159 Mich. 160 | Mich. | 1909
This is an action of debt to recover an amount claimed to be due upon a land contract entered into between Martha F. Stewart and the three de
This action was commenced just one day less than 10 years from the time the contract became due. In the court below the plaintiff claimed the sum of $13,303.12, being the entire amount due upon the contract, with interest thereon, and taxes paid. No tender of a deed was made to the defendants, and there was no direct proof that the plaintiff was in a position to tender a deed. The circuit judge was of the opinion that, under these circumstances, the plaintiff had not shown a right to recover, and directed a verdict for the defendants, basing his verdict upon the case of Stewart v. McLaughlin’s Estate, 126 Mich. 1 (85 N. W. 266, 87 N. W. 218). The court stated:
“ The plaintiff’s claim was that the measure of damages was the whole amount due under the contract price, plus interest and taxes. No testimony was offered at the trial tending to show the value of the land to the vendor at the time the contract was broken.”
The court held that the proper measure of damages would be the difference between the amount reserved in the contract and the value of the land at the time the contract was broken, and that, as there was no evidence on this point, the plaintiff could not recover. In this court
It is also claimed that the plaintiff should in any event be entitled to recover the amount paid for taxes. It was not claimed in the court below, so far as the record shows, that a recovery for these payments as distinct payments could be had; but we think a further answer to this claim is that, as to the taxes paid prior to maturity of the contract, the statute of limitations is pleaded and would be a complete answer to an action to recover for these separate items. The provision of the contract is that, upon failure of the purchaser to pay the taxes and insurance, the same may be added to the amount due on the contract payable forthwith, with interest at the rate of 8 per cent, per annum, and shall be treated as a part of the money payable under the contract. It is manifest that on the 18th of April, 1897, this contract matured, and all sums whatever unpaid which constituted a part of the contract price were due. The rights of the parties were then fixed. The plaintiff or his assignor were entitled to maintain an action in debt upon condition that a tender of conveyance should be made. So, when this action was brought, there was no obligation to pay any particular sum of money under a covenant which was independent of the obligation of the plaintiff to convey. The fact that some of the consideration consisted of taxes paid by the plaintiff or his assignor in no way affects this question. The amount so paid became a part of the purchase price or money payable under the contract. The plaintiff had the right to demand payment of all on this condition. By the express terms of the contract, the money paid by him for taxes became a part of the contract price. He sues in debt. He could hardly be permitted to recover piecemeal when all was due. The condition upon which he could recover what was due was, under the authority of Stewart v. Mc
The judgment is affirmed.
