Friedt v. City of Detroit, 146
| Decision Date | 01 December 1955 |
| Docket Number | No. 146,146 |
| Citation | 73 N.W.2d 211,343 Mich. 610 |
| Parties | Glenn H. FRIEDT, H. E. Adelsperger, Jr., and Vincent B. Arnold, Plaintiffs and Appellants, v. CITY OF DETROIT, a municipal corporation, and Charles N. Williams, City Treasurer, Defendants and Appellees. Notion |
| Court | Michigan Supreme Court |
Fischer, Sprague, Franklin & Ford, Detroit, Edward B. Harrison, Detroit, of counsel, for appellants.
Paul T. Dwyer, Corp. Counsel, Vance G. Ingalls, Frederick E. Byrd, Asst. Corp. Counsel, Detroit, for appellees and cross-appellants.
Before the Entire Bench.
The city of Detroit commenced condemnation proceedings for the purpose of slum clearance in 1947. Three lots owned by plaintiffs Glenn H. Friedt, H. E. Adelsperger, Jr., and Vincent B. Arnold, and one lot owned by United Platers, Inc., were involved in this condemnation proceedings. The United Platers, Inc., was owned by plaintiffs, and on October 11, 1949, United Platers conveyed its interest in said lot to plaintiffs, the deed being recorded October 14, 1949.
On June 14, 1950, a jury award of $140,000 was confirmed in favor of plaintiffs and United Platers, Inc., 'as their interests may appear.' Defendant city treasurer, on July 26, 1950, filed an affidavit with the recorder's court stating that funds were available to pay this award, and on the same date notified plaintiffs that the award would be made and paid on the following conditions:
Plaintiffs' first contact with the treasurer was on May 3, 1951, when their attorney made oral demand for payment on Mr. Repp, in charge of processing payment of condemnation awards. Plaintiffs' attorney at this time informed Mr. Repp that he had with him a disclaimer of any interest in the award, executed by United Platers, Inc.
Mr. Repp asked for the 3 instruments mentioned in the treasurer's letter of July 26, 1950. Plaintiffs' attorney refused to furnish same and suggested that Repp contact the corporation counsel's office. Between this date and July 31, plaintiffs' attorney telephoned Repp and was informed by him that he had not heard from corporation counsel. On July 31, 1951, plaintiffs' attorney contacted the treasurer's office and was again informed that it had not heard anything from corporation counsel's office, and that the money could not be paid until the requested instruments were furnished.
About September 1, 1951, plaintiffs' attorney again contacted Repp and received the same information as was received on the previous visit. He then contacted Mr. Ingalls, of the corporation counsel's office, who said that they would waive the quitclaim deed and title search, but would insist upon a signed release, said release providing that the plaintiffs 'do hereby release, quit-claim and convey to said corporation, forever, the said piece or parcel of land as aforesaid, and do waive and relinquish all right of appeal of said verdict to the Supreme Court of said State, and to waive and relinquish for their heirs, executors and administrators, all remedies or rights of action, either in law or in equity, which they may possess by reason of any informality or error of any nature in the proceedings.'
Plaintiffs' attorney objected, stating that if at a later date the condemnation proceedings were found to be faulty his clients would have no remedy, having conveyed to the city their interest, and that his clients wished to retain that right if the city, for any reason, was not able to rely upon the condemnation award.
Discussions on this matter were held at various times between then and December, 1951. On December 31, 1951, plaintiffs' attorney offered the corporation a receipt which provided:
'The said jury in the above entitled matter did in their verdict and report award to the undersigned the sum of $140,000 as damages and compensation for the taking for the purpose detailed in the hearing.
'Now therefore, the undersigned hereby acknowledges payment by the city of Detroit of the sum of $140,000.'
Plaintiffs also offered corporation counsel the following disclaimer:
'United Platers, Inc., a Michigan corporation, hereby disclaims any interest or right to share in the sum of $140,000 to be paid to H. E. Adelsperger, Jr., Vincent B. Arnold and Glenn Friedt, but expressly reserves to itself and for its exclusive benefit, its rights expressed in an appeal now pending in the Supreme Court.'
