James v. Schroeder

Campbell, C. J.

Defendants were sued on a bond, dated June 1, 1883, whereby they bound themselves to pay, within ninety days after referees reporting, as follows:

“Whereas, the said Emilie Sehroeder and the said Hiram W. James have been engaged in litigation in regard to a certain pier built by said James upon the land claimed by said Sehroeder; and whereas, the said parties have agreed to leave the value of said pier out to Otto Bauman, sheriff of Manistee county, and two other persons to be selected by him, which sum so found, as to the value of said pier, the said Emilie Sehroeder has agreed to pay in ninety days from the date when said referees shall make their report,” — then if she should so pay, the condition should be void.

The referees reported June 25, 1883. This action is defended on the grounds that the award was for various causes invalid, the chief one being delay.

Evidence was given of an undated agreement, in a suit between Emilie Sehroeder and Hiram W. James and David James, containing twelve separate divisions, which were in substance as follows: One article fixed a dividing line between Emilie Sehroeder and Hiram James, leaving a certain pier on her land. The parties were to execute deeds of release of the various parcels to each other, according to this division, and were to occupy each one-half of the pier during the season of 18S3. A certain mortgage was also to be released. They agreed to leave to Otto Bauman and two other men whom he should select “ the valuation of said pier, and the sum so found as the value of said pier shall be paid by the said Sehroeder to the said James within ninety days after the *32 report of tlie referees shall be ready for the parties hereto, which shall be within thirty days from the date hereof. Said report shall be in writing, signed by at least two of said referees, and shall be furnished on request to either party requesting the same. Said referees may determine the value of said pier from their own examination.” Provision was also made for giving a bond within ten days to pay the appraised value.

This so-called reference was nothing more nor less than an appraisal by appraisers on their own inspection, and, in our opinion, there was no occasion for the presence of any one else. It must be conclusively presumed that their judgment, if honest, was correct, and that it was honest if not shown to be otherwise. This record shows nothing having a legal tendency to impeach it.

The only question which seems to us legitimately open on this writ of error is whether the appraisal made June 25,1883, was lawfully made so as to hold defendants on their bond. We find nothing to change that date but a subsequent date set up, which the jury have discarded. It is claimed that the bond is confined to the period fixed by the written agreement, and that the appraisal was not made within thirty days from its execution. The testimony of John C. Schroeder, which is contradicted by all the witnesses knowing the facts, has a tendency to show .that it was made thirty-one days after the agreement was signed by Mrs. Schroeder. The court held that the bond was not limited by the precise terms of the written agreement, and that if the appraisal was made by consent on June 25th it was sufficient.

The bond and reference were not papers executed simultaneously, and are not, therefore, within the rule that such papers must be construed together. The bond is not given to secure the performance of all of the conditions of the agreement, but only to pay the valuation, which was a separate item from the rest. It contains nothing on its face, to show that it referred to any such document, and there was no testimony introduced to show that Zozel knew there was *33 any such paper, or supposed he was stipulating in reference to it.

Under these circumstances we do not think that any such limitation could be imported into the bond which should confine the obligation within the limits proposed. If the agreement had been dated, and had been shown to Zozel, he could no doubt have been entitled to rely upon it. But even if he had seen the undated agreement, and learned nothing further, he could not have presumed that it related back for any particular time earlier than his bond, and could have had no reason for requiring performance on any other basis. The appraisal as made was strictly within the terms of the bond, and he was in no way misled.

If this is so, all the other questions are unimportant.

The judgment must be affirmed, with costs, except as to the sum of $6.13, which plaintiff remits. As the award was for a fixed sum, and interestis purely a matter of calculation, the error in computation may be corrected from the record itself, and is therefore no ground for reversal, under the statute of amendments.

The other Justices concurred.