 1857, and a moderator, director, and assessor elected, each of whom accepted office, in writing.
    “ Third. That a school-house was erected in such new district, and a public school kept therein; and that afterwards, and on the 3d day of July, 1858, the school inspectors of said township, by a resolution, to take effect from and after the 1st day of September, 1858, attached said new district number five to said district number two, thus giving to district number- two the same territory it possessed before the formation of said district number five.

      “Fourth. That the now plaintiff caused to be issued, out of this Coiu't, in his favor, a summons, dated the 20th day of December, 1858, and against school district number five, of the township of Almena, which was returned by the under-sheriff; that on the 23d day of December, 1858, he did serve the same on said school district, by showing to Horace Dyer, the assessor of said school district, said summons, with the seal of the Court impressed thereon, and at the same time, leaving with him, the said Horace Dyer, assessor as aforesaid, a true and correct copy of said summons, duly certified; that there was no appearance on the part of said defendant, or supposed school district, though the said summons was returned, and filed on the return day thereof, being the 4th day of January, 1859 ; that at the April term of said Court for the year 1859, and on the 6th day of April, 1859, the said Court gave judgment, in the cause so instituted, in favor of said plaintiff, against school district number five, of the township of Almena, for want of appearance,and plea, for $400, and costs, $20.85 ; and that said judgment has never been appealed or altered, nor the • whole, or any part of it, paid, and remains as when given.
    “ Fifth. That a certificate to the supervisor was never made by any assessor, as directed by statute; that the defendant was supervisor of the township of Almena, from the annual township election of 1861, until the annual township election for 1862 ; that the plaintiff obtained from the clerk of this Court a certificate of the judgment, as provided by law, and on the 18th day of October, 1861, personally served the same on the defendant; that the rnajj, showing . the boundaries of school districts in Almena, filed with the defendant, as supervisor for 1861, showed no district number five, in said township, and that no other map was filed with him.
    “ Sixth. That the defendant neglected and. refused to proceed to assess the amount of said judgment, or any part thereof, on any taxable property in the township of Almena. i
    “And as a matter of law; that the plaintiff is not entitled to recover, and that judgment be rendered in favor of the defendant, and against the plaintiff, and that the defendant recover his costs of this suit to be taxed.”

      S. T. Douglass, for plaintiff,
    cited the following authorities: Waldron v. Lee, 5 Pick., 323; Blackstone v. Taft, 4 Gray, 250; Grant on Corp., 620-22; School Dist. No. 3 v. Macloon, 4 Wis., 79; Tucker v. Wentworth, 25 Maine, 393; Kingman v. School Dist. No. 13, 2 Cush., 426.

      C. I. Walker, for defendant in error:
    I. There is no question but what the school inspectors had power, under the general provisions of the statute, authorizing them to divide the' townships into school districts, and to regulate and alter the boundaries of the same, as circumstances shall render proper, to re-annex district number five to district number two'. This is clear from the statute, and has thus been decided by this Court. — People v. Davidson, 2 Doug., (Mich.,) 121.
    H. The effect of the dissolution of district number five was, to extinguish its debts, whether due to or from it, and render it impossible to maintain any suit against it. For all such purposes, it Was as if it had never existed. — Angel & Ames on Corp., 160, 750; Mumma v. Potomac Co., 8 Peters, 281; Bank of Miss. v. Wrenn, 11 Miss., 791; Read v. Frankfort Bank, 23 Me., 418; Wilcox on Corp., 325.
    Although the authorities relate more especially to private corporations, the same principles must necessarily apply to municipal corporations. 'They, cannot be extinguished for one purpose, and continued in existence for another, except under some special provisions of the statute, such as apply to private corporations under our own law. — 1 Comp. Laws, §2150.
   Campbell J.:

Plaintiff sued defendant for neglecting, as supervisor, to levy a tax on the district formerly known as school ■district number five, in the township of Almena, in Yan Burén county. This district had once formed a part of school district number two, and was, in September, 1858, attached again to that district, which retained its number as before. The suit, on which judgment was obtained against school district number five, - was commenced in December, 1858, by service upon the proper officer, if one existed, and judgment was taken by default. Judgment was given, in this cause, for the defendant, on the ground that district number five had ceased to exist.

