McCullagh v. Goodyear Tire & Rubber Co., 33

• Decision Date: 14 April 1955
• Docket Number: No. 33,33
• Parties: Don McCULLAGH, Plaintiff and Appellee, v. GOODYEAR TIRE & RUBBER COMPANY, a foreign corporation, Defendant and Appellant.
• Court: Michigan Supreme Court

Page 731

69 N.W.2d 731

342 Mich. 244

Don McCULLAGH, Plaintiff and Appellee, v. GOODYEAR TIRE & RUBBER COMPANY, a foreign corporation,

Defendant and Appellant.

No. 33.

Supreme Court of Michigan.

April 14, 1955.

Jennings, Fraser, Parsons & Trebilcock, Lansing, for appellant.

Pierce & Planck, Lansing, for appellee.

Before the Entire Bench.

SHARPE, Justice.

This is an action for damages for failure of a tenant to surrender premises to the landlord on the termination of the lease. The record supports the following facts: On December 15, 1943, plaintiff, Don McCullagh, leased the premises at 1110 East Michigan Avenue in the city of Lansing from Belle R. Carr for a term of five years. The lease was renewed for a further five year term expiring December 15, 1953. On September 6, 1945, the parties entered into an agreement permitting plaintiff to make certain alterations in the building. Subsequently, plaintiff desired to move to Detroit and leased the premises to Dick Fair Company, who in turn leased the premises to Malcolm Milks, Inc. On May 20, 1953, Malcolm Milks, Inc., leased the premises to defendant, Goodyear Tire and Rubber Company, from July 1, 1953, to November 30, 1953, at a monthly rental of $537. Goodyear Tire and Rubber Company negotiated the lease with Malcolm Milks, Inc., with the understanding that Malcolm Milks, Inc., had the lease until December 15, 1953. After the lease was signed, Mr. Milks inserted the date of November 30, 1953. Defendant company also entered into a lease with Edelson Realty Company, the then owner of the premises, for a ten year term from December 16, 1953, to December 15, 1963. When defendant company learned that plaintiff retained a leasehold from December 1, 1953, to December 15, 1953, they tendered to the plaintiff the sum of $268.75 as a fair rental of the premises based on a monthly rental of $537.50. The money was returned.

On September 30, 1953, plaintiff, through his attorney, gave notice to Malcolm Milks, Inc., and defendant company to surrender and deliver up the premises on or before November 1, 1953, for the reason that plaintiff had approximately a 200 used car inventory which he wished to liquidate by an auction sale in Lansing. On November 23, 1953, plaintiff gave defendant, at its home office in Ohio, a notice to quit on December 1, 1953.

A summary proceeding for possession was instituted. The cause came on for a hearing on December 4, 1953, and resulted in a judgment for plaintiff. Defendant appealed and demanded a jury trial in the circuit court. On November 23, 1953, defendant leased a store at 2116 East Michigan Avenue in Lansing and tendered it to plaintiff for the purpose of conducting an auction sale of used cars. Plaintiff refused to accept defendant's offer. On January 25, 1954, plaintiff instituted the present action alleging loss of profits because of defendant's holding over. Plaintiff's declaration alleges in part as follows:

'That the defendant continued in possession of said premises, whereupon on December 1, 1953 the plaintiff instituted summary proceedings for the recovery of the possession of said premises before Arthur Kramer, Circuit Court Commissioner of Ingham County. That said cause was heard on to-wit, December 4, 1953, and a final judgment was issued in favor of the plaintiff and against the defendant. That on December 9, 1953 defendant appealed to the Circuit Court of Ingham and demanded a trial by jury, thereby preventing any possible determination of said appeal before December 16th. That, subsequently, said appeal has been dismissed upon stipulation of counsel for the respective parties. That despite the repeated requests and demands for possession of the premises made upon the defendant by the plaintiff, the defendant continued wrongfully and unlawfully and without right, to trespass upon the premises and withheld the possession thereof from the plaintiff, and to retain and use the same.

'That in consequence of the forcible detainer of said premises by the defendant, the plaintiff has been greatly injured and damaged. That, as the defendant was fully advised, the plaintiff is an automobile dealer in Detroit, Michigan and had on hand between two and three hundred used automobiles. That during the fall of the year 1953, the value of used cars suffered a sharp decline, and it was to the plaintiff's advantage to establish whatever loss there might be in his used car inventory before the end of the year. That he had planned to used the building at 1110 East Michigan Avenue, Lansing, for the purpose of liquidating this used car inventory at auction and that said building had been remodelled to make it suitable for holding such auction sales, and tht second-hand automobiles command a substantially higher price in Lansing that they do in Detroit.

