Lackovic v. Campbell

• Decision Date: 13 November 1923
• Docket Number: No. 24.,24.
• Citation: 195 N.W. 798,225 Mich. 1
• Parties: LACKOVIC et al. v. CAMPBELL et al.
• Court: Michigan Supreme Court

225 Mich. 1

195 N.W. 798

LACKOVIC et al.

v.CAMPBELL et al.

No. 24.

Supreme Court of Michigan.

Nov. 13, 1923.

Error to Circuit Court, Tuscola County; William B. Williams, Judge.

Suit by Sam Lackovic and another against William P. Campbell and another. Judgment for plaintiffs, and defendants bring error. Affirmed on condition.

Argued before WIEST, C. J., and FELLOWS, McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ. Wixson & Quinn, of Caro (J. C. Hewitt, of Bay City, of counsel), for appellants.

W. J. Spears, of Vassar, and H. H. Smith, of Caro, for appellees.

BIRD, J.

In May, 1921, plaintiffs purchased from defendants on contract 60 acres of land in Fairgrove township, Tuscola county, for the sum of $7,000, and paid down thereon the sum of $1,500. At the time the contract was made a tenant by the mame of Stewart was in possession of the premises. The eighth paragraph of the contract provided that:

‘That contract is made subject to the condition of a certain lease given to Charles Stewart, which expires during the year 1921; the said second parties hereto are to have the income and rents from said lease from the date hereof.’

On January 1, 1922, plaintiffs attempted to take possession of the premises, but Stewart would not permit it. It turned out that Stewart's lease permitted him to remain on the premises until March 31, 1922. When plaintiffs learned this they employed counsel, and he tendered the contract to defendants, rescinded the sale, and demanded the money plaintiffs had paid thereon. Defendant Campbell refused to acquiesce in this, saying he wanted a day or two to think about it and perhaps talk with his attorney. Suit was then begun for damages counting on a breach of the contract, and adding the common counts in assumpsit. Upon the trial plaintiffs amended their declaration, counting specially on a rescission on the ground of misrepresentation and fraud.

The trial court was of the opinion that by construction of the various provisions of the contract it disclosed an intention of the parties that plaintiff should have possession of the premises not later than January 1, 1922. In view of defendants' failure to give plaintiffs possession at that time, and the statement in the contract that Stewart's rights would be determined by January 1, 1922, the chancellor found there was a basis for rescission, and he awarded them a judgment for the amount paid on the contract, together with the interest thereon.

It was the contention of defendants' counsel that the contract was silent as to possession, and that under our authorities plaintiffs would not be entitled to the possession of the premises until they were finally paid for and a deed received. The trial court's construction of the contract as to possession is so well stated that we herewith insert it:

‘1. May 27, 1921, plaintiffs and defendants entered into a land contract by which defendants agreed to convey to plaintiffs 60 acres of land for the consideration of $7,000. The contract does not in express terms provide that plaintiffs should have possession of the premises while the deferred payment were being made, but plaintiffs claim that by the terms of the contract, properly construed, and by the interpretation placed on the contract by both parties, the plaintiffs were entitled to take possession of the premises January 1, 1922, that being the date when, by the terms of the contract, the lease of Stewart would expire.

‘2. The contract being expressly made subject to the terms of the lease to Stewart, and not being able to get possession of the land because of the refusal of Stewart to give possession before the expiration of his lease, plaintiffs rescinded the contract, and bring this suit to recover $1,500 paid by them to defendants on the contract.

‘3. I am clearly of the opinion, gentlemen of the jury, that it was the intention and understanding of all the parties to the contract that plaintiffs were to have possession of the land not later than January 1, 1922. I have reached this conclusion from the terms of the contract. There being an ambiguity in the contract in that regard, it becomes the duty of the court to construe the contract and determine its meaning.

‘4. The deferred payments were to be made $500 annually, so that the last payment would not be due until 10 years from December 27, 1922, and all the time-and all the deferred payments bear interest at 7 per cent. It would not be reasonable to assume that during that time defendants were to have the use and occupancy of the property, thus depriving the plaintiff of the only means he would have to provide for the payments for the land. During the 10 years plaintiff was to pay the taxes and keep the buildings insured, loss, if any, to be paid to defendants. Plaintiffs were not to commit, nor suffer any other person to commit, waste or damage, to said lands. This implies that he was to be in possession and control of said lands, otherwise he would not have an oppor tunity to commit waste or prevent others from doing so.

‘5. The eighth paragraph of the lease provides that the contract is made subject to the conditions of a certain lease given to Charles Stewart, which expires during the year 1921. This implies that the plaintiffs would have the full use and possession of the land, except as their use and possession was limited by Stewart's lease to expire during 1921.

‘6. The tenth paragraph of the contract provides that in case of default in making payments, etc., defendants may re-enter upon said land; that is, defendants may oust plaintiffs from possession of the lands. He could not oust them from possession unless they were in possession.

‘7. It further provides that in case of default all payments and improvements made on the land by plaintiff, shall be forfeited to defen...