Younger v. Caroselli

• Decision Date: 03 October 1930
• Docket Number: No. 116.,116.
• Citation: 232 N.W. 378,251 Mich. 533
• Parties: YOUNGER et ux. v. CAROSELLI et ux.
• Court: Michigan Supreme Court

251 Mich. 533

232 N.W. 378

YOUNGER et ux.

v.CAROSELLI et ux.

No. 116.

Supreme Court of Michigan.

Oct. 3, 1930.

Appeal from Circuit Court, Wayne County, in Chancery; Parm C. Gilbert, Judge.

Suit by George W. Younger and wife against Alfred L. Caroselli and wife, in which defendants filed a cross-bill.From a decree for defendants, plaintiffs appeal.

Affirmed.

Argued before the Entire Bench.Campbell, Bulkley & Ledyard, of Detroit (Harold R. Smith and Augustus C. Ledyard, both of Detroit, of counsel), for appellants.

Anthony Maiullo, of Detroit, for appellees.

BUTZEL, J.

Alfred L. Caroselli, an interior decorator and also a music teacher, desired to have a house and garage built for himself and his wife, Lillian, the defendants, cross-plaintiffs, and appellees in this case.He had purchased on land contract lot numbered 193 of the East Detroit DevelopmentSubdivision No. 2.George W. Younger, a building contractor of over thirty years' experience, and his wife are the plaintiffs, cross-defendants, and appellants herein.Among the very large number of houses with garages he had erected in the city of Detroit, there was one almost opposite lot No. 193 that attracted Caroselli's attention.He desired a similar one built upon his lot.The house and garage were typical of many that had been built by Younger according to what is referred to as a ‘stock’ plan.Caroselli sought out Younger who arranged to build such a house with a garage with certain changes.The lot was 40 feet in width.The house was to be 30 feet wide. plus a bay extending another foot, thus making the total width 31 feet.According to the building restrictions with which Younger was acquainted, it was necessary to build at least 3 feet distant from the south line of the lot.This left 6 feet on the north side of the lot for the driveway to the garage.The plan, specifications, and contract all were drawn be Younger or his assistant.Two of the provisions of the specifications are as follows:

‘Survey.The lot line shall be laid out by a surveyor who will be employed and whose fees shall be paid by the general contractor.

‘Staked out.Contractor shall do his own staking out of both house and garage.'

Caroselli and his wife had been purchasing the lot on contract for the sum of $1,775.They had paid on the contract $1,108, plus some interest and taxes.They still owed $667.91, which sum was paid by Younger after the transfer of the contract to him, this balance due being added to the amount that Caroselli was to pay.A land contract was executed by Younger and wife as vendors to Caroselli and wife as vendees.For reasons unexplained, the vendees were given credit for unexplained, the vendees were given credit for monthly installments an amount equal to an agreed price for the house and garage, plus the balance that Younger paid on the contract assigned to him in order to obtain the deed.Caroselli, being an interior decorator, was to do the painting and was also to furnish some other items for the house, credit for all of which was reflected in the lowering of the purchase price of the house.

It is evident that insufficient consideration was given to the dimensions of the house, garage, and particularly to the driveway leading from the street to the garage, as well as that adjoining the garage.The very fact that the plan itself, as submitted to the city for a building permit, called for a house of 31 feet in width without the bay, when, as a matter of fact, it was only 30 feet wide, would indicate that little attention was paid to some important details.There was some question as to the location of the bay window, and, at Caroselli's request, it was built on the south side of the house on account of the more favorable exposure it would thus have.There was also some further discussion as to the position of the garage, and there is a dispute in the testimony as to who was responsible for locating the garage so that there was not sufficient room left between the house and garage, with the result that it became impossible to use the more northerly door of the garage for the ingress or egress of cars.Were this the only question, however, it is probable that no difficulties would have arisen.

Caroselli was frequently on the premises during the construction of the house and watched its progress.The testimony is in dispute as to whether Caroselli knew that the driveway was so extremely narrow that it could not be used.The house and garage were first completed, and then the concrete was laid for the driveway.When Carosselli did finally test the driveway, he found it was too narrow for use, except by a small-sized car.If the car were a large one or had large hub caps, it could not get in at all.If the car was narrow enough so as to be driven in, it could only be backed out, for there was not enough room to turn it around.The testimony leaves no doubt but that the driveway and also the garage, as far as the storage of automobiles is concerned, are of no value.Under the circumstances, the property would be more valuable with neither a driveway nor a garage situated upon it.Under his contract, Caroselli was entitled to a double garage with a driveway.He did not contract for a house without them.Younger virtually admits that the driveway is too narrow.He stated that he purchased the lot adjoining the south side of the premises in dispute, built a house, and on the sale thereof reserved an easement, so that, in the event that he was to retake and resell the Caroselli property, there would be sufficient room on the south side of the house to drive in to the garage.He offered at the hearing to turn over this easement to Caroselli without extra charge, but the latter stated that he wanted a driveway that would belong to himself alone and where he could park his car if he saw fit at any time.The easement provided that the driveway would have to be kept clear at all times.Although we are impressed with the fairness of Younger in making this offer, nevertheless, Caroselli was not obliged to accept it.He claims that he made no objection to the width of the driveway during the course of construction because he did not realize it was too narrow to be of any value because he believed that Younger, an experienced builder, was erecting a driveway and garage that would be usable.Younger claims that Caroselli tried out the driveway during the progress of the erection of the house, but at that time the driveway was not paved nor inclosed by the fence which the owner of the adjoining property subsequently built flush with the south side of the driveway.The owner of the house on the opposite side of the street, and after which the Caroselli house was patterned, testified that his driveway was being used, although only 6 feet in width, but it developed that there was no fence...