Draper v. Nelson

• Court: Michigan Supreme Court
• Writing for the Court: SHARPE
• Citation: Draper v. Nelson, 254 Mich. 380, 236 N.W. 808 (Mich. 1931)
• Decision Date: 01 June 1931
• Docket Number: No. 119.,119.
• Parties: DRAPER et al. v. NELSON.

254 Mich. 380

236 N.W. 808

DRAPER et al.

v.NELSON.

No. 119.

Supreme Court of Michigan.

June 1, 1931.

Appeal from Circuit Court, Van Buren County; Glenn E. Warner, Judge.

Action by Ella M. Draper and another against Gordon E. Nelson. Judgment for plaintiffs, and defendant appeals.

Affirmed.

Argued before BUTZEL, C. J., and WIEST, CLARK, McDONALD, POTTER, SHARPE, NORTH, and FEAD, JJ. David Anderson, of Paw Paw, for appellant.

E. L. Burhans and Lewis R. Williams, both of Paw Paw, for appellees.

SHARPE, J.

On July 23, 1927, the plaintiff Ella M. Draper entered into a written agreement with the defendant in which she agreed to sell to him forty acres of land described therein and the following personal property: ‘1 team horses and harness, 3 cows, 1 brood sow and 7 shoats, chickens now on the farm, all farm tools also all crops on the farm at time of sale harvested or unharvested’-for the sum of $6,500, to be paid for as follows: $200 on execution of the agreement, $1,300 on or before August 15th, and $200 or more annually until $3,000 and interest at 6 per cent. had been paid, when a warranty deed would be given and mortgage taken for the balance.

On August 29, 1927, when the $1,500 had been paid, a land contract in the usual form was entered into by the parties, with conditions as to payments of the balance similar to those above stated. The personal property was referred to therein in the following language: ‘This contract to include personal property on the farm, which personal shall be maintained during the life of this contract at not less than the present amount.’

Defendant defaulted in his payments. A notice of forfeiture was given, and he vacated the premises on October 15, 1930, taking the personal property with him. Plaintiffs bring this action to recover the value thereof. The trial court held that under the provisions of the contracts the title to the personal property was still in the plaintiffs, and that the defendant was liable for the conversion thereof. He submitted the question of its value to the jury, and entered a judgment for the plaintiffs for the amount thereof as found by them.

In the conceded facts in the case made, by which review in this court is sought, it is said: ‘Defendant makes no claim of error as to the proofs submitted or the verdict rendered as to the amount of damages, defendant hereby admitting that if there was a cause of action at all in favor of plaintiffs the judgment is correct in amount.’

The contract first entered into was simply an agreement on the part of the plaintiff to sell certain real estate and personal property to the defendant at a stated price. No title passed to the defendant thereunder. When the $1,500 had been paid, the land contract was entered into and possession of both the real and personal property delivered to the defendant. It contained the usual provision that, in case of default in payment, the plaintiffs (vendors) should have the right to declare the contract void and to retain all payments as stipulated damages for nonperformance.

Counsel for the defendant insists that the title to this personal property...