The power which was formerly, in People v. Davidson, 2 Doug., (Mich.,) R., 121, said to have been implied in ■the board of inspectors of each town, to combine school districts, was afterwards granted expressly by Section .2335 of the Compiled Laws, which was in force when tbe action of tbe town authorities of Almena was had, in uniting the districts referred to. By that action, the territory was all made to embrace but one district. The statute is very clear upon this point. But the question whether, by the change of limits, either of the old organizations became entirely extinct for all purposes, is one of some importance. It is difficult to maintain that the Legislature coiild have designed to extinguish all claims, which had arisen upon the faith of a corporate authority in the old districts; and it may, perhaps, be questioned, whether such impairing of contracts could be lawfully permitted by the Legislature, to be accomplished ' at the uncontrolled discretion of town officers. We are not at liberty to assume that any such result should be accepted, without a strict necessity for such a conclusion.

The only statutory provisions expressly referring to changes in the boundaries of districts, apparently refer to partial changes, although the language may admit of a broader application. But we may, at • least, derive from these provisions some light upon the character of these corporations. And, when we consider that the-power to combine districts was originally derived from the expressed power to change- and regulate boundaries, there is reason to believe that these provisions were-meant to reach all cases. When any change is made, by adding to one district any part of another, that district which retains the school-house of the divided district, is made liable to refund to the portion sot off from it, the proportion of the latter in the value of the property retained, less its proportion of debts, which were chargeable upon the whole district, as it was before division. In other words, it is evident that the district retaining the school-house is the corporation liable for the debts, and retains the entire corporate rights and powers. And where this district has, at the same time, been augmented from another, the district, as augmented, obtains these rights, and incurs these obligations. — See Comp. Laws, §2318, §2321. When two districts are' •annexed, without any other change in their boundaries, the mere fact that one number is preferred to another, does not change the real character of the annexation. Applying the rules just referred to, it will be seen at once that the debts of both districts, and- the credits ‘of both, would unite in the newly-formed district. To this extent, the statutory provisions may apply without difficulty. And, in the absence of any statutory provision for any different rule, we think the entire district, as a district, must be held responsible for the debts of both, as it receives the property of both. There may be equitable reasons why-old debts should be charged upon the separate lands of the old districts, but we cannot, without a statute, undertake to regulate these equities. And we have no doubt that the union of districts is to be considered, under the statute, a consolidation of the former corporations, and not the annihilation of one or both. The suit against school district number five was improperly brought, because no such district remained as a separate organization. The suit- should have been against the consolidated district, as succeeding to the liabilities of its parts. The judgment being a nullity, the supervisor was not bound to regard it. The Comt below, therefore, did not err in refusing to hold him responsible for declining to levy the amount -by tax.

Judgment must be affirmed, with costs.

The other Justices concurred.


text:
    Albert L. Catlin v. Matthew W. Birchard.

      Action for money had and received — liability of trustee on implied promise —consideration.— An undertaking by one to act as trustee in receiving money for the benefit of another, is a sufficient consideration to sustain an implied promise to account for such money; and where a trustee so receives money, and fails to pay it over, he is liable, in an action, for money had and received.

      Parol evidence — trust character of payee of a note may be shown by. — Parol evidence is admissible to show that the payee of a promissory note, who has-received the money upon it, was trustee simply for another, and that the-money so received by him was in that capacity.

      Heard October 11, 1864.

      Decided January 28.
    Error to Wayne Circuit. ■
    The action was assumpsit for money had and received* to which defendant pleaded the general issue.
    The facts sufficiently appear in the opinion of the Court.
    6?. V. W. Boihrop and B. C. Holbrook, for plaintiff in error.

