Frankiewicz v. Konwinski

• Decision Date: 29 March 1929
• Docket Number: No. 98.,98.
• Citation: 224 N.W. 368,246 Mich. 473
• Parties: FRANKIEWICZ v. KONWINSKI et al.
• Court: Michigan Supreme Court

246 Mich. 473

224 N.W. 368

FRANKIEWICZ

v.KONWINSKI et al.

No. 98.

Supreme Court of Michigan.

March 29, 1929.

Appeal from Circuit Court, Wayne County, in Chancery; Vincent M. Brennan, Judge.

Suit by Andrew Frankiewicz against John Konwinski and Katherine Konwinski and others. Decree for plaintiff, and defendants named appeal. Reversed, and bill dismissed.

Argued before the Entire Bench. Mitchell, Hospers & Golds and C. R. Hospers, all of Detroit, for appellants.

Walter M. Nelson, of Detroit, for appellee.

CLARK, J.

Plaintiff filed bill for specific performance and had decree, from which defendants Konwinski have appealed.

Plaintiff, it is alleged, as assignee of the vendees Mr. and Mrs. Bobb in a land contract, owned a farm in Tuscola county, and chattels thereon. Both farm and chattels were mortgaged.

Appellants Konwinski, husband and wife, owned subject to mortgage a two-family dwelling, their home, in Wyandotte.

The parties agreed to exchange the properties, plaintiff's to be subject to mortgages not exceeding $3,050, and appellants' to be subject to mortgage of $1,800. A preliminary writing or option was made and signed on March 11, 1927, which contemplated a formal contract within 15 days. The contract was made and executed, quoting:

‘Detroit, Mich., March 15, 1927.

‘It is hereby agreed between John Konwinski and Catherine Konwinski, his wife, of Wyandotte, Michigan, and Andrew Frankiewicz, of Detroit, Michigan, as follows: The above said parties are trading their respective real estate subject to certain mortgages and chattel mortgage and balance on land contract.

‘John Konwinski and Catherine Konwinski are transferring the premises known as lot No. 5, in block 313 in Hurst and Posts Sub., in the city of Wyandott, Mich., by warranty deed subject to a mortgage of $1800.00 to Andrew Frankiewicz, and he in turn again in consideration of the above is assigning his farm of 120 acres with live stock as per bill of sale and all farm implements by assignment of land contract with a balance due on it of $2500 and a chattel mortgage of $320.00 on cattle on the farm known as the south 1/2 of the N. W. 1/4 and the S. E. 1/4 of N. W. of section 11, T. 11 N., R. 8 east, in the township of Vassar, Tuscola county, Michigan.

‘The deed to the premises above said in the city of Wyandotte, Mich., is to lay in escrow with A. S. Lubienski, 5855 Dubois St., Detroit, Mich., after due investigation of the balance due on the farm above said, which indebtedness should not exceed $3050; if found otherwise in 30 days from date, Andrew Frankiewicz, will pay 1/2 of the expenses incurred in said trade.

‘John Konwinski,

‘Katherina Konwinski,

‘Andrew Frankiewicz,

‘Joseph E. Ronkowski.’

On the same day the parties agreed that the escrow agent be Ronkowski instead of the person named in the contract, and plaintiff delivered to him a bill of sale to appellants of the chattels, an assignment to appellants of the land contract, and the land contract. As plaintiff now contends that the delivery of such documents to Ronkowski was in legal effect delivery to appellants themselves, he being their agent, we quote a paragraph of plaintiff's bill of complaint: ‘8. That thereupon it was agreed and understood that the said Joseph E. Ronkowski, instead of A. S. Lubienski, should hold the said papers until the parties should be able to determine whether there were on the respective parcels of lands exchanged, any incumbrances additional to those disclosed and known to the parties.’ And the allegation is established by the record.

A deed of appellants' home was also deposited with the escrow agent. The deed was signed by the husband, not by the wife; she having refused to sign until put into possession of the farm and chattels. On or near March 21, 1927, plaintiff took possession of the Wyandotte property, and appellants with their children and household goods left Wyandotte and motored to the farm to learn upon arrival that the farm dwelling, valued at $2,500, and insured for but $800, had burned on March 18, and that most of the chattels were gone from the farm.

Appellants returned at once to Wyandotte and took possession of their home.

Ronkowski, depositary of the escrows, disappeared. Neither he nor the papers, except the bill of sale, could be found at the time of the trial. Plaintiff's evidence of title in himself of the land was wholly oral. Harris, owned of the fee to the farm, knew nothing of the alleged assignment by the Bobbs to plaintiff. Harris had received quitclaim deed at later date from the Bobbs and had prosecuted to judgment against them a proceeding for possission.

Plaintiff contends that upon delivery of the papers to Ronkowski title passed. It was agreed between the...