'That plaintiff has been deprived of the substantial profits which he would have gained if he had had the opportunity to use premises for the sale of automobiles at auction during the period, December 1, to December 15, 1953.

'That plaintiff has also been damaged by virtue of the fact that possession of said premies would have enabled him to remove, peacefully, the electrically-operated overhead doors to which he is entitled, which said privilege the owner of the property has failed to accord to him and which will put the plaintiff to further legal expense and costs to recover his property or the value thereof.'

Defendant filed an answer to plaintiff's declaration in which it is alleged in part as follows:

'* * * The defendant denies that the plaintiff has been injured or damaged because of his inability to obtain possession of the premises. In further answer thereto, the defendant avers that it tendered to the plaintiff a larger and more convenient building at 2116 East Michigan Avenue, Lansing, Michigan, for the wholesale auction of automobiles. The defendant admits that at the hearing before the Circuit Court Commissioner the plaintiff claimed that he intended to auction two hundred automobiles in the City of Lansing. The defendant admits upon information and belief that the plaintiff is an automobile dealer in Detroit, Michigan, but neither admits nor denies that he had in excess between two hundred and three hundred automobiles for the reason it has not sufficient information upon which to form a belief and as to those allegations, leaves that plaintiff to his proofs. The defendant denies that during the fall of the year 1953 the value of used automobiles suffered a sharp decline in excess of the ordinary month by month decline of prices of used automobiles. The defendant neither admits nor denies that it was to plaintiff's advantage to establish whatever loss there might be in his used car inventory before the end of the year for the reason it has not sufficient information upon which to form a belief and therefore, as to those allegations, leaves the plaintiff to his proofs. This defendant denies that the plaintiff ever planned to use the building at 1110 East Michigan Avenue, Lansing, Michigan for the purpose of liquidating his used car inventory at auction. That such claim was a pretense when the plaintiff was under the belief that he could secure double damages from the defendant if he established that the defendant was a trespasser upon the premises. That the plaintiff had full opportunity to conduct such an auction in the building tendered to the plaintiff in the month of November, 1953. The defendant denies that the building had been remodeled by the plaintiff to make it suitable for holding such auctions since for the reason that such remodeling, if any, was for the purpose of servicing automobiles. The defendant denies that second-hand automobiles command a substantially higher price than they would in Detroit or any other place in Michigan.

'The defendant denies that the plaintiff has been deprived to substantial profits which he would have gained if he had had the opportunity to use the premises for the sale of automobiles at auction during the period December 1 to December 15, 1953. That the allegations in paragraph 8 are in contradiction to the allegations in paragraph 7 wherein he alleges that he would sell the automobiles at a loss at an auction in Lansing. In all events the plaintiff could have acquired all the profits of an auction sale in the building which the defendant tendered to him that he could have obtained in the building at 1110 East Michigan Avenue. The defendant further avers that loss of profits is not an item of damages in plaintiff's cause of action.'

The cause came on for trial at which time plaintiff was permitted to offer testimony on loss of profits over the objection of counsel for defendant. At the close of all testimony, the trial court gave the following instructions in part to the jury:

'I charge you that as a matter of law the defendant, Goodyear Tire and Rubber Company, was guilty of an unlawful and forceful detainer of the possession of the premises, and that plaintiff was entitled thereto from and after November 30, 1953 to December 15, 1953. The plaintiff claims that the withholding by the defendant of the possession of the premises to which the plaintiff was entitled has deprived him of certain profits which he would otherwise have made.

'I charge you that it is the law in Michigan that the plaintiff is entitled to recover from the defendant the amount representing the profits which he may have lost had he been permitted to expose automobiles for sale. It is for you, the jury, to determine the amount of such loss if they have been shown with reasonable certainty and are not so remote, speculative or contingent as to form no reliable basis for a determination as to loss.

'In connection with the matter of proof of damages, I charge you that if the plaintiff has been damages, the fact that the extent of the damage cannot be precisely ascertained does not prevent recovery. Damages are not rendered uncertain because they...