Birznieks v. Cooper

• Decision Date: 05 February 1979
• Docket Number: Docket No. 58849,No. 11,11
• Citation: 405 Mich. 319,275 N.W.2d 221
• Parties: Peter and Ella BIRZNIEKS, Plaintiffs-Appellees, v. Thomas L. COOPER, Defendant-Appellant. Calendar
• Court: Michigan Supreme Court

Page 221

275 N.W.2d 221

405 Mich. 319

Peter and Ella BIRZNIEKS, Plaintiffs-Appellees, v. Thomas L. COOPER, Defendant-Appellant.

Docket No. 58849.

Calendar No. 11.

Supreme Court of Michigan.

Submitted Nov. 2, 1977.

Decided Feb. 5, 1979.

Wickett, Erickson, Bartl & Haslett, P. C. by Karl G. Erickson, Kalamazoo, for plaintiffs-appellees.

Cholette, Perkins & Buchanan by Kenneth L. Block, Grand Rapids, for defendant-appellant.

LEVIN, Justice.

In summary proceedings to recover real property, a writ of restitution may not issue pursuant to a judgment for possession because of nonpayment of money by a tenant or land contract vendee if, "within the time" prescribed by the statute, the amount of the judgment is "paid" to the plaintiff. ¹

The issue is whether Thomas L. Cooper "paid" Peter and Ella Birznieks the amounts stated in judgments for possession when he mailed personal checks for those amounts to the Birznieks' lawyer on the last day of the time prescribed.

The district court held that the amounts so stated had not been duly paid. The circuit court and Court of Appeals affirmed. We reverse.

I

Cooper purchased two parcels of property under separate land contracts from the Birznieks. These summary proceedings to recover possession were commenced because of delinquency in payments. Judgments in favor of the Birznieks entered November 1, 1973 following a hearing, stating that Cooper had until January 30, 1974 to vacate the property, and that the Birznieks had the right to evict him on January 31, 1974 unless the "amount owed," stated in the judgments, was "paid within 90 days, or appealed from within ten (10) days." ²

On January 30, 1974, the last day the amounts stated could be paid, Cooper mailed personal checks in the requisite amounts, drawn on an out-of-state bank, to the Birznieks' lawyer. The envelope was postmarked January 30, 1974.

The lawyer wrote Cooper on February 1st that writs of restitution were issued by the court on that day. "The period of redemption expired January 30, 1974, and your payment was not made during the period of redemption. I am returning with this letter an envelope which we received February 1, 1974. I have not opened this letter and do not know what the contents are."

Cooper's motion to quash the writs of restitution was denied after a hearing during which the envelope was opened disclosing the two checks. Cooper testified that after the November 1st hearing the Birznieks' lawyer "gave me his card and said for me to mail the payments to his office." Peter Birznieks testified that because of problems with Cooper's checks he had refused to accept payment by personal check. ³

The district judge held that personal checks were not proper tender and that mailing on the last day was not timely. She found that some of Cooper's checks for land contract installments had not been honored on presentation, and noted that he did not deny Birznieks' claim that he had been instructed to pay such installments in cash or by money order and that there was no testimony that the two checks would have been honored if presented. She concluded that Cooper had no rational basis to believe that personal checks on an out-of-state bank would be accepted. Although, as she also noted, it was not disputed that the Birznieks' lawyer had instructed him "to mail his redemption payment to him," placing personal checks in the mail on the last day was not, in light of the past dealings of the parties, timely payment. ⁴

II

The judge thus appears to have credited Cooper's statement that the Birznieks' lawyer had instructed him to mail the amounts required to avoid forfeiture stated in the judgments to the lawyer. Cooper could reasonably have understood such a statement to mean that he had until the last day to mail the amounts owing.

In Bilandzija v. Shilts, 334 Mich. 421, 425, 54 N.W.2d 705, 707 (1952), this Court declared that where a land contract vendor refused a check "on the sole ground that it was too late" there was no "need for making a more formal and legal tender of cash." The concept so stated that when the creditor assigns one reason for refusing tender he may not thereafter rely on another is well supported in the Michigan cases. ⁵

This case could therefore be decided on the basis that since i) Cooper could reasonably have understood the Birznieks' lawyer's statement to mean that mailing on the last day was sufficient, ii) checks for the amounts owing were so mailed, and iii) were refused on the insufficient ground that the mailing was not timely and without regard to the form of the tender (personal checks), the Birznieks cannot rely on the alternative ground that personal checks were sent.