      A. B, Maynard and Jerome & Swift, for defendant in error.
   Campbell J.:

Birchard sued Catlin for money had and received — the claim arising from a note of Wm. F. Smith, payable to Catlin, and claimed to have been for Birchard’s benefit. The testimony, so far as it bears upon the legal questions raised, tends to show that Birchard had been held as surety for a firm known as Smith, Dwight & Co., (composed of Rollin C. Smith, Alfred A. Dwight, and Wm. F. Smith,) and his property had been sold to pay a debt known as the Birmingham Bank debt. ,The property of this firm,' or most of it, had been conveyed to Wm. A. Howard, and by him to Wm. Warner and Albert L. Catlin, who were to manage it, aqd pay off certain debts, and make other arrangements .mnecessary now to refer to. ¥m. F. Smith proposed to purchase certain of this property, and the terms were to be agreed upon by Warner, Catlin and Howard. One of the terms proposed was, that he should pay to Smith and Dwight, (R. O. Smith and Alfred A. Dwight,) four thousand dollars, and interest, being one-third of the Birmingham debt, for which Birchard’s property had been sold. Wm. A. Howard consented to these terms, and authorized them to be varied as Rollin C. Smith should determine. Warner and Catlin, with the consent of R. C. Smith, finally made an arrangement, in which no mention was made of the Birmingham, or Birchard, debt, specifically; but a note was given for four thous- and dollars,. and interest, payable to Catlin, and the object and consideration of it were not referred to in the instrument. It is now claimed by Birchard that' this .note was really understood, and intended, to be for his benefit, and that Catlin. was merely • an agent,, or trustee, in the matter. He was permitted to show this, and to recover upon- proof of it, and the exceptions taken, on Catlin’s behalf, are based upon the hypothesis that the case did not admit of such proofs or holdings.

There is really but one question in the case, and that is, whether parol evidence is admissible to affix the character of a trust to a promissory note, payable to the party claimed to be a trustee. The Statute of Frauds concerning trusts has no reference to personal property, and trusts in personalty are among the most ■ordinary incidents of business. Where any person assents to act as trustee, in receiving money for the benefit of another, he becomes liable to an action for móney had and ■ received, if he fails to pay it over according to his duty. This action is peculiarly equitable in its nature, and lies whenever an express or implied trust to pay over money has been violated. The case of Beardslee v. Horton, 3 Mich. R., 560, contains a clear exposition of the doctrines applicable to such cases. It was, in our opinion, entirely open to the parties to shorrt for what purpose the note was given to Catlin, and if given for Birchard’s benefit, he had a right to compel Catlin to account for it. No further consideration was necessary to bind Catlin than the assumption of the relation of agency, or trusteeship. Having assumed to •collect the money, the duty of paying it over followed ;as an implied legal obligation.

It was claimed that, inasmuch as the written proposition made to Win. A. Howard contemplated the payment of this money to Smith and Dwight, and not to Birch•ard, no testimony coiild change the writing. By that proposition, the money' was not made payable to Catlin at all. But the question, what propositions were made, •cannot affect the case at all. The agreement actually made requires the money to be paid to Catlin. It was ■competent to show Howard’s assent to this agreement, and it was also competent to show for- what purpose the money, made payable to Catlin, was designed. The agreement was performed when Catlin was paid. His agreement, or responsibility for the management of the money, was entirely independent of Wm. F. Smith’s liability to pay it, and formed no necessary part, therefore, of the written arrangement. There was testimony bearing upon all the facts in controversy, and the Court properly submitted it to the jury, with whose conclusions we have no authority to interfere.

Upon a careful consideration of the errors alleged, we think there was no error in the proceedings, and judgment should be affirmed, with costs.

The other Justices concurred.


text:
    James W. Tillman v. Samuel A. Fuller.

      .Lease — contract for a lease —statutory provisions governing each. — Tho distinction, between a lease and a contract for a lease is recognized in Sections 3171 and 3179, Compiled Laws — a lease being governed by the former, and a contract for a lease by the latter section.

      'Contract for a lease —Statute of Frauds. — A contract for a lease is performed by tho making of tho lease ; and, therefore, a verbal contract made in April for a lease for one year from the 1st of May following, is not within tho provisions of tho Statute, of Frauds.

      /Finding of facts by the Court — evidence cannot be reviewed. — Where there is a finding of facts by the Court, and the case is brought up on exceptions by a writ of error, tho evidence can only bo oxamined so far as to seo whether 'it tends to support the finding; and the finding can he reviewed only so far as to see whether the legal conclusions are warranted by tho facts found, or what judgment was authorized.
    Therefore, where plaintiff sued on a parol agreement as a demise, and tho Judge, in his finding, neglected to expressly find that there was a demise, and did not find such facts as would warrant the conclusion as one of law; — Held, 'That the plaintiff could not recover.

