Denler & Denler Land Co. v. Eby

• Decision Date: 05 October 1936
• Docket Number: No. 121.,121.
• Citation: 277 Mich. 360,269 N.W. 203
• Court: Michigan Supreme Court
• Parties: DENLER & DENLER LAND CO. v. EBY et ux.

277 Mich. 360

269 N.W. 203

DENLER & DENLER LAND CO.

v.EBY et ux.

No. 121.

Supreme Court of Michigan.

Oct. 5, 1936.

Action by the Denler & Denler Land Company against Francis B. Eby and his wife. From a judgment for defendant, plaintiff appeals.

Affirmed.

Appeal from Circuit Court, Oakland County; Frank L. Doty, judge.

Argued before the Entire Bench, except POTTER, J.

P. G. Horler, of Royal Oak, for appellant.

Cole & Cole, of Ferndale, for appellees.

NORTH, Chief Justice.

Plaintiff brought suit in assumpsit for money claimed to be due it from defendants on a land contract. The circuit judge, who heard the case without a jury, found against plaintiff, and it has appealed.

Plaintiff is a Michigan corporation which in effect is owned and controlled by plaintiff's witness, William J. Denler, and his brother. It is the vendor in a land contract covering a house and two lots, the property being in Royal Oak township, Oakland county. The contract vendees' interest was assigned to defendants August 11, 1928. Defendants admit that they thereupon become liable to plaintiff for the contract purchase price. They made numerous payments to and including September 16, 1931, at which time the unpaid balance of the purchase price was $2,131.05. Defendants were then in default and no further payments were made. They received a letter from plaintiff's attorney shortly prior to August 4, 1932, in which suit was threatened unless defendants made some arrangement as to payments then in arrears. Thereupon an interview with the attorney was had by Mr. Eby, concerning which he testified: ‘I went down and explained the financial situation I had gotten into on account of the times. Had lost my properties that I had practically paid for and given them back and had come to the point where I had to give this one back. It was impossible for me to pay any longer, so I told him I would return it. He wanted to know if that was the best I could do. I went into it thoroughly and it was the best I could do. There wasn't anything else to do. So in a week or two I returned it and that was the last I heard of it for a long, long while until the suit was started.’

On August 4, 1932, according to defendants' claim, Mr. Eby mailed the attorney a letter of which a carbon copy was received in evidence. It follows: ‘I finally got the tenant out of this home by moving him up to Bay City near his mother's home. I told you when I last saw you I would decorate this home on the inside before turning it back, which is all I can possibly do. It has gotten to a point that I must begin all over again, and it is going to be hard for a man of my age. I believe I could have this home decorated within ten days or two weeks.’

Defendants also claim Mr. Eby wrote and mailed a letter to plaintiff on August 18, 1932. Its receipt was denied by plaintiff. The carbon copy received in evidence reads: ‘I have been in to see your attorney, Mr. Phelps, and went over the whole matter of our affairs very thoroughly with him. My affairs had come to a point that I simply must return my contract to you and take my loss. Therefore, I had (hand) you in this, my contract, properly endorsed by Mrs. Eby and myself and will consider the matter closed.’

Mr. Eby testified his letter did not come back to him in the mail. Nothing more passed between the parties until this suit was instituted a year later. Defendants seem to have wholly abandoned the property. On the other hand, the secretary of the plaintiff corporation testified: ‘No authority or control over the property has been exercised on behalf of the plaintiff other than that of the vendor on the contract.’

As we view the record, defendants should be bound by the terms of the contract unless, as they claim, it was terminated by mutual agreement or understanding that it was canceled or rescinded. The circuit judge who saw and heard the witnesses rendered an opinion in which he said: ‘The testimony of the defendant is that he had a consultation with the attorneys representing the plaintiff as to the surrender of the contract and introduced copies of two letters, the...