Jankowski v. Jankowski, 76.

• Decision Date: 14 May 1945
• Docket Number: No. 76.,76.
• Citation: 18 N.W.2d 848,311 Mich. 340
• Parties: JANKOWSKI et al. v. JANKOWSKI et al.
• Court: Michigan Supreme Court

311 Mich. 340

18 N.W.2d 848

JANKOWSKI et al.

v.JANKOWSKI et al.

No. 76.

Supreme Court of Michigan.

May 14, 1945.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Genesee County; Philip Elliott, judge.

Suit by Joseph E. Jankowski and others against Casimer Jankowski and others for an injunction to restrain further proceedings in an action before the Circuit Court Commissioner for the recovery of possession of certain realty, wherein named defendant and wife filed a cross-bill asking that land contract be declared forfeited. From a decree ordering payment of balance of purchase price and execution and delivery of a deed to the realty together with the abstract of title, defendants appeal.

Decree affirmed.

Before the Entire Bench.

Lewis Kearns, of Flint (James M. Pearson, of Flint, of counsel), for defendants and appellants.

Howard E. Weaver, of Flint, for plaintiffs and appellees.

BUTZEL, Justice.

Joseph E. Jankowski and Anna, his wife, purchased on land contract a house and lot in Flint, Michigan, from Casimer Jankowski and Helen, his wife. The contract, dated August 1, 1932, provided for a down payment of $100 and a balance of $2,355.54, payable in monthly installments of $25 or more, including interest at 6 per cent. per annum, plus taxes and insurance. It contained a covenant on the part of the purchasers not to assign or convey their interest in the contract or any part thereof without first obtaining the written consent of the seller. It further provided that a violation of this covenant should be considered a default, that no assignment or conveyance by the purchaser should create any liability whatsoever against the seller until a duplicate thereof, duly witnessed and acknowledged, together with the residence address of the assignee, be delivered to the seller, and that in the event of an assignment, ‘such notice to the seller or acceptance of the same by him,’ or his acceptance of payment made by the assignee shall constitute a change of parties and privity of contract, and a novation between the seller and assignee, and enable the seller to maintain any suit or action for payment, specific performance, deficiency or summary proceedings against the assignee alone.

On October 14, 1942, Joseph and his wife entered into a subcontract to sell the property to Kenneth DeCourval and Anna, his wife, for $3,500, with a down payment of $500, the balance payable monthly in installments of $30 or more, including interest. On November 30, 1942, Joseph and wife made an absolute assignment of the original contract to DeCourval and wife, upon their surrender of the subcontract. No consent to the subcontract nor to the absolute assignment of the vendees' interest was ever given by Casimer and wife by any instrument signed by themselves in person. On December 11, 1942, they gave notice to Joseph and wife and DeCourval and wife of forfeiture of the contract, stating that the amount of $2,304.66, representing principal and interest as of December 19, 1942, was due, giving three reasons for the forfeiture. They have abandoned two of them and rely solely on the breach of contract caused, as they claim, by the assignment of the vendees' interest. On December 30, 1942, they filed a complaint to recover possession before the Honorable Arthur C. Elliott, circuit court commissioner for Genesee County. Thereupon Joseph...