      .‘Lease — declaration on. — In declaring on an agreement as a demise, there are hut two propor modes of stating it: First, by its legal effect — that plaintiff did demise, let or lease, etc.; or, second, by setting it forth in such manner as to show its legal character.
    •Where the statement of an agreement in a declaration was so made as lo ho fully satisfied by proof of a mere agreement for a lease; — Held, That tho agreement, as stated, did not constitute a sufficient consideration for a subsequent averment of actual renting and hiring, and that said averment of renting and hiring could have no effect in supporting the statement of said, agreement as a demise.

      Consideration —statement of in declaration — variance. — Where the consideration for a promise is stated in a declaration, as consisting of two parts, each of which is material and pertinent, though either one standing alone, if so alleged, would sustain the promise, proof of hut one is a variance, fatal to plaintiff’s recovery.

      Heard October 13, 1864,

      Decided January 28.
    Error to Wayne Circuit.
    The plaintiff’s declaration, besides the common money ■counts, contained the following special count:
    “ For that whereas the plaintiff, at the city of Detroit, in said county of Wayne, and on or about the first day of May, 1860, at the request of said defendant, did make .and enter into an agreement with said defendant for the .hire and renting of his, the said plaintiff’s, said dwelling house, situated on the east half of lot two, on north sido of Woodbridge street, and on the Beatibien farm, and between St. Antoine and Hastings streets, in said city of Detroit, for the period of one year from said May 1st, 1860, at and for the annual rent of three hundred and fifty dollars, payable quarterly; and said defendant, in pursuance and in consideration of said agreement so made, did actually rent and hire, from said plaintiff, said premises for the period and at the rent aforesaid, and possession thereof was duly delivered to him by said plaintiff, under said agreement, and by him held and enjoyed for the period of one year from said May 1st, 1860, by means whereof said defendant became liable to pay to said plaintiff the said, sum of three hundred and fifty dollars, in manner aforesaid, and being so liable, said defendant undertook and promised to pay said plaintiff the rent therefor, at and after the rate of three hundred and fifty dollars per annum; and in quarterly payments during said year; yet said defendant has not paid said' several sums of money aforesaid, nor has he paid any part thereof, although often, by the plaintiff, requested so to do, and especially requested at. the time and times when said quarterly payments became due as aforesaid, but has wholly refused to pay the said plaintiff' the said sum of money, and still refuses so to do, to the damage of said plaintiff.”
    The ' defendant pleaded the general issue. The case. Was tried by the Circuit Judge, without a jury, and the following is the finding:
    “ 1st. That an agreement was made some time in the-month of April, 1860, and before the twentieth day thereof, for the letting, on the part of the plaintiff, and the hiring, on the part of the defendant, for one year from May 1st, .1860, of a certain house and premises in the declaration described, at and for the annual sum or -rent of three hundred and fifty dollars, payable quarterly, and that said agreement was not in writing, but was made by parol.
    “ 2d. That, by said agreement, said defendant had a right to take possession on May 1st, 1860, and that the said premises were ready for his occupancy, on that day, and thenceforth for one year.
    “ 3d. That, in fact, the defendant never entered into possession of the premises, nor used the same.
    “ 4th. That the premises were vacant during the year, except from May 1st to July 1st, 1860, while Dow, the former tenant, continued to occupy the same, under the following circumstances, viz.: A day or two before the 1st of May, 1860, Dow asked defendant for leave to stay there a short time, and defendant replied to him, that he had no objections, but had no authority.
    “The Comt, after due consideration of the facts and law in the case, does rule and hold:
    “ 1st. That this agreement, as jnoven and found above, being by parol, and not in writing, is void by the Statute of Frauds.
    “ 2d. And the Court further holds that, under the declaration of the plaintiff, he is not entitled to recover, because the defendant never entered into possession of the premises.
    “And that the defendant is, therefore, entitled to a judgment for costs in the case.”

      J). B. Buffield and G. VI JY. Bothrop, for plaintiff:
    This agreement is not within the provisions of Chapter 104, Comp. L. Section 3177, of said chapter, expressly excepts from its operations a lease for one year; and 'in Section 3119, there is nothing which touches contracts for the leasing for the period of one year, which is this case. It only affects contracts for leasing of lands, or any interest in lands, for a period longer than one year.

