Steadman v. Clemens, 43.

• Decision Date: 06 April 1948
• Docket Number: No. 43.,43.
• Citation: 32 N.W.2d 45,321 Mich. 54
• Parties: STEADMAN v. CLEMENS et al.
• Court: Michigan Supreme Court

321 Mich. 54

32 N.W.2d 45

STEADMAN

v.CLEMENS et al.

No. 43.

Supreme Court of Michigan.

April 6, 1948.

Appeal from Circuit Court, Wayne County; Hon. Sherman D. Callender judge.

Action in assumpsit by Marvin Steadman, assignee of Depositors Liquidation Corporation, against George R. Clemens, Clarence M. Clemens, and Levi Clemens, jointly and severally, to recover money claimed due under a contract. From judgment for the plaintiff, defendants appeal.

Reversed and no new trial granted.

Before the Entire Bench.

George F. Curran, of Detroit (Donald W. Grant, of Detroit, of counsel), for appellants.

Berger, Manason & Kayes, of Detroit, for appellee.

REID, Justice.

This is a suit in assumpsit begun by plaintiff as assignee of the rights of the Plymouth United Savings Bank to recover for moneys claimed to be due plaintiff under the terms of a written contract compromising a previous lawsuit brought by the bank against Levi Clemens and Isabella Clemens. Plaintiff had judgment. Defendants appeal.

The principal question for our determination is whether the mere beginning of condemnation proceedings, filing of lis pendens and impaneling of the jury, constituted a sale within the terms of the agreement providing that if a sale of certain property should occur within eight years after the date of the agreement one-half of the proceeds (within a specified limit) must we paid the bank.

In order to procure the discontinuance of the previous lawsuit mentioned above pending against them, Levi Clemens and wife, Isabella Clemens, two of the four defendants in the case at bar, on June 12, 1935 signed a compromise agreement which recited that they were indebted to the bank in the total sum of $12,147.54 and also that they owned about 60 acres of land in Livonia township, Wayne county, and that they agreed to pay $1,000 down on the execution of the agreement, and $4,200 in installments, with interest, within the next four years. In addition thereto, the other two defendants in the case at bar, George R. Clemens and Clarence M. Clemens, who were theretofore not liable for the payment of the debt, signed the agreement and thereby made themselves liable for the payment of the decreased sum totaling $5,200, in extinguishment of the original debt. The agreement also provided that if the defendants, ‘shall at any time within a period of eight (8) years from the date of this agreement sell the south twenty (20) acres of the above described real estate, or any part thereof, they will pay to the * * * [bank] 1/2 of any amount that may be realized from the sale of said 20 acres.’The agreement further provided that the obligation to pay half the sum realized on the sale of the 20 acres should not, added to the payments totaling $5,200, exceed $8,000.

Subsequent to the signing of the agreement, the assets of the bank were assigned to Depositors Liquidation Corporation, which in turn assigned the bank's interest in the agreement to plaintiff. The sum of $5,200 and interest thereon was duly paid.

No voluntary sale of the 20 acres was ever made.

George R. Clemens entered the United States military service in March, 1943, and at the time of the filing of the stipulation of facts in the lower court, May 13, 1947, was still in the service.

The statute of limiations is pleaded by defendants. The agreement provided that the parents, Levi and Isabella Clemens, could deed to their two sons, George and Clarence, without paying the bank any part of the proceeds of a sale if made, but the two sons, if they received title by deed from their parents, evidently were then bound in case of a sale to carry out the agreement for payment of part of the proceeds. The record does not show that either George or Clarence ever received title. The absence of George R. Clemens in military service did not prevent his parents, the owners of the 20 acres, from selling at any time during the eight year period. Such sale by the parents, if made, would have been voluntary on their part. The agreement gave the bank no right to force Levi and Isabella Clemens to sell to anybody. The statute of limiations has no applicability; the eight year period is a limitation by agreement and not by statute. The theory advanced by plaintiff that the statute of limitations would be tolled by reason of absence of George R. Clemens is untenable. We do not say that even if George had an interest in the title, the statute of limitations could be considered to have applied.

A stipulation of facts filed by the parties in the lower court among other...