Corporation counsel then agreed to waive the 3 instruments but refused to pay interest, and after a conference between corporation counsel, Repp, and plaintiffs' attorney, the receipt and disclaimer were returned to plaintiffs' attorney. No further efforts were made by plaintiffs to collect judgment and interest until this petition for mandamus was filed on May 5, 1954.
The trial court, after hearing proofs, allowed interest of approximately $4,000 for 2 periods. The first period included the 63 days between December 31, 1951, and March 2, 1952. The court allowed interest for this period on the theory that it was plaintiffs' duty to demand payment before interest would apply, and that such duty was not met by plaintiffs in conformity with the charter until December 31, 1951. The trial court further held that on January 2, 1952, plaintiffs realized that the city's position was final and it was their duty to seek a prompt decision by the court; that 2 months was ample time for plaintiffs to take such action, and that, therefore, plaintiffs were guilty of laches on March 2, 1952, the expiration of the 2-month period.
The second period in which interest was allowed by the court was from the day suit was filed to the date of the trial court's opinion and decree, namely: May 5, 1954, to October 8, 1954.
Plaintiffs appealed; the city of Detroit cross-appealed.
'Question 1: Was a demand made as required by the charter of the city of Detroit?
The charter under title 8, ch. 1, § 16, provides 'And it shall be the duty of the treasurer to securely hold such money in the treasury for the purpose of paying for the property taken, and pay the same to the persons entitled thereto, according to the verdict of the jury, on demand, and not pay out the money for any other purpose whatever.'
Appellees rely on Connor v. State Treasurer, 333 Mich. 219, 52 N.W.2d 672, and Marion v. City of Detroit, 284 Mich. 476, 280 N.W. 26, holding that a claim for interest must be denied if plaintiffs fail to make a proper legal demand for the proper amount due. In the Connor case this Court held [333 Mich. 219, 52 N.W.2d 676]:
In the Marion case, the question of demand was commented upon as follows [284 Mich. 476, 280 N.W. 31]:
counsel in September cannot be said to be a demand even as of that date, as it was not a distinct demand for the sum of money to which the party making it was then entitled. 33 C.J. p. 235.
'In no event, therefore, would plaintiffs be entitled to interest on the award after February 2o, 1937, when the funds for payment thereof were set aside and plaintiffs were notified to this effect.'
The record is silent as to why plaintiffs allowed a 9-month period (July 26, 1950, the date of treasurer's notification the money was available, and May 3, 1951, when plaintiffs first contacted the treasurer) to elapse without doing anything in regard to the award.
Plaintiffs seek to excuse this period of inaction on the theory that making a demand would constitute an idle ceremony. Supporting this position appellants cite Thal v. Detroit Board of Education, 316 Mich. 351, 25 N.W.2d 215, holding that the law does not require either individuals or corporate entities to indulge in idle ceremony or demand performance of an act that would be a useless or idle gesture. The Thal case did not involve a condemnation award but was an action by school teachers to recover unpaid salaries. The Thal case does not here apply because the city charter requires that a demand be made.
Plaintiffs' failure to make a demand for 9 months after receiving the treasurer's notice cannot be excused on the grounds that the treasurer did not have the right to insist upon the conditions of payment. Therefore, the plaintiffs' claim for interest on the award of $140,000 from July 26, 1950, to October 8, 1954, is denied between July 26, 1950 (when plaintiffs received the treasurer's notice), and May 3, 1951 (when plaintiffs first contacted the treasurer's office).
Question 2: Did plaintiffs make a proper demand on May 3, 1951?
The trial court's opinion contains the following:
'This court would be inclined to find that a sufficient demand for payment was made by the plaintiffs in the conferences between counsel for the plaintiffs and the condemnation award clerk of the city treasurer and Mr. Ingalls on either May 3, 1951, or a date in the vicinity of September 1, 1951, or on September 7, 1951, or on September 26, 1951, or December 28, 1951 (all of these dates representing dates of conferences in 1951 between various of the attorneys for the plaintiffs and various representatives of the city of Detroit), if it were not for the fact that at none of...
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