Stratton v. Jensen, Docket No. 21392

• Decision Date: 24 September 1975
• Docket Number: Docket No. 21392
• Parties: Alan W. STRATTON, Plaintiff, Cross-Appellant and Appellee, v. Frances L. JENSEN, Administrator w.w.a. of the Estate of Harold D. Schrier, Deceased, Party Defendant in place and stead of Harold D. Schrier, and Pearl Grange Fruit Exchange, Inc., a Michigan Corporation, Defendants, Cross-Appellees and Appellants. 64 Mich.App. 602, 236 N.W.2d 527
• Court: Court of Appeal of Michigan — District of US

Page 527

236 N.W.2d 527

Alan W. STRATTON, Plaintiff, Cross-Appellant and Appellee, v. Frances L. JENSEN, Administrator w.w.a. of the Estate of

Harold D. Schrier, Deceased, Party Defendant in place and

stead of Harold D. Schrier, and Pearl Grange Fruit Exchange,

Inc., a Michigan Corporation, Defendants, Cross-Appellees

and Appellants.

Docket No. 21392.

64 Mich.App. 602, 236 N.W.2d 527

Court of Appeals of Michigan.

Sept. 24, 1975.

Released for Publication Dec. 24, 1975.

[64 MICHAPP 603] Jacob A. Dalm, Jr., Kalamazoo, for appellant.

Garvey, Kreis & Silverman by Alan H. Silverman, Kalamazoo, for appellees.

Before McGREGOR, P.J., and D. E. HOLBROOK and KAUFMAN, JJ.

PER CURIAM.

This case began as an attempt by the parties to contract for the sale of plaintiff's business to defendants. This attempt produced a written and several oral agreements which the parties executed without advice from an attorney. The subsequent dispute, however, involved numerous attorneys, protracted litigation, an involved opinion and a multi-faceted appeal.

Prior to August, 1972, plaintiff, as a sole proprietor, owned and operated Stratton Plastic Processors. Defendant Harold Schrier was the sole shareholder,[64 MICHAPP 604] president and director of defendant Pearl Grange Fruit Exchange, Inc. (Pearl Grange). During the pendency of this appeal, Schrier died and defendant Jensen was appointed administratrix of his estate and was substituted as a party to this appeal.

On August 9, 1972, plaintiff and Schrier executed a written document entitled 'Equipment Agreement'. The parties to the agreement were plaintiff and P & G Plastics, a division of Pearl Grange that was being created to enter into the plastics business. Prior to the purchase, Pearl Grange was not involved in the plastics field. Under the terms of this agreement, P & G Plastics agreed to purchase plaintiff's 'equipment, their parts as listed, customers and technology * * * for the sum of $78,000'. The purchase price was made payable by defendants' assumption of two mortgages owed by plaintiff, one for $31,892 held by the Park Forest Bank of Illinois and the other in the amount of $3,447 held by the Bank of Blue Island, plus a twelve-month note for the difference between the purchase price and mortgage assumptions. Plaintiff claimed, and defendants denied, that the parties also entered into an oral employment agreement whereby plaintiff was given authority to make purchases on behalf of Pearl Grange.

On September 1, 1972, plaintiff began delivery of his equipment to a building owned by deefndants. At that time, defendant Schrier expressed dissatisfaction with it. Schrier claimed at trial that he instructed plaintiff to take it back. Nonetheless, the equipment was installed by defendants' employees and used by defendants. Defendant paid plaintiff $5,000 additionally to help defray the cost of moving the equipment. In addition to the equipment[64 MICHAPP 605] and parts, plaintiff delivered to Pearl Grange for storage a quantity of plastic material, which was being held for delivery to another firm, and a piece of machinery called a 'chipper'.

Subsequent to delivery of the equipment, defendants failed to execute the twelve-month note or to make payments on either of the mortgages as provided in the agreement. Instead, defendant Schrier purchased from the holder of the larger mortgage an assignment of its interest as secured creditor. Thus, when plaintiff did not pay the mortgage, Schrier took legal possession of the collateral, plaintiff's equipment, which he, in fact, already possessed.

Plaintiff sued for the balance of the purchase price, for wages claimed pursuant to the oral employment contract, for return of his inventory, for supplies allegedly purchased for defendants' benefit and for alleged damage to plaintiff's reputation and credit. Defendants counterclaimed alleging misrepresentation by plaintiff as to the value and condition of the equipment sold, loss of profits, loss of $20,000 because of plaintiff's use of defendants' storage space, alleged conversion of certain plastic by plaintiff, alleged damage to credit in being sued for debts owed by plaintiff and for loss of business alleged to have been caused by plaintiff.

After a non-jury trial, in a well-written and concise opinion, covering all questions, the Kalamazoo County Circuit Court directed defendants to hold the plaintiff harmless on any remaining indebtedness on the two mortgages. The court awarded to plaintiff damages in the amount of $44,353.90 with interest, representing the difference between the mortgages purchased by defendant Schrier and the $78,000 purchase price contained[64 MICHAPP 606] in the equipment agreement. Judgment was further entered against defendants for $3,150.24 for additional expenses of the plaintiff in moving the equipment. Judgment was denied plaintiff for any salaries or commissions, but judgment in the amount of $438.83 was granted to plaintiff for expenses. The court ordered defendants to pay certain invoices for supplies and to deliver to plaintiff the inventory owned by plaintiff and held by defendants, or, in lieu thereof, to pay damages not to exceed $16,000.

Judgment was further granted in the amount of $750, determined by the court to be the value of $30,000 pounds of plaintiff's plastic which the court found defendants had sold. The court also required defendants to pay in the amount of $542.85 for plastics sold by plaintiff to another company, Poly-Mar Plastics. Defendants were also ordered to deliver the chipper to plaintiff, or in the alternative to pay the sum of $2,800. Judgment was further granted to plaintiff for the sum of $685.88 for supplies belonging to plaintiff and delivered to defendants.

Defendant appealed and plaintiff filed a cross-appeal. On appeal, defendants raise nine claims of error. Of these, all but two challenge the trial court's findings of fact. In such cases, an appellate court will give great weight to the trial court's findings and will not substitute its judgment unless the findings were contrary to the great weight of the evidence and thus 'clearly erroneous'. GCR 1963, 517.1, Goodwin, Inc. v. Orson E. Coe Pontiac, Inc., 392 Mich. 195, 220 N.W.2d 664 (1974), Kurrle v. Walker, 56 Mich.App. 406, 224 N.W.2d 99 (1974). Having reviewed the record, we hold that the challenged findings were supported by the evidence presented.

[64 MICHAPP 607] In addition, defendants contend that the trial court erred by making an award to plaintiff in compensation for some of plaintiff's plastic which defendants had sold despite the fact that plaintiff used an illegal self-help remedy and converted some of defendants' plastic to his own use.

According to the evidence, 10,340 lbs. of plaintiff's...