Schon v. Lawrence

• Decision Date: 06 June 1932
• Docket Number: No. 154,Jan. Term, 1932.,154
• Parties: SCHON v. LAWRENCE et al.
• Court: Michigan Supreme Court

258 Mich. 543

242 N.W. 745

SCHON

v.LAWRENCE et al.

No. 154, Jan. Term, 1932.

Supreme Court of Michigan.

June 6, 1932.

Appeal from Circuit Court, Kalamazoo County; Geo. V. Weimer, Judge.

Action by Elizabeth M. Schon against Harold B. Lawrence and another. Judgment for plaintiff, and defendants appeal.

Affirmed.

Argued before the Entire Bench.Jackson, Fitzgerald & Dalm, of Kalamazoo, for appellants.

John H. Bloem, of Kalamazoo, for appellee.

McDONALD, J.

This action was brought to recover payments made on the purchase price and improvements on property bought on a land contract which the plaintiff claims was afterwards repudiated and rescinded by the defendants. The plaintiff had a verdict and judgment. The defendants have appealed.

The record shows the following material facts: The defendants sold to the plaintiff on land contract their equity in premises known as the Olmstead street property in Kalamazoo county. The consideration was $4,500. As an initial payment, the plaintiff gave them an equity in a farm with certain stock and tools at an agreed value of $1,400. The balance was to be paid in monthly installments. She went into possession of the Olmstead property and made improvements thereon as required by the contract. Soon thereafter she defaulted in her monthly payments. The defendants served notice on her by registered mail that they intended to declare a forfeiture, unless she paid all amounts in arrears. She did not pay. The defendants claim that they then personally served a declaration of forfeiture on her. This she denies. Summary proceedings were begun but were discontinued. Acting on their claim that the contract had been terminated by notice of forfeiture and that the plaintiff had abandoned the premises, the defendants took possession and removed certain goods which they found in the house. The plaintiff then brought this suit on the theory that the defendants had not lawfully terminated the contract, but by their conduct had repudiated and rescinded it and wrongfully dispossessed her of the premises. The following instruction of the court is a plain statement of the issue submitted to the jury: ‘Under this contract it was the duty of the defendants to give this second notice before taking possession. If they gave the second notice, the notice of forfeiture, actual forfeiture, then they had a right to repossess themselves of the premises, either in a proceeding before the circuit court commissioners, or in the manner in which the premises were repossessed. And so it is on that disputed question of fact that this controversy hinges. The first notice was served by registered mail admittedly. Was the second notice served as claimed by the defendants and denied by the plaintiff? If the second notice was served as claimed by the defendants, your verdict should be for the defendants, no cause of action. If the second note was not served, if the contract was not forfeited, then the plaintiff is entitled to a verdict in some amount. It is for you to say.’

In this instruction the court stated all there was to the case. No error is assigned on it. By verdict of the jury there was no forfeiture. Without a forfeiture, the act of defendants in dispossessing the plaintiff was a repudiation and rescission of the...