McCall v. Cowhey ( 1920 )

Bird, J.

Plaintiff secured from defendant, on March 23, 1917, a written lease of residence property known as 481 East Jefferson avenue, in the city of Detroit, for a period of three years from and after the first day of May, 1917, and made an advance payment on the rent of $705. The lease provided that defendant should put the premises in good order. Certain interior repairs were under way at the date of leasing. The repairs were unfinished on May 1st and defendant was unable to deliver possession to plaintiff. By reason of this plaintiff cancelled the lease and demanded a return of the advance payment. The demand was refused by defendant. His refusal was based upon the claim that plaintiff had consented to ■an extension of the date for possession to May 15th in consideration of his agreeing to make additional repairs and changes. Plaintiff denied that he agreed to an extension and denied that any repairs were made save those contemplated and under way when he leased it. In the suit brought' by plaintiff to recover the payment the issue was whether plaintiff had agreed to an extension of time for possession to May 15th. Upon this issue the jury found with the plaintiff and rendered a verdict in his behalf for the payment and interest.

The errors which defendant assigns relate wholly to the admission and rejection of testimony.

It appears from the testimony that defendant had .purchased the premises on contract from one Clark. In April following the leasing defendant wrote Clark that “he was sick of the whole mess,” and would be glad to arrange a settlement and turn the property back and forget the matter. This led to negotiations which resulted, on May 2d, in a written agreement by which Clark agreed to take a reconveyance of the property and return to defendant the amount paid on the contract plus what he had contracted to pay for the repairs. The letter and agreement were offered in evidence by plaintiff on the theory that they had some bearing on the issue as to whether plaintiff agreed to an extension of time for possession. Their admission over.defendant’s objection is made the basis for an assignment of error.

The materiality of the contract and letter is not very apparent. Their admission is defended by plaintiff on the ground that it supported his theory that defendant had become dissatisfied with his purchase of the premises before May 1st, and that he purposely permitted the work of repairing to drag so that the premises would not be ready for occupancy on May 1st, hoping that for this reason plaintiff would cancel the lease and thereby enable him to turn the property back to Clark without incumbrance. The contract and letter may have been admissible on this theory. They were at least close enough to the line to come within the class of testimony which the trial court. might either admit or reject without committing reversible error. The trial court guarded the use which should be made of the exhibits by cautioning the jury not to use the contract and letter for any purpose save upon the issue as to whether plaintiff had agreed to an extension of time. Even if it could be said that the trial court was in error in admitting the exhibits, it was not such error as would justify us in reversing the case. And we think the same can be said of the refusal of the court to admit evidence of the negotiations between defendant and Clark. While it is difficult to discover the bearing of this testimony on the material issue of the ease, we are unable to see how the rulings were prejudicial to defendant. In view of this the judgment must be affirmed.

Moore, C. J., and Steere, Brooke, Fellows, Stone, Clark, and Sharpe, JJ., concurred.