Post v. Voorhees , 118 Mich. 366 ( 1898 )

Grant, C. J.

{after stating the facts). 1. In one portion of his charge the learned circuit judge instructed the jury that, if they should find the arrangement to be that defendant was to take the property, and dispose of it, or keep it, and account to plaintiff for the balance after paying what was due defendant, and the value of the property was not agreed upon, the jury might fix the value, deduct the amount due from plaintiff, and render judgment for the balance. Evidently the jury adopted this theory, for, if they found the contract as stated by the plaintiff, he was entitled to recover over $1,500. There was only one theory upon which the plaintiff could recover under his pleadings and proof, and that was a sale at the agreed price of $4,000. The above instruction was therefore erroneous.

2. Plaintiff was permitted on his case in chief to state the value of the land and of the items of personal property sold. This was not competent. If the defendant had introduced evidence tending to show that the value of the property was very much less than the price plaintiff claimed was agreed upon, for the purpose of showing the improbability of the contract, plaintiff would, of course, have been entitled to rebut it. But a plaintiff cannot support his contract by evidence of its reasonableness until the defendant has attacked it as unreasonable.

3. Plaintiff was permitted to testify to his purchase of this 80 acres, the amount of money he then had, and certain dealings between him and the defendant. These things had no bearing upon the question whether or not the contract plaintiff relied upon was made, and should have been excluded. Some of them might very naturally tend to prejudice the jury against the defendant.

4. It is claimed by the defendant that the deeds - and a hill of sale executed by plaintiff to defendant were in fact mortgages, and that plaintiff’s only remedy was in a court of equity to foreclose them. This claim is inconsistent with the defendant’s plea and notice. Both parties, by their pleadings, admitted a sale of the real and personal property, and defendant introduced a written release of all interest in the land, executed by plaintiff. The case was properly left to the jury upon this point.

Judgment reversed, and new trial ordered.

The other Justices concurred.