Stimac v. Wissman

• Decision Date: 09 March 1955
• Docket Number: No. 18,18
• Citation: 69 N.W.2d 151,342 Mich. 20
• Parties: Michael STIMAC and Lois Stimac, husband and wife, Plaintiffs-Appellees, v. Hubert WISSMAN and Clara Wissman, husband and wife, Defendants-Appellants.
• Court: Michigan Supreme Court

Page 151

69 N.W.2d 151

342 Mich. 20

Michael STIMAC and Lois Stimac, husband and wife, Plaintiffs-Appellees, v. Hubert WISSMAN and Clara Wissman, husband and wife Defendants-Appellants.

No. 18.

Supreme Court of Michigan.

March 9, 1955.

Meyer Warshawsky, South Haven, for plaintiffs-appellees.

William J. Hover, South Haven, for defendants-appellants.

Before the Entire Bench.

SMITH, Justice.

The defendants, Hubert Wissman and Clara Wissman, husband and wife, owned real property located on highway US-31 near the city of South Haven, Michigan. Upon this property they constructed a building equipped with plumbing facilities and toilet rooms for use as a drive-in restaurant. To serve its intended purpose it was necessary that the project have water. None was municipally furnished to the property. The defendants accordingly ran a pipe into the building grom an adjacent property upon which there was a producing well in operation. The adjacent property was owned by defendant Clara Wissman, subject to a life estate in her mother and father, the Hansens, Anton and Marie.

The plaintiffs, Michael Stimac and Lois Stimac, husband and wife, leased the property from the defendants for a term of 10 years. The lease stated that the property was 'to be occupied for restaurant and lunch stand purposes and all purposes incidental thereto.' Rental was at a stipulated sum, or a percentage of the net profits, whichever might be greater. The instrument was completely silent as to water, its supply, its use, or payment therefor. The facilities, however, could not have been used for their intended purpose without water and it is significant that water was furnished to the premises from the defendants' well at the time plaintiffs commenced their business operations, May 12, 1949, and at the date of the actual execution of the lease, May 18th. There was also some testimony that defendant Hubert Wissman had informed plaintiff Michael Stimac subsequent to the entry upon the lease that the water supply was sufficient for the business. Difficulties between the parties developed in a short time and were not ameliorated with the passage of time. They ranged a broad field, embracing ultimately matters of accounting for the profits, together with allegations of nonpayment of rent, as well as other complaints. We have considered them all, together with the explanations offered therefor, and we will relate only such of those as are necessary to an understanding of the issues on appeal.

Defendant Wissman's control of the water supply invested him with a ready means of persuasion of his tenants, a means he did not hesitate to employ. The water was turned off twice in the summer of 1949, the defendants thereby seeking, in the words of the trial court, 'to bring their differences to a settlement.' The building was closed for the winter at the end of the 1949 season. Plaintiffs testified that they intended to open the restaurant in the spring of 1950, but he matter was then in litigation, differences having persisted between the parties concerning interpretation of the lease and matters of accounting. Decree in such case was entered on June 22, 1950, and plaintiffs took immediate steps to reopen their restaurant. They were again faced with a lack of water.

After demand therefor had been made and refused, plaintiffs employed a well driller to drill for water on the property. The defendants reacted with some violence to this move on the part of the tenants, the trial court noting that 'they endeavored by language and threats to induce the well drillers to leave.' After some delay, however, the well was completed and the restaurant finally opened for business on August 5, 1950.

It would serve no useful purpose to relate in greater detail the various measures and stratagems employed by the disputants. Enough has been said to indicate the general atmosphere in which the parties sought to resolve their differences. Plaintiffs brought a bill in equity praying injunctive relief against defendants' interference with plaintiffs' business, for assessment of damages, and for other relief. Defendants denied necessity for relief prayed and filed a cross-bill for cancellation of the lease, with incidental relief. The trial court, after hearing, denied the cross-bill, granted injunctive relief, ordered plaintiffs' payment of certain rent moneys, assessed damages in the sum of $940, and granted other relief. Defendants have appealed.

The appellants insist that they were not required by their agreement with plaintiffs to furnish water and that, since the lease did not present words of ambiguity with respect to water, but rather complete silence, parol could not be heard on the alleged duty to supply. They also object to the computation of damages involved.

The primary issue relates to the alleged duty to furnish water to the plaintiffs, and we will examine such issue in some detail. The lease, as noted above, was completely silent on the point. Is parol admissible with respect thereto?

The narrow issue presented is but a facet of a much broader principle relating to the use of parol. There is no doubt, as Wigmore phrases it (9 Wigmore, Evidence, [3d ed.] § 2430) that:

'The most usual controversy arises in cases of partial integration, i. e., where a certain part of a transaction has been embodied in a single writing, but another part has been left in some other form. Here obviously the rule against disputing the terms of the document will be applicable to so much of the transaction as is so embodied, but not to the remainder.'

The inquiry to undertaken, then, must relate to whether or not the writing was intended to cover a certain subject. As to this the learned author states that (the instrument being completely silent on the subject) the intent will be sought in the conduct and language of the parties and the surrounding circumstances.

In accordance with this rule our Court has permitted the use of parol in a variety of situations. Thus in Clare County Savings Bank v. Featherly, 173 Mich. 292, 302, 139 N.W. 61, 65, in a case involving a promissory note, the Court quotes with approval from 21 Am. & Eng.Enc.Law (2d ed.), p. 1094, as follows:

"Again the parties to a written agreement, which is complete in itself, may at the time of its execution, or previously, have entered into a collateral parol agreement concerning some matter on which the written instrument is silent, and the rule does not preclude the proof of such collateral agreement, provided no attempt is made to vary or contradict the writing. Any independent fact or...