    It is adjudged in Young v. Dake, 1 Seld., 465, that “ a parol agreement, to let a house for the term of one year, to commence in futuro, is good and valid in law.”
    This case overrules a former decision in Croswell v. Crane, found in 7 Barb., 192, which seems to have turned on the words, “ from the making thereof,” in the New York statute, and which are not found in ours.— See, also, Taggard v. Roosevelt, 2 E. D., Smith, 100.
    The averment, that the defendant entered into possession, was immaterial, and might, therefore, be treated as surplusage.
    It was no part of the contract alleged. The cause •of action was perfect, and perfectly described without it. It was a fact wholly impertinent, because it did not affect the contract, or the right of action. — 2 Chitty Pl., 551, and notes; 1 Saund., 203, note 1; 1 Chitty Pl., 229; Bromfield v. Jones, 4 B. & C., 380; 1 Green, Ev.

      J. P. Whiliemore, for defendant:
    1st. As upon an agreement for a lease, this action cannot be sustained.
    The plaintiff claims that the agreement proved is an agreement for a lease, or, as he calls it, a contract for a lease, to be executed on the first day of May; and he claims to recover on such an agreement.
    This cannot be, for the declaration is upon an executed lease, and not upon an agreement on the one part to execute, and on the other to take a lease. Such a declaration would require allegation of a tender of a lease on the day named, and refusal to take, and of special damage arising from the not taking.
    2d. The defendant never having possessed the prop-erty, the declaration for use and occupation is not sustained.

      a. At common law, assumpsit does not lie for rent. —Taylor’s Landl. and Ten., §635; 1 Chit. Pl., 344; but, see Hardwicke, 343. And under the Statute of George, (re-enacted in Michigan,) it only lies where the premises-are actually occupied. — Taylor's Landl. and Ten., §641 1 T. R., 735, 8 id., 327; 6 Bing. 206; 3 Taunt., 65; 2 H. Bl., 31; 5 B. & A., 584.
    &. The action should have been upon the agreement alleging performance, or. tender of performance, on the part of plaintiff, and default on the part of defendant, —1 Chit. Pl., 331-2-3.
    And the proof of performance, or notice of readiness, and offer to perform, by plaintiff, is requisite' to a recova ery. The Court only finds the fact of readiness, without notice or offer. — Parker v. Parmele, 20 J. R., 130; 11 Wend., 48; 3 Den., 363; 1 Chit. Pl., 327; 8 Taunt., 62.
   Christiancy J.:

Two errors are assigned by the plaintiff in error, (who was also plaintiff below): 1st. That the Judge erred in holding the agreement proved to be void under the Statute of Frauds; and, 2d. In holding that the plaintiff, under his declaration, could not recover, because the defendant never entered into possession.

Whether the first question properly arises in the case, depends upon the question, whether the agreement-proved constituted, of itself, a lease, or present demise, or only a contract for a lease or future letting.

By Chap. 80, Sec. 6, of the Revised Statutes of 1846, (Comp. L., §3177,) it is declared that “no estate, or interest in lands, other than leases for a term not exceeding one year, nor any trust .or power over or-concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered, or declared, unless by act or operation of law, or by a deed or conveyance in writing,” etc. By the 8th sec-., tion of the same chapter: “ Every contract for the., leasing for a longer period than one year, or for the* sale of any lands, or any interest in lands, shall be void, unless the contract, or some note or memoranda thereof, be in writing, and signed by the , party by whom the lease or sale is to be made, or by some person thereunto by him lawfully authorized by writing.” These two sections clearly adopt the well known common law distinction between a lease and a contract for a lease. If the contract constitutes a lease of itself, it can be effected only by the sixth section, above cited; if only a contract for a lease, or future letting, it will be governed by the eighth section. If a lease, then the question intended to be raised by the first assignment of error is fairly presented — whether it is void, because the term, though but for a year, yet being made to commence in future, extends beyond a year from the time of the demise ? If, however, the •agreement was but a contract for a future letting, or lease, then as a letting, or lease, by the plaintiff at the time agreed upon, would constitute a performance of the contract, and as the agreement was made in April, for a term to commence on the first day of May, in the same year, no such question can arise, nor any question under the first clause of the second section of the next ■ chapter, which requires “ every agreement to be in writing that, by its terms, is not to be performed within one year from the making thereof.”

