Van Dellen v. Castetter, 67.

• Decision Date: 06 March 1934
• Docket Number: No. 67.,67.
• Citation: 265 Mich. 700,253 N.W. 191
• Parties: VAN DELLEN et al. v. CASTETTER et al.
• Court: Michigan Supreme Court

265 Mich. 700

253 N.W. 191

VAN DELLEN et al.

v.CASTETTER et al.

No. 67.

Supreme Court of Michigan.

March 6, 1934.

Error to Circuit Court, Kent County; William B. Brown, Judge.

Suit by Richard Van Dellen and another against Ralph H. Castetter and others. From an adverse decree, plaintiffs appeal.

Remanded, with directions.

Argued before the Entire Bench.

Steketee & Steketee, of Grand Rapids, for appellants.

Linsey, Shivel & Phelps, of Grand Rapids, for appellees Lee H. and John A. Higgins and Thomas E. Walsh.

BUTZEL, Justice.

On April 16, 1929, Richard Van Dellen and wife, plaintiffs, sold land, buildings, and machinery in Grand Rapids, Mich., to Ralph H. Castetter and wife, on executory contract. On May 11, 1929, the latter assigned their vendee's interest to William S. Smith by written assignment containing a covenant binding Smith to the fulfillment of all the conditions of the contract. The assignment was on a printed form and signed by Castetter and wife, but not by Smith. On June 13, 1929, Smith in turn assigned the contract to Lee H. Higgins and John A. Higgins. A similar form of assignment was used, containing a covenant binding the assignee ‘to fulfill all the conditions set forth in the annexed instrument.’ It was signed by Smith, but not by Lee H. or John A. Higgins. On August 14, 1929, the latter assigned on a similar form, containing the covenant of assumption, to Thomas E. Walsh. Again the instrument was only signed by the assignors.

After continued default in payments, plaintiffs brought suit against the original vendee and all of the successive assignees, asking decree for foreclosure and also payment of any deficiency against all the defendants. Castetter and wife and Smith permitted their defaults to be taken, but Lee H. Higgins, John A. Higgins, and Thomas E. Walsh, appellees, filed answers denying liability for the deficiency. The trial court thereupon granted foreclosure, but discharged appellees from liability for the deficiency. He held that they had not seen, read, or heard read, or signed the printed form of assignment binding them to the performance of the covenants of the contract, and that there was no intention shown on their part to be personally bound thereby. Plaintiffs appeal from this latter portion of the decree.

It is the contention of appellees that they did not sign the assignments, did not have them recorded, and did not know or believe that they were binding themselves personally to the contract, and, further, that they performed no affirmative act or acts indicating any intention to be so bound. John A. Higgins testified that he and his brother bought the contract for trading purposes, expecting to hold it only for a short time and then to trade it off. On the other hand, there is no question but that the Higgins brothers and Walsh received and accepted the assignments in the form in which they were made out. John A. Higgins collected two installments of rent from the tenant, one Carlson, and later he and his brother must have relied upon their assignments to establish their right in turn to assign to Walsh. The latter collected the rent from Carlson, the tenant of the property, for almost three years. In 1931, when defaults were made in payment of taxes, and Van Dellen sought...