Daul v. Dewey, Docket No. 10888

• Citation: 37 Mich.App. 708,195 N.W.2d 309
• Decision Date: 20 January 1972
• Docket Number: Docket No. 10888,No. 3,3
• Parties: Lloyd DAUL and Jo Ann Daul and George D. Stribley, Plaintiffs-Appellants, v. Harold A. DEWEY et al., Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 309

195 N.W.2d 309

37 Mich.App. 708

Lloyd DAUL and Jo Ann Daul and George D. Stribley, Plaintiffs-Appellants, v. Harold A. DEWEY et al., Defendants-Appellees.

Docket No. 10888.

Court of Appeals of Michigan, Division No. 3.

Jan. 20, 1972.

Released for Publication March 17, 1972.

George D. Stribley, Muskegon, for plaintiffs-appellants.

John B. Olsen, Muskegon, for Dewey.

Robert N. Hammond, Grand Rapids, for Farm Bureau.

G. Anthony Edens, Grand Rapids, for Pioneer Mut.

John C. Buchanan, Grand Rapids, for Sill Mtg. Inc.

Before R. B. BURNS, P.J., and FITZGERALD and V. J. BRENNAN, JJ.

R. B. BURNS, Presiding Judge.

Defendant, Still Mortgages, Inc., assigned a mortgage to defendant, Farm Bureau Life Insurance Company, which had been taken on plaintiffs' home. Sometime thereafter, plaintiffs' home was extensively damaged by fire. Upon discovering that fire insurance had never been issued for their home, plaintiffs instituted suit against the defendants. The suit was settled by stipulation which reads, in part:

'1. That the plaintiffs' claims against the defendants be settled for $4,000. * * *

'7. That the plaintiffs shall proceed to arrange for the restoration of the premises damaged by fire, being the subject matter of litigation in this suit, and of the said $4,000 the defendant Farm Bureau Life Insurance Company of Michigan shall pay to the plaintiffs and/or their contractors, the amount of their respective statements for the work done in connection with the restoration of the damaged premises.'

The estimated costs of restoration known by plaintiffs during negotiations were $700 over the settlement figure of $4,000. Plaintiffs were unable to obtain satisfactory financing for the extra $700. After a time, the restoration cost estimate rose to $6,500. Approximately 7 1/2 months after the execution of the stipulation agreement plaintiffs' house was found unsafe and condemned by the City of Muskegon. Plaintiffs have not restored their house and admit they have no intention of doing so in the future. Plaintiffs' purpose in the present suit is to obtain the $4,000 held by Farm Bureau to purchase household furniture. Farm Bureau desires to apply the $4,000 against the plaintiffs' mortgage debt. Farm Bureau has instituted foreclosure proceedings because of plaintiffs' default on the debt.

Pursuant to the declaratory judgment procedure of GCR 1963, 521, the trial judge upheld Farm Bureau's decision to apply the $4,000 against the mortgage debt. Plaintiffs had plenty of time to arrange for restoration of the mortgaged home. The record does not present a case of 'supervening impossibility' ¹ excusing the plaintiffs from their contractual promises to restore the house.

Regardless of how the stipulation agreement terminated we still have the problem of disbursing the $4,000. The contract contains no provision for distribution of the $4,000 on any conditions other than restoration of the house. In 'ascertaining the intention of the parties' the...