The plaintiff’s counsel. contended, in the Court below, and insists here, that the agreement proved constituted, ■of itself, a lease, or present demise, of a term to commence in futuro, and he does not claim to recover upon any other ground. And if the agreement only amounted 'to a contract, on the part of the plaintiff, that he would thereafter let the premises, and on the part of the defendant, that he ■ would thereafter take them on the terms proposed, then, .as the defendant never went into possession, the only breach which could be assigned Would be his refusal to take and become tenant, etc,; and the present declaration is not properly framed for such a purpose. It was, therefore, incumbent on the plaintiff to prove a present demise. The general features of difference between a lease, or present demise, and a contract for a future letting, are well understood, though the line of distinction is often difficult to trace, in its application to particular cases; and there is much conflict in the authorities. The question has generally arisen, as one purely of' law, upon the construction of the language of a written instrument, the distinction being often made to turn upon very slight differences of phraseology, though it is always a question of the intention of the ■ parties. But in the present case, the agreement being merely verbal and informal, and to be gathered from conversations, and the evidence being, in some respects, conflicting, the question was one of fact ■ — -what the contract was; or, at most, one of mixed law and fact. So far as it depends upon the facts, we cannot review the evidence — the case being brought up on exception and writ of error, and not upon a case made for review upon the facts. We must take the facts to be such only as the Judge has stated them in his finding, and to which we can add no fact not found more than in the case of 'a special verdict. We can look to the testimony only so far as to see its tendency, and whether there was evidence, tending to support the finding; and we can review the finding only so far as to see whether his legal conclusions are warranted by the facts found, or what judgment was warranted by such facts. We have not the aid usually afforded upon the question of construction, by the very language in which the agreement was expressed. The Judge has not stated it in his finding, which would, probably, have been impracticable; and if he had stated the whole conversation between the parties, the intent of the parties, which constitutes the contract, would, probably, be but a mere question of fact, or an inference of fact, to be drawn from such conversation. But, at all events, to warrant us in pronouncing the agreement an actual demise, the Judge should either have expressly found it to bo a lease or demise, or that such was the intention of the parties, or should have stated such facts as would lead to such a conclusion, as one of law. If he has only found such an agreement, or such facts, as leave the question open, whether it was a lease or a mere agreement for a future letting, then, as the burden of proof was upon the plaintiff we are not authorized to pronounce it a lease, and the plaintiff must fail. Now, it seems to me the Judge has purposely and" carefully avoided finding the agreement to be a lease, or present demise. His finding of the contract is in these words: “ That an agreement was made some time in the month of April, 1860, and before the twentieth day thereof, for the letting, on the part of the plaintiff, and the hiring, on the part of the defendant, for one year, from May 1st, 1860, of a certain house and premises, in the declaration described, at and for the annual sum of three hundred and fifty dollars, j>ayable quarterly; and that said agreement was not in writing,- but was made by parol.” Now, this statement would be equally true, and the language quite as appropriate, if the agreement intended to be found was only an agreement for a future letting, and not a present demise.

Pías the Judge stated any other fact, from which Avé‘ are authorized to .find a present demise ? The only other statement in the finding, Avhich can be claimed to haAre any bearing upon the point, is the subsequent statement, “ that, by said agreement, said defendant had a right to take possession on May 1st, 1860, and that said premises wei;e ready for his occupancy on that day, and thenceforth for a year.” Now, so far as this statement relates to the right of entry, it is, in form at least, but a statement of a legal conclu-: sion; and no facts are given as the foundation for such a conclusion, excejrt the contract previously stated, and' •the further fact that the premises were ready for his occupancy. But whether this be stated as a fact, or a conclusion of law, the right of entry, and the fact that the premises were ready for defendant’s occupancy, are quite as consistent with a mere contract for a future letting, as with an actual demise. In fact, the right of entry is so general an' incident of a contract for a lease, that it is sometimes stated generally, without qualification, that such agreement will operate as a license to enter upon the premises agreed to be demised. — Taylor's Landlord and Tenant, Sea. 37.

It further appears from the finding that, in fact, the defendant never entered into possession of the premises, nor used the same.