Leave to appeal was not, however, granted to review the facts of this case; it was granted, rather, to consider the broader question of whether mailing a personal check on the last day of the time provided is timely payment under this statute.

III

The statute provides:

"When the judgment for possession is for nonpayment of money due under a tenancy or for nonpayment of moneys required to be paid under or any other material breach of an executory contract for purchase of the premises, the writ of restitution shall not issue if, within the time provided, the amount as stated in the judgment, together with the taxed costs, is paid to the plaintiff and other material breaches of an executory contract for purchase of the premises are cured." M.C.L. § 600.5744(6); M.S.A. § 27A.5744(6).

The Court of Appeals declared that the tender must occur within the time provided, and that mailing on the last day was not timely. Regarding the form of tender, it declared that Cooper could not, in light of the Birznieks' previous refusal of personal checks, reasonably have expected that such checks would be accepted. The Court thus laid down a flat rule that the amount owing must be actually received within the time provided, ⁶ but left open the question whether a form of tender other than cash would satisfy the statute. It indicated that resolution of that question might turn on whether the vendee or tenant had reason to expect, as a result of a course of dealing, that some form of tender other than cash would be acceptable to the vendor or landlord. ⁷

The law of tender is replete with cases which depart from the generalization that tender is the payment in hand of legal currency to explore the fact-laden paths of the litigants' course of dealing. It is well established in contractual relationships that actual delivery of legal tender is not required where there is a course of dealing which justifies the debtor in believing that some other means (E. g., mailing) ⁸ and form of tender (E. g., personal check) ⁹ will suffice.

This excursion into the course of dealing, while justified in contract cases where it is sought to determine reasonable expectations, is not appropriate where rights are fixed by statute without regard to the expectations of the parties. Although vendor-vendee and landlord-tenant relationships are grounded in contract, a fixed meaning must, we agree with the Court of Appeals, be given the statutory term "within the time provided." A fixed meaning must also be given "paid" as used in this statute; therefore, whether personal checks were acceptable does not depend on whether Cooper could, as a result of a course of dealing, reasonably expect that they would be accepted.

A judgment for possession is, under the statute, subject to the redemption rights of the vendee or tenant. No agreement between the parties can deprive a vendee or tenant of his right to cure the default. The parties are beyond the contract. The vendee or tenant now exercises a statutory right, a right which can be diminished neither by the express nor the implied terms of the contract.

It would be anomalous if a vendee's or tenant's right to pay by personal check or to send it by mail on the last day for payment were dependent on the idiosyncrasies of a particular vendor-vendee or landlord-tenant relationship.

The sufficiency of tender under a statutory redemption provision should not depend on a lawyer's ability to amass evidence of a course of dealing. The statute gives the tenant and vendee a last chance to avoid forfeiture. ¹⁰ The outcome should not depend upon the presence or absence of a written record or of witnesses to the vendor's or landlord's instructions or objections during the course of the contract. Otherwise, one man's check mailed on the last day might reinstate his equity because his vendor or landlord is unable to prove a previous objection, while at the same time his neighbor's tender might be inadequate because his vendor or landlord can show routine objection to even the most minor deviation from contract terms. Principle, not providence, should be the governing factor.

While the construction of these statutory terms is not circumscribed by the course of the parties' dealing, it does not follow that the words should be given an entirely formalistic meaning or that the customary manner of dealing should not be reflected in the construction.

"Paid" may have a clear and plain meaning ¹¹ to lawyers who understand that nothing other than actual delivery to the creditor of coin of the realm is legal tender. Land contract vendees and tenants, however, often are not represented by counsel; Cooper was not represented at the November 1st hearing.

The court rule provides that a judgment for possession shall "include a statement as to the date when a writ of restitution may issue unless he pays the amount due and costs." The apparent purpose is to inform the vendee or tenant of the amount required and the time within which to pay to avoid loss of possession and forfeiture.

If the remedial purpose of the statute and the informational purpose of the court rule are to be fully implemented, the words "within the time provided" and "paid" should be given a construction consonant with what vendees and tenants...