Olsen v. Fry

• Decision Date: 20 March 1926
• Docket Number: No. 103.,103.
• Parties: OLSEN v. FRY.
• Court: Michigan Supreme Court

234 Mich. 233

207 N.W. 803

OLSEN

v.FRY.

No. 103.

Supreme Court of Michigan.

March 20, 1926.

Appeal from Circuit Court, Wayne County, in Chancery; Adolph F. Marschner, Judge.

Bill by Victor A. Olsen against Vernon C. Fry. Decree for plaintiff, and defendant appeals. Affirmed.

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

Kerr, Lacey & Scroggie, of Detroit, for appellee.

FELLOWS, J.

Defendant furnishing part of the land, and other parties furnishing another part, platted and put on the market Sherwood Forest subdivision just outside the city limits of Detroit. The following year and before plaintiff purchased a lot the property was annexed to the city. On March 1, 1917, plaintiff entered into a contract with defendant to purchase lot 330, which was in the portion of the subdivision owned by him. The contract contains in detail many restrictions making the subdivision a strictly high grade residential district. The contract contained the following provision:

‘Nine. In consideration of the purchase by said second party of lot 330 of Sherwood Forest subdivision, said parties of the first part agree that they will, without cost to the second party, provide street paving twenty feet wide before all lots except lots fronting on Livernois avenue and Lincoln highway; five-foot sidewalk and shade trees in front of all lots, put in sewers, drainage pipes, electric lights and water mains in the streets on which said lots are located, all of which improvements, except as the city authorities may install, shall be completed by the end of the year 1919.’

The purchase price of the lot was $3,500 and plaintiff made his payments regularly until the spring of 1921. The improvements had not been put in, due to war conditions as defendant claims, and by mutual agreement further payments were deferred. Afterwards the city put in the public improvements which included sewers, sidewalks, pavement 26 feet wide, and the attendant curbing. The controversy here arises over this situation: Lot 330 is located on the northwest corner of the intersection of Berkley road and Cambridge road and the pavement and sidewalks were put in on two sides of it. Plaintiff concedes he should pay for the extra width of pavement beyond that called for in the contract, but insists that defendant should pay for the balance of the pavement, with the incidental curbing and the sidewalk on both sides of the lot, while defendant insists that the lot fronts on Berkley road and that he should only be required to pay for the improvements on that street. Plaintiff tendered the amount due under his claim, and upon its refusal filed this bill for specific performance, and had decree.

Defendant contended in the court below and here contends that the words ‘before’ and ‘in front of’ should be literally enforced and that they exclude improvements on streets at the side of the lot and upon which the lot faces. The expressions ‘before’ and ‘in front of’ seem to have been used interchangeably. Authorities on the subject are not numerous, but we think they support plaintiff's contention that the language used under the circumstances of this case contemplates improvements upon the street or streets upon which the lot faces. In Justices of Bedfordshire v. Bedford, 7 Exch. 658, where the court had before it the words ‘in front of’ in the Local Act of 43 Geo. III, c. CXXVIII, § 59, it was said by Pollock, C. B.:

‘After looking at the language of the local act, and after hearing the able arguments which have been urged on behalf of the appellants, I am still of opinion that the term ‘in front,’ in the fifty-ninth section, includes every part of the building which the justices could form into a front by opening doors or windows in it, so as to obtain communication with any street; in other words, that every...