Williams v. Michigan Cent. R. Co.

• Decision Date: 23 June 1903
• Citation: 95 N.W. 708,133 Mich. 448
• Court: Michigan Supreme Court
• Parties: WILLIAMS et al. v. MICHIGAN CENT. R. CO.

95 N.W. 708

133 Mich. 448

WILLIAMS et al. v. MICHIGAN CENT. R. CO.

Supreme Court of Michigan

June 23, 1903

Error to Circuit Court, Wayne County; George S. Hosmer, Judge.

Action by John R. Williams and others against the Michigan Central Railroad Company. Judgment for plaintiffs. Defendant brings error. Reversed.

Henry Russel and Wells, Angell, Boynton & McMillan (Ashley Pond, of counsel), for appellant.

William J. Gray and Robert T. Gray, for appellees.

HOOKER C.J.

Plaintiffs being owners of a business block in Detroit comprising 10 or 12 stores upon the first floor, and a corresponding area devoted to offices on other floors, leased said block, on April 30, 1894, to Friend Palmer, for a period of 40 years, at an annual rental of $16,000. On April 1, 1897, Friend Palmer leased one of the stores to the Michigan Central Railroad Company, the defendant, for the period of one year, at an annual rental of $3,000, with an option to the defendant for the renewal of the lease for the further period of one year, and on April 1, 1898, it wrote Mr. Palmer a letter electing to renew the lease for a year. On December 27, 1898, Friend Palmer was indebted to the plaintiffs on his lease in the sum of $9,500, and upon that day they filed a complaint with the circuit court commissioner to recover the possession of the block. A summons was served upon Palmer, on December 28th. On December 31st the case was adjourned, and on January 3, 1899, a judgment of restitution was rendered by the commissioner.

The defendant vacated the store in the month of December, 1898 and on January 11, 1898, it wrote to plaintiffs' solicitors as follows, viz.: 'Gentlemen: Referring to the room in the Merrill Block, so called, in this city, which this company lately occupied for a ticket office under contract with Friend Palmer. I am informed that Friend Palmer's right of possession to said office was terminated by the judgment which your clients, the said John R. Williams et al., recovered against him on the 3d inst before William A. Hurst, circuit court commissioner. That being the case, and as the rights of this company in said room as subtenant of said Palmer were necessarily terminated by such judgement, this is to advise you that this company has already vacated said premises, and that no proceedings on behalf of your clients to recover possession of said premises will be necessary so far as this company is concerned.' On the same day it wrote to Thomas W. Palmer, who claimed the rent due from it to Friend Palmer, as follows, viz 'Hon. Thomas W. Palmer--Dear Sir: Referring to the bill presented by you to this company for $250 rent of office in the Merrill Block, this city, for January, 1899, as per terms of lease from Friend Palmer to this company, dated April 1, 1897, I am informed that Friend Palmer's right of possession to said office, and all other right, title, and interest of said Friend Palmer therein, ceased on the 3d inst.; the same having been terminated and ended by a judgment of William A. Hurst, one of the circuit court commissioners for the county of Wayne, of that date, in favor of John R. Williams et al., and against the said Friend Palmer, and that such judgment also terminated all rights which this company, as subtenant of said Friend Palmer, had at that time in said office. That being the case, I am advised that all obligations on the part of this company to pay rent for said office after January 3, 1899, has ceased.' It sent a letter of like import to Friend Palmer on the same day.

The keys of the store were tendered to plaintiffs' attorneys on January 12, 1899, by defendant. The plaintiffs were entitled to have a writ of restitution issued against Friend Palmer on January 9, 1899. Whether the writ was issued or not is uncertain. At all events it was not served; Friend Palmer agreeing to surrender possession, as shown by the following letter, viz.: 'Friend Palmer and Hon. Thomas W. Palmer, City--Gentlemen: My clients being now entitled to a writ of restitution for the Merrill Block, so called, leased to Friend Palmer under date of April 30, 1894, it is arranged, in order to avoid actual execution of a writ of restitution, that possession shall be voluntarily surrendered to them, and accordingly you have given us an order for the collection of the rents from January 1st out. It is understood that this is without prejudice to either of us as to the rents prior to that date, and without prejudice to any claim that we may have against you or either of you in the premises. Yours truly, William J. Gray.'

On January 13, 1899, Friend Palmer executed the following assignment, viz.: 'I hereby assign and transfer to John R. Williams, G. Mott Williams, and Josepha W. Douglas all my right, title, and interest in and to a certain lease made by me to the Michigan Central Railroad Company for store room, northeast corner of Jefferson and Woodward avenues, Detroit, Michigan, and in and to all moneys now due or hereafter to become due. Lease attached hereto. [Signed]Friend Palmer.' No consideration was paid, nor was any credit given to Friend Palmer on the plaintiffs' claim, for this assignment.

Plaintiffs' counsel declined to receive the keys, when tendered by the defendant; but later, and on February 1, 1899, they consented to receive them, without prejudice to the rights of either party, and with the understanding that counsel, as the agents of the owners, should take charge of and rent the property, if possible, and whatever should be received during the period of defendant's lease should be credited to it upon its rent, if it should be afterwards held that any rent was collectible under that lease. on March 15th, plaintiffs were offered $60 a month for the eastern portion of the store, and $100 for the remainder. They began making repairs about March 15th, but did not get the store ready for occupancy until May 1st.

This action was brought against the defendant to recover rent due upon...