Oyler v. Fenner

• Decision Date: 02 October 1933
• Docket Number: No. 56.,56.
• Citation: 250 N.W. 296,264 Mich. 519
• Parties: OYLER et al. v. FENNER et al.
• Court: Michigan Supreme Court

264 Mich. 519

250 N.W. 296

OYLER et al.

v.FENNER et al.

No. 56.

Supreme Court of Michigan.

Oct. 2, 1933.

Appeal from Circuit Court, Muskegon County; John Vanderwerp, Judge.

Action by Charles L. Oyler and another against Charles Fenner and others. Judgment for plaintiffs, and defendants appeal.

Affirmed.

Argued before the Entire Bench, except CLARK, J., who took no part.Alexis J. Rogoski and John A. McLaughlin, both of Muskegon, for appellants.

Cross, Foote & Sessions, of Muskegon, for appellees.

WIEST, Justice.

In Oyler v. Fenner, 253 Mich. 417, 235 N. W. 204, we affirmed a decree of the circuit court granting plaintiffs specific performance of an oral land contract, involving the premises in the suit at bar.

This action at law was brought by the vendees in the mentioned oral land contract to recover damages for trespass, claimed to have been committed by defendants in turning cattle upon the premises, to the injury and destruction of peach, plum, and pear trees, grape vines, red raspberries, strawberries, black caps, currant bushes, shrubbery, flower beds, chestnut trees, and seedlings, growing thereon. Defendants have appealed from a joint judgment against them for the sum of $705. In the circuit court defendants moved to dismiss on the grounds that the declaration did not state a joint cause of action in favor of plaintiffs, nor against the defendants, and did not fix the time of the alleged trespass. The motion was without merit.

The declaration alleged a trespass committed by the three defendants, stated the character thereof, fixed the year, and averred damages occasioned to both plaintiffs. If defendants desired more specific information, the rules for obtaining the same should have been employed.

It is claimed that the damages awarded were excessive. The damages are within the range of testimony, and we do not feel called upon to make reassessment.

At the time of the trespass plaintiffs were in possession of the premises under a partly performed verbal contract to purchase, later validated by court decree. That plaintiffs were not living upon the premises the year of the trespass and that their title was in litigation became of no moment upon the mentioned validation, but probably explains, to some extent, the invasion committed.

The three defendants turned the cattle upon the premises. The damages assessed by the court were occasioned by such cattle. Title to the premises was in litigation, and defendants evidently were of...