Singer v. Hoffman Cake Co.
| Decision Date | 04 October 1937 |
| Docket Number | No. 40.,40. |
| Citation | 281 Mich. 371,275 N.W. 177 |
| Parties | SINGER et ux. v. HOFFMAN CAKE CO. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Action by Martin J. Singer and wife against the Hoffman Cake Company. From a judgment for plaintiffs, defendant appeals.
Affirmed.
Appeal from Circuit Court, Wayne County; Victor D. Sprague, Judge.
Argued before the Entire Bench.
Charles L. Goldstein, of Detroit, for appellant.
Wilkinson, Lowther & O'Connell, of Detroit, for appellees.
On December 8, 1926, plaintiffs sold to defendants on executory contract the building, land, and personal property used in their baking business in Detroit for the sum of $46,500, of which $5,000 was paid in cash and an additional $5,000 by conveyance of other property. The balance was payable at the rate of $365 per month, including interest, with an additional sum of $1,000 each and every year from the date of the contract. The contract stated that, if the purchaser failed to pay the taxes, the sellers might pay them and add the sums so paid to the amount due on the contract, said sums to be payable with interest forthwith. It provided for termination and repossession by the sellers in case of default in payments by purchaser, that, upon payment of all sums chargeable in sellers' favor, they would deed the property to purchaser free from all incumbrances except such as accrued subsequent to the execution of the contract through the acts or omissions of the purchaser or its assigns. It further contained a clause that set forth the conditions under which the sellers might place a new mortgage on the property. It also provided that, if the title to the property were incumbered by an already existing mortgage, the sellers would meet the payments of principal and interest, show the receipts to the purchaser on demand, and, in default thereof, the latter could make such payments and be credited for such amounts and interest on the sums maturing under the contract.
Defendant made the monthly payments of $365 with regularity until February, 1931, then it only paid $200 per month for several years, and then only $150 a month until November 6, 1935. From that time on, it made no further payments. Except as the end of the first year and during the second year, when it only paid a part of the amount, defendant totally failed to pay the additional sum of $1,000 at the end of each year of the contract, as provided therein. Some $8,250 was due for these additional annual payments at the time of the trial.
Within a month prior to the execution of the contract plaintiffs mortgaged the property to a Detroit bank for a loan of $10,000, payable in three years. Defendant learned of the mortgage within a comparatively short time and at least within the first year after the contract. It could have made payments on the mortgage instead of on the contract in accordance with the latter's terms. Plaintiffs for years promptly paid the interest and a payment or payments on the principal on the mortgage so as to reduce it to $8,211.93. Long after defendant's default in making the $1,000 payments, plaintiffs made no further payments. Defendant was in default in making the $1,000 payments prior to the time the mortgage became due. The bank was evidently willing to carry the loan. The receiver of the bank to which the mortgage had been assigned began foreclosure proceedings by advertisement, and, although the record does not show when the first advertisement appeared, the sheriff's deed, as stated in defendant's brief, was issued on June 30, 1936, when, with costs, approximately $8,555.72 was due on the mortgage and over $20,000 still remained unpaid on the contract. The receiver, as stated by a witness for defendant, was willing to let the mortgage run, provided the taxes on the property and $100 per month on the mortgage were paid. It was incumbent on the purchaser to pay the taxes, though the remedy in case of its default was not the same as in the default of payments on principal and interest. Defendant claims that the plaintiff Martin Singer orally agreed to reduce the payments to $200 a month, and accepted payments of only $150 per month. Defendant does not show that there was any extension of time as to the $1,000 a year payments. Mere forbearance does not of itself constitute a waiver. The trial judge, on appeal by defendant from a judgment of restitution by circuit court commissioner, directed a verdict in plaint...
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Lincoln County v. Fischer
...the above effect. In fact, as intimated in the Gray case, the vendor must be vigilant in enforcing his rights. While Singer v. Hoffman Cake Co., 281 Mich. 371, 275 N.W. 177, holds that mere forbearance to sue for late payments is not a waiver; a notice of intent to forfeit and a notice of f......
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Coburn v. Coburn
...are not properly part of the record on appeal. Dora v. Lesinski, 351 Mich. 579, 581, 88 N.W.2d 592 (1958); Singer v. Hoffman Cake Co., 281 Mich. 371, 375, 275 N.W. 177 (1937). 4. Facts not appearing from the record cannot be considered on appeal. Associates Discount Corp. v. Gear, 334 Mich.......
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Caro Trans Opportunities LLC v. Mobile Med. Response, Inc.
...our Supreme Court has firmly rejected such a notion: "Mere forbearance does not of itself constitute a waiver." Singer v Hoffman Cake Co, 281 Mich 371, 374; 275 NW 177 (1937). 2. Both parties demanded a jury trial. 3. The majority mentions without further elucidation that both parties reque......