McGregor v. Mooney

• Decision Date: 01 October 1923
• Docket Number: No. 58.,58.
• Citation: 194 N.W. 1017,224 Mich. 458
• Parties: McGREGOR v. MOONEY et al.
• Court: Michigan Supreme Court

224 Mich. 458

194 N.W. 1017

McGREGOR

v.MOONEY et al.

No. 58.

Supreme Court of Michigan.

Oct. 1, 1923.

Error to Circuit Court, Wayne County; Walter H. North, Judge.

Action by Flora E. McGregor against William F. Mooney and others, copartners doing business as Mooney Bros. Judgment for defendants on appeal from justice's court, and plaintiff brings error. Affirmed.

Argued before WIEST, C. J., and FELLOWS, McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ. William J. Bane, of Detroit, for appellant.

William Henry Gallagher, of Detroit, for appellees.

CLARK, J.

Defendants leased from plaintiff a building in Detroit for a term of years at $300 per month, and left with plaintiff $500 in United States bonds as security for performance. Defendants sublet to another, as they had a right to do, and took a chattel mortgage from such other, covering property placed in the building, which mortgage was later, on September 24, 1922, foreclosed. Chaffee & Co., a corporation, was the purchaser at the foreclosure sale. About this time, being early in the term of the lease, it appeared that defendants could not pay, profitably, a rent of $300 per month. There were negotiations between the parties, to and including October 11th following, for a new lease for the remainder of the term at $175 per month, but no agreement was reached, the plaintiff demanding, and defendants refusing, a forfeiture of the $500 of bonds. Defendants paid rent to October 1, 1922. On October 4th and 5th, plaintiff agreed with Chaffee & Co. to lease to it the premises for a period equal to the remainder of said term at $175 per month and, pursuant to the agreement, a lease was executed on October 13, 1922. Chaffee & Co. paid rent from October 5th to November 1st, $152.50. October 10, 1922, plaintiff gave to defendants a notice of her purpose to relet the premises, and to hold them for any deficiency of rent. Plaintiff sued in justice's court to recover the deficiency for the month of October, $147.50, on the theory that defendants had abandoned the lease, and had refused to pay the rent, and that the leasing to Chaffee & Co. was to minimize damage. Plaintiff had judgment. Defendants appealed. Defendants' theory at the trial in the circuit was that they had not abandoned the lease nor refused to pay rent, that they had treated the lease to Chaffee & Co., as a constructive eviction, and that they were entitled to judgment against plaintiff for the $500 so held as security, less rent for the first few days of October before eviction. The testimony adduced by plaintiff tended to support her theory. The testimony adduced by defendants tended to support their theory. Judge North held that there was an issue of fact for the jury instructing them, in substance, that, if the facts were found with plaintiff, she should have judgment for $147.50 and interest, and, if found with defendants, they were entitled to judgment for $500 and interest, less rent for the said first days of October. Ddefendants had verdict and judgment for $475.33.

Plaintiff brings error, contending...