Morrison v. Berry , 42 Mich. 389 ( 1880 )

Campbell, J.

This was an action of trover, brought against defendants below, who are plaintiffs in error, for the conversion of a gas machine and various auxiliary articles contained on a lot and in a house owned and occupied by defendant Parmelia Morrison, wife of defendant Bobert H. Morrison. The alleged conversion consisted in a refusal to deliver back to the plaintiffs below those articles which had been furnished by them to Bobert H. Morrison under a sale, which they claimed to have rescinded for fraud. The facts on which recovery was allowed below were substantially these:

In the spring of 1877 Bobert H. Morrison was building five dwellings in the village of Sturgis, one of them being on property belonging to his wife, and the rest on property the precise ownership of which does not appear, but which does not seem to have been in him. An agent of Berry Brothers, who were interested in putting up machines for making gas, hearing from a third person that Morrison was building these houses, and without making any search or inquiry into the condition of the title, or whether it was good or clear, sought to induce Morrison to put in one of the. machines in his residence, or two machines, one for four houses and the other for one house, and made him a written offer on such basis. In case the larger proposition was accepted, they agreed to do the excavating and filling and furnish all the work necessary to complete the job.

In October a somewhat different contract was entered into in writing, for a single machine, at a different price, and Morrison was to be at the expense of excavating and filling and wood and mason work, which, however, was all to be done under the supervision of the gas-fitter. Payments were to be made in notes at four, five, six and eight months from November 1, 1877. The work was delayed by Berry Brothers, and not put in until January, 1878, and when completed, notes were given and received running from February 1, 1878. A small amount of money was also received.

On the 12th of March, 1878, the manager of Berry Brothers, who had gone to Sturgis to look after this claim, and who when there ascertained about the title, saw Mrs. Morrison (Mr. Morrison being absent), and offered to take back the property and cancel the indebtedness on the ground, as represented to her, that she would not be able to pay for it as things then stood, and made a demand to' have it turned over to him. At a subsequent time, on the 29th of April, 1878, a demand was made of both the Morrisons, with a tender back of the notes and $25 cash which had been received. There is no evidence that Mrs. Morrison knew anything ' about the terms of the contract or of its existence, or that she did any act whatever out of which any ground of action or complaint could arise, except in not complying with this demand.

The court instructed the jury that if Morrison represented that the houses were his when they were not, and if Berry Brothers relied on that representation, they could rescind the contract of sale, and hold both parties liable in trover for the refusal to deliver the property back.

Upon an examination of this case it is very far from being clear that there was evidence of fraud to avoid the contract, and if the case were to turn upon that question alone, it would be at least worthy of serious consideration. No questions seem to have been asked concerning the title, and Morrison’s attention does not appear to have been called to the subject. If the ownership of the premises had any important bearing on the conduct of the parties, it was certainly as important to know whether they were encumbered, as in whom the title stood, and inasmuch as the application was made to Morrison and did not come from him, and no inquiry was made of him, and inasmuch as he was in fact building the houses, it is not easy to see why he should necessarily assume or suppose that anything was looked to beyond his general credit. It seems quite apparent that the desire of Berry Brothers to protect themselves did not arise at all out of any supposition that they had been defrauded by misrepresentations concerning the title to the property. Their manager went out to Sturgis for that purpose' before he knew anything about the title, and did not, after discovering how it stood, make any complaint to Mrs. 'Morrison that there was any deceit in the matter, and made no demand on that basis. It was evidently the fact that Morrison had been otherwise involved that led to this application to Mrs. Morrison, which was based, not on fraud but on her inability to pay. And when the steps were taken to rescind the contract, no reference whatever was made to the condition of the title, or to any fraud in that regard, as the reason for rescinding. It was not until two months or thereabouts after this second demand that the agent who had conducted the business when the contract was made, was informed by Mr. Mason, the manager, who made the first demand, that the title was not in Morrison. He does not testify, and no one testifies that the contract was actually rescinded on that ground.

But however this may be, and assuming the contract was lawfully capable of rescission, so far as Morrison is concerned, it seems to me very clear that no right of action exists against Mrs. Morrison. It has been decided on several occasions by this court that a married-woman is not responsible in person, and that her land is not bound, for improvements and expenditures made on it by her husband, where no credit has been given to her, and where he has contracted on her behalf. Newcomb v. Andrews, 41 Mich., 518; Emery v. Lord, 26 Mich., 431; Willard v. Magoon, 30 Mich., 273.

It is also elementary doctrine that a person who makes improvements on the land of another, where the landowner has not been in fault about it, does so at the risk of losing both his property and his labor.

In the present case the annexation of the articles in question to the freehold was not a «wrongful annexation of the property of the Berry Brothers, done without their authority. The contract made by them with Morrison not only contemplated the permanent annexation to the freehold of this property, but that it should be made under the direction and supervision of their own agent. It is not a question here whether articles of ambiguous character, not intended for permanent annexation, have become a part of the freehold. Here the intention was explicit and not open to any controversy. The case in no way differs from a contract to build a house on the lot, or to make repairs on it. The equities would be as strong in the one case as in the other, and the law is certainly identical in both cases. The amount of injury to the freehold which would be caused by the removal is not the question. If it is a part of the freehold, it cannot be taken away. The removal of locks from doors, or doors from their hinges, or windows from their frames, or fences and gates from the ground, may generally be made-without doing any serious harm to the rest of the building beyond the inconvenience of doing without them, but no one has ever supposed they could be so removed without taking away what is a part of the freehold. See further Fryatt v. The Sullivan Co., 5 Hill, 116: affirmed, 7 Hill, 529.

A refusal to allow the removal of what has become, by the act and intervention of the demandant, a part of the freehold, cannot, in my opinion, be treated as a conversion of personal property.

"I think the judgment should be reversed with costs, and a new trial granted.

Marston, C. J., and Graves, J., concurred.