Picard v. Shapero, 73.

• Decision Date: 08 December 1931
• Docket Number: No. 73.,73.
• Citation: 239 N.W. 264,255 Mich. 699
• Parties: PICARD v. SHAPERO.
• Court: Michigan Supreme Court

255 Mich. 699

239 N.W. 264

PICARD

v.SHAPERO.

No. 73.

Supreme Court of Michigan.

Dec. 8, 1931.

Appeal from Circuit Court, Wayne County; Fred S. Lamb, Judge.

Action by Frances H. Picard against Samuel Shapero. Judgment for plaintiff, and defendant appeals.

Affirmed.

Argued before the Entire Bench.

Robert Hanley, of Detroit, for appellant.

Henry H. Roberts, of Detroit, for appellee.

NORTH, J.

Plaintiff sold to defendant on a land contract an apartment building in the city of Detroit for $128,000. There was a down payment of $19,000, and the balance was payable in quarterly payments of $2,250 each. Defendant defaulted in the payment due November 1, 1930. Notice of forfeiture was served December 2, 1930. Plaintiff took judgment in summary proceedings before a circuit court commissioner January 19, 1931. The amount then found due and unpaid on the land contract was $2,250. Defendant appealed to the circuit court, where judgment was again entered for plaintiff February 20, 1931, and $4,500 found to be due and unpaid on the contract. This latter amount included a second quarterly payment which the circuit judge found was due and payable February 1, 1931. Defendant has appealed.

In the original land contract, the vendee agreed to join ‘in any bank mortgage’ which the vendor might place upon the premises. The parties entered into an agreement on October 23, 1923, by which the vendee consented to a mortgage in a sum not exceeding $65,000 bearing 6 per cent. interest being placed as a first lien upon the property. See Shapero v. Picard, 235 Mich. 481, 209 N. W. 576, 577. In this agreement the vendor undertook to make all payments of principal and interest on the mortgage according to the terms thereof, and, in the event of his failure so to do, it was provided in the agreement ‘all payments of principal and interest upon the within contract shall cease until such time as said payments' are made. Plaintiff was not in default on the mortgage obligation at the time notice of forfeiture was served; but interest which fell due January 1, 1931, was unpaid at the time judgment was taken before the circuit court commissioner. This installment of interest was paid by plaintiff the day before the trial in circuit court. It is appellant's contention that, because of the provision above quoted from the contract of October, 1923, nothing was due and payable on the land contract at the time of the hearing before the circuit court commissioner, and further that on appeal to the circuit court the issue should have been adjudicated in accordance with the facts as they existed at the time of the trial in the commissioner's court rather than upon hearing de novo. Appellant's position cannot be sustained, for two reasons. Upon appeal from the circuit court commissioner, the practice is the same as upon appeal from justice court, and an entirely new and independent trial is had. Comp. Laws 1929, § 14987. Further, upon service of the notice of forfeiture, the vendee's right to enforce the contract was terminated or at least suspended until its terms were reinstated by payment of accrued installments. Stevens v. Most, 251 Mich. 23, 231 N. W. 47. Hence the vendee could not complain because of or defend upon the ground that plaintiff defaulted in paying the mortgage interest which became due after notice of forfeiture.

There is no merit in appellant's contention that, because the vendor for a time was in default as to payments due on the mortgage, the vendee for a corresponding period should not be chargeable with interest on the unpaid portion of the contract price. The agreement expressly provides only that the vendee's obligation to pay ‘shall cease until such time as said payments' on the mortgage are made. It does not suspend accrual of interest. As above noted, all payments due on the mortgage had been satisfied at the time judgment was taken in the circuit court. Plaintiff was not then in default, and she was entitled to have the amount due at the time of trial in the circuit court fixed by the judgment of that court. Stevens v. Most, supra.

At the close...