Obremski v. Dworzanin

• Decision Date: 08 September 1948
• Docket Number: No. 60.,60.
• Citation: 322 Mich. 285,33 N.W.2d 796
• Parties: OBREMSKI v. DWORZANIN et al.
• Court: Michigan Supreme Court

322 Mich. 285

33 N.W.2d 796

OBREMSKI

v.DWORZANIN et al.

No. 60.

Supreme Court of Michigan.

Sept. 8, 1948.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Wayne County; Lila M. Neuenfelt, judge.

Action by Frank Obremski against Michael Dworzanin and Helen Dworzanin for damages for breach of a contract to sell realty. From an adverse judgment, plaintiff appeals.

Judgment reversed, and judgment ordered entered against defendants in accordance with opinion.

See also 313 Mich. 495, 21 N.W.2d 828.

Before the Entire Bench.

Asher L. Cornelius, of Detroit, for plaintiff and appellant.

Harry S. Bennett and Maxwell I. Silverstein, both of Detroit, for defendants and appellees.

NORTH, Justice.

This is a suit for recovery of $1,500, that being the amount of stipulated damages provided in a written agreement executed by the parties for the sale of certain property by defendants to plaintiff. From a judgment in defendants' favor plaintiff has appealed.

On March 31, 1944, plaintiff entered into an agreement to purchase from defendants the beer garden business, including a class C liquor license and the real estate which is located at 8034 Michigan Avenue, in Detroit. The consideration was $18,400, payable as follows: $1,500 deposited at the time of executing the agreement, $7,900 upon the execution of the land contract, and the balance in specified monthly payments. The agreement contained the following provision:

‘In the event that the sellers or buyers will decline to close the deal, the refusing party have to pay the other party $1500.00 as liquidated damages.'

At the time the above agreement was executed plaintiff deposited $1,500 with the real estate agency which represented defendants in this deal. Thereafter plaintiff made repeated efforts to have defendants consummate the transaction, but he was met with repeated excuses and finally in May, 1944, defendant Michael Dworzanin definitely refused to perform the agreement into which he and his wife had entered with plaintiff. Thereafter and on June 17, 1944, plaintiff began suit. From the allegations in the declaration as first drawn it is clear that this suit was solely for the recovery of ‘Fifteen Hundred ($1500.00) Dollars as liquidated damages,’ as provided in the agreement above quoted. Later on plaintiff's declaration was amended so as to include recovery for the $1,500 plaintiff deposited with defendants' agent at the time the agreement was signed. About the time of this amendment to plaintiff's declaration the parties got together and after some consultation the $1,500 deposited by plaintiff was returned to him. This was done with the knowledge and approval of defendants' counsel. At the time the $1,500 deposit was returned to plaintiff the suit was at issue and pending in the circuit court. Nothing was done concerning the pending suit for recovery of the stipulated damages, notwithstanding a receipt was given for the payment of the deposited $1,500 as follows:

‘Detroit, Michigan. December 11, 1944. Received of Michael Dworzanin $1500.00 refund of deposit given for purchase of property and business at 8034 Michigan Avenue, Detroit.'

Signed-‘F. W. Obremski. $1500.00.’ Apparently at the same time plaintiff received return of his deposit he returned the abstract of title to defendants, which abstract had earlier been submitted to plaintiff for his inspection. The sole issue on this appeal is whether there was mutual rescission by the parties of the agreement entered into for the sale of the property. In appellees' brief the issue is stated as follows:

‘Did the conduct of the parties in accepting the refund of the deposit of $1500.00 and the surrender of the abstract constitute a mutual rescission of the contract and amount to a release, accord and satisfaction of plaintiff's cause of action?'

Notwithstanding the determination of the trial court to the contrary, after careful review of this record, we are brought to the conclusion that there was neither mutual rescission of the agreement signed by the parties, nor a release or accord and satisfaction of defendants' obligation to perform the agreement. As bearing upon this issue the following facts and circumstances disclosed by the record are controlling.

Plaintiff's suit, as originally started, was for the sole purpose of recovering the stipulated damages provided for in the agreement...