While, therefore, we think the Judge, by not properly distinguishing ‘ between a lease and an agreement for a lease, under the statute, erred in holding the agreement void because not in writing, it was not an error which operated to the prejudice of the plaintiff, as no judgment in his favor was authorized by the facts found. This disposes of the case; but it may not be improper to intimate an opinion upon the question raised by the second assignment of error, which, wo arc inclined to think, must lead to the same result. The declaration is peculiar. It does not, we think, fairly allege a demise, or present letting, by the plaintiff, as claimed by his counsel. If the agreement was relied upon as a demise, there were but two proper modes of stating it: 1st. By its legal effect — that the plaintiff did demise, let, or lease, etc.; or,. 2d. By setting forth the agreement in such manner, as to show to the Court that such was its legal effect. But the statement of the plaintiff’s agreement is such, that it would be fully* satisfied by proof of a mere agreement for a lease. This -is the whole consideration stated for the defendant’s actual renting and hiring, as the declaration immediately proceeds to state that “ the defendant, in pursuance, and in consideration of, the agreement, did actually rent and hire, of the said plaintiff1, the said premises, for the period and at the rent aforesaid.” This actual renting* and hiring is not supported by the consideration stated, unless the agreement be so stated as to constitute a present demise. Yet it is this alleged renting and hiring by the .defendant, which furnishes the only inference that the agreement on the. part of the plaintiff was intended to be stated as a demise; but to give this any effect in supporting the statement of the agreement as a demise, would be arguing in a circle. The declaration, after tlie words last quoted, proceeds: “ And possession thereof was duly delivered to him by the said plaintiff, and by him held and enjoyed,” etc., “by means whereof the said defendant became liable to pay to said plaintiff the said sum of, etc., in manner aforesaid; and being so liable, the said defendant undertook and promised,” etc.

Now, as no actual tenancy — no relation of landlord and tenant — is created by. an actual demise, without entry, we think, by any fair construction, we must infer from this declaration, that the plaintiff did not intend to found his claims merely upon the agreement stated, whatever that agreement was; but in part, at least, upon delivery of possession, or the tenancy. No direct promise to pay is stated, except that which follows the statement of the tenancy, as in a declaration for use and occuj)ation, and that promise is stated as being, in part at least, in consideration of the liability growing-out of the delivery of possession — in other words, out of the tenancy; and though the usual words, “in consideration thereof,” are omitted, the whole context, shows the effect was intended to be the same as if they had been inserted. This, therefore, as stated, is a part of the consideration alleged for the promise; and it is not •a part which is idle, frivolous, Or of no value, and which can, therefore, be rejected as surplusage.

Admitting, therefore, that a present demise is suffi•ciently alleged, this is still a case where the consideration is stated as consisting of two parts, each of which is material and pertinent, and but one of which, has been proved; and though one of these considerations alone, had it been so alleged, would have been sufficient to sustain the promise, still it is a fatal variance, as it is not the consideration alleged. — See 1 Chitty’s Pl., 327-328. The Judge was, therefore, correct in holding that the plaintiff could not recover under this declaration, because the defendant never went into possession.

The judgment of the Circuit Court must, ■ therefore, be affirmed, with costs.

Martin Ch. J. concurred.

'Campbell J.:

I think the declaration in this cause sets forth unequivocally an executed contract to lease, under which-possession is alleged; and that the liability to pay rent is dependent, under the allegations, upon the completed lease and possession, which are not proved. The finding, I think, is of an executory contract only, and the breach of such a contract is failure to accept possession, ■and not failure to pay rent, in 'the absence of an independent promise or covenant. I concur in the general 'views of my brother Christiancy, and in the result at •¡which he has arrived.


author: Cooley J.: Martin Ch. J.,

text:
    Peter Laing v. Robert G. McKee.

      Fraud in obtaining tax deed —owner of land seeks relief — conveyance decreed. —Defendant having purchased complainant’s land at a tax salo, tho latter, shortly before timo for redemption expired, offered to pay him the amount of his bid, with twenty-five per cent, intorest thereon, for assignment of the certificate of said sale, and defendant promised that ho would send complainant an assignment of said certificate, and acoept the amount of said hid and intorest, within two or three days. Complainant, relying upon the defendant’s promise, permitted the time for redemption to expire, after which defendant obtained a deed from the Auditor General, and upon a tender subsequently made to him, of the amount of his bid, with interest and charges, refused to accept the same, or to execute a deed, of said land to complainant;— Held, That defendant’s conduct, under the circumstances, was a fraud-upon complainant, and that tho latter was entitled to a decree against him for conveyance of said property.

