Keller v. Paulos Land Co.

• Decision Date: 21 October 1968
• Docket Number: No. 44,44
• Citation: 161 N.W.2d 569,381 Mich. 355
• Parties: Joseph KELLER and Ethel Keller, husband and wife, Plaintiffs and Appellants, v. PAULOS LAND COMPANY, a Michigan corporation, Defendant and Appellee.
• Court: Michigan Supreme Court

Page 569

161 N.W.2d 569

381 Mich. 355

Joseph KELLER and Ethel Keller, husband and wife, Plaintiffs and Appellants, v. PAULOS LAND COMPANY, a Michigan corporation, Defendant and Appellee.

No. 44.

Supreme Court of Michigan.

Oct. 21, 1968.

James Thomson, Dearborn, for plaintiffs-appellants.

James R. Zerafa, Elk Rapids, for defendant-appellee.

Before the Entire Bench.

DETHMERS, Chief Justice.

Plaintiffs' agent, acting under power of attorney from them, executed and delivered an option to defendant to purchase certain land owned by plaintiffs in Traverse City. After the description of the land in the option the agent, in longhand, wrote, inter alia, 'inculding 33 ft. easement along north line for parking'. Plaintiffs also owned the land adjacent to and immediately north of that described in the option.

Shortly thereafter a land contract was entered into between plaintiffs and defendant for the sale by plaintiffs to defendant of the premises described in the option for $40,000, in which plaintiffs acknowledged a down payment of $15,000. With respect to the mentioned easement the contract contained the following language:

'* * * with a non-exclusive easement for purposes of ingress and egress in connection with this aforesaid parcel of land, said easement being described as 33 feet lying north of said parcel of land, it being agreed that if seller in the development of his land north of said parcel of land desires an alley to be established for Front Street, then such part of said easement as shall not be required for said alley shall revert to the seller, or his heirs, assigns, successors, or grantees.'

The contract also granted the defendant purchaser the right to remove any or all of the three buildings on the land, provided that defendant should then pay on the contract balance a specified sum for each of them. In addition, the contract contained an acceleration clause authorizing plaintiffs, upon any default by defendant, to declare the entire unpaid balance due forthwith.

It appears that later defendant wrote to plaintiffs' attorney to the effect that before it would continue on further closing negotiations it required that plaintiffs execute and deliver to defendant a supplement to the land contract permitting defendant to use the mentioned 33 foot easement strip for parking purposes; and, further, that, upon receipt from plaintiffs of the supplement and a proper deed by defendant's Traverse City bank the latter would forward to plaintiffs a certified check for balance due on the purchase. Plaintiffs declined to execute the supplement.

The trial court, sitting without a jury, found that on September 29, 1962, defendant and its attorney visited the office of plaintiffs' attorney, where they were also present, and tendered a certified check for $25,000, the principal balance due, and another for $710.17 covering interest to that date, and demanded a deed, without demanding the mentioned supplement to land contract or that its provisions be incorporated in the deed; further, that plaintiffs refused the tender but did not object to its being in the form of certified checks rather than in cash. Defendant repeatedly thereafter attempted to obtain the deed without avail. Reasons for plaintiffs' refusal are not disclosed in the record. At no time prior to bringing this action did plaintiffs complain of defendant's use of the strip for parking purposes, not did they complain of the sufficiency of the tender made by certified checks rather than cash, nor did they complain of the latter in their pleadings or otherwise until trial.

On August 3, 1963, plaintiffs brought this action. In their complaint plaintiffs allege that defendant did remove the buildings on the land as by the contract permitted, but failed to make the requisite payments therefor on the purchase balance as in the contract required. Plaintiffs, therefore, declared the entire unpaid balance due, sought judgment for the $25,000 plus interest to date of judgment and an injunction restraining defendant from using the easement strip for parking purposes.

At trial it was agreed that the two questions to be decided by the court were:

1. Was a legal tender made to plaintiffs on September 29, 1962?

2. Were plaintiffs entitled to the injunction sought?

The question of validity of the tender on September 29, 1962, is obviously of concern to the parties only because it is determinative of whether interest on the contract obligation should cease to run as of that date or continue to run, as plaintiffs claim, until date of judgment. As relates to interest stopping as of date of lawful tender of amount due on the contract, in instances where purchaser is entitled to pay entire balance on or before specified due date, see McDonald v. Houseman-Spitzley Corporation, 250 Mich. 509, 231 N.W. 74.

The trial court held the tender legal and valid. It entered judgment accordingly for plaintiffs in the amount of the $25,000 balance due on the principal, together with the $710.17 interest due to date of the tender, all of which defendant conceded to be due, and the court denied the injunctive relief plaintiffs prayed for, with costs in favor of defendant. This was affirmed, on appeal, by the Court of Appeals.

In Browning v. Crouse, 40 Mich. 339, it was held that the tender of a check was a sufficient performance of a promise to pay contained in a composition agreement if no objection was made to the medium of payment at time of tender.

In Hobart v. Vanden Bosch, 256 Mich. 686, 240 N.W. 1, where refusal of tender of a check for the balance due on a stock purchase was made on other grounds but no claim was made that a more technically perfect tender, if made, would have been accepted at that or any subsequent time, the record showing that such a tender, if made, would not have been accepted, it was held that a further tender would have been idle and was not required in law.

The trial court found the facts in this case as to tender to be as described in Browning and Hobart, above. The record amply supports the finding. Hence, there is no occasion for this Court, as there was not for the Court of Appeals, to set aside the...