DocketNumber: Docket No. 182
Citation Numbers: 144 Mich. 195
Judges: Blair, Grant, Hooker, McAlvay, Moore
Filed Date: 5/24/1906
Status: Precedential
Modified Date: 9/8/2022
Sophia Draggo made a lease of a parcel ■of land (25 acres) to one Sovereign, for one year, agreeing to plow, harrow, pulverize, float, and roll, and drill beet seed in. She was to be paid therefor the sum of $8 per acre, one-half of said sum on or before November 20th, and the other half on or before December 20th, of the same year. Previous to the making of the lease, Sovereign had negotiated with the defendant regarding a contract for raising beets, and was promised such a contract by defendant, provided-he should obtain 100
Counsel for the plaintiff claim: (1) That there was a new and original promise based upon a forbearance to sue; (2) that the proof shows a novation. The claim that there was a novation is set at rest by the following testimony of the plaintiff herself:
“ Q. You never had any settlement with Mr. Sovereign ?
“A. No.
“ Q. You testified in justice’s court that you never had liad a settlement and you had not released Mr. Sovereign under the lease that he made with you ?
‘ ‘ A. No, sir; he wasn’t released only for that piece of potatoes.
“ Q. Only for the piece of potatoes ?”
Her husband also testified:
“ Q. You never released Sovereign from his lease, have -you ?
“A. Yes, Mr. Sovereign told me he had thrown it up, and he told me to go 'to Mr. Bialy.
“ Q. You say Sovereign told you he had thrown it up ?
“ A. Yes, sir.
A “ Q. Didn’t you testify in justice’s court that you never had released Sovereign ?
“A. I never released him.
‘ ‘ Q. Did you never release him ?
“ A. I never understood it that way.
“ Q. That you never had any settlement with him ?
‘ ‘A. I never had any settlement with him myself, certainly; but he told meto go to the West Bay City Sugar Company, and they would take the beets off my hands for the rent of my land.
“ Q. Didn’t you testify in justice’s court that Sovereign told you that the sugar company would not advance him any more money, and that the sugar company was going to take charge of the beets, and that you would have to look to them for your pay ?
“A. Yes, sir.
“A. Yes, sir.
“ Q. So that you knew at that time, before you saw Bialy at all, that they were going to take charge of the beets ?
“A. No, sir; I couldn’t say as I knew it. Mr. Sovereign told me to go to the West Bay’ City Sugar Company.
“ Q. Sovereign told you that they were going to take charge of the beets ?
‘ ‘A. He told me to go there, that they would take charge of the beets.
“ Q. Didn’t Sovereign tell you that they would not advance him any more money, that they were going to take charge of the beets, and that you would have to look to them for your money ?
“A.. Something in that way; yes, sir.
“ Q. That was before you saw Bialy at all ?
“A. Yes, that was the last conversation I had regarding the land with Mr. Sovereign.”
The only other testimony which appears to have any significance upon this subject is that of Sovereign, who was called by defendant. He testified:
“ Q. Did you tell Mr. Draggo that you were going to throw up this contract ?
“A. I told him that the company would advance me no more money, that they were going to send a man up there to take charge, that I was going to quit, and he must look to them for his money. He said he would. He said he would hold his beets until he got it.”
This is not inconsistent with the testimony of plaintiff and her husband that it was not their intention to. release him, though they would try to get the rent from the defendant, and to that end would hold the beets.
In the other quóstion there was a disputed question of fact, viz., whether defendant promised to pay the rent due from Sovereign, and for which it was not liable up to that time. This was a question for the jury, whose finding would necessarily be conclusive. This was, however, if made, a promise to pay the debt of another, and void un
A verdict should have deen directed for the defendant. The judgment is reversed, and a new trial ordered.