      Submitted January 4.

      Decided January 28.
    Appeal in Chancery from Clinton Circuit.
    The case is fully stated in the opinion of the Court..

      8. X. KiTbourne, for complainant.

      J. XT. McKee and Hanchett <& Xyon, for defendant.
   Cooley J.:

The bill of "complaint in this- case sets forth that complainant is the owner of a forty acre lot in Clinton county, which, at the annual tax sales, made in October, 1858, was sold to defendant for taxes delinquent for the-year IBS?, amounting to one dollar, forty-one cents; that complainant haying a right to redeem from this sale sent the money for that purpose by one Treat to the office of the Auditor General, but tliat Treat, ascertaining that tho sale was made to defendant, who was a neighbor of complainant, returned tlie money without redeeming, saying that he thought complainant could procure an assignment of the certificate of sale from defendant ; that complainant called upon defendant for that purpose, who told Mm the certificate "was then at Lansing, but he might send for and obtain it, and defendant would then assign it; that complainant sent and obtained it accordingly, and gave it to one Alváli C. Laing, with a sum of money sufficient to pay defendant the amount of his bid, together with twenty-five per cent, interest thereon, and that said Alvah, in the latter part of September, 1859, took the same .to defendant with a request that he should assign the certificate; that defendant said lie would do so, but could not do it then, owing to the absence of an officer to take the acknowledgment, but he would' make and acknowledge the assignment, and in two or three days take it to complainant, and would then receive the money for the' same, together with the expenses of the acknowledgment.

The bill further states that complainant believed and relied upon this assurance, and consequently allowed the time for redemption to expire without redeeming; hut defendant, after the time to redeem had expired, surrendered his certificate and obtained from the Auditor General a deed, and that he now refuses on demand to receive the amount of the bid, with twenty-five per cent, interest and his costs and expenses in the premises, and convey to complainant: And the bill prays that he. may be compelled to convey accordingly.

The case was heard on pleadings and proofs, and we think the evidence taken fully substantiates the material charges made by the complainant’s bill. He is, therefore, entitled to the relief prayed unless the bill itself fails to make a sufficient case.

It is objected on the part of defendant that the agreement on his part was a parol contract in relation to lands, and therefore void under the Statute of Frauds, and that there has been no such part performance of it as will entitle complainant to have it specifically performed.

We do not think this case is to be put ■ on the ground of specific performance solely. The facts charged and established show that complainant, relying upon the promise of defendant to assign, neglected to exercise his legal right to redeem, and defendant was thereby 'enabled to obtain a deed of the lands. It sufficiently appears that complainant would have made the redemption but for the assurances thus made to him, and a fraud has thus been perpetrated upon him, against which he is entitled to relief. It is a matter of no moment whether the fraud was perpetrated by means of a promise upon which he relied, and which the defendant did not intend to keep, or by untrue statements as to existing facts. And it is not necessary for us to decide, in this view of the case, whether the agreement to assign the certificate was or was not void under the Statute of Frauds.

It is also objected that the terms of the understanding between the parties were indefinite, inasmuch as the rate of interest to be paid by complainant was not fixed. We think the evidence establishes the fact that Alvah C. Laing handed to defendant the amount of the bid with twenty-five per cent, interest thereon, and that defendant returned the same with the excuse before mentioned, at the same time promising to bring up an assignment and take the money, together with the expense of acknowledgment, in three or four days. Without going back of this interview, there is sufficient to establish with precision the terms upon which the transfer-was to be made, and we shall not, therefore, consider what might have been the effect upon this case of any ambiguity in these terms.

The decree of the Court below must be reversed, and a decree entered in this Court granting to complainant the relief prayed, with costs of both Courts.

Campbell and Christiancy JJ., concurred.

Martin Ch. J.,

dissenting:

I cannot concur in this opinion, as I can find from the testimony no evidence of a contract which the law should or will enforce, and of course no 'breach of performance. Neither do I discover any fraud in the conduct of McKee respecting- the subject of controversy.