215 N.W. 355 | Mich. | 1927
The plaintiff, at the time of the commencement of this suit, owned the vendees' interest in *358 two land contracts, each for the sale of a lot in what is called Ecorse Manor subdivision in Ecorse township, Wayne county. The contracts were made in 1918, and had come down to him through several assignments. Defendant Wark-Gilbert Company, a Michigan corporation, was the record title owner of the lots and assignee of the vendor's interest in the contracts, subject to a trust mortgage to the Union Trust Company.
The bill was filed to compel the Wark-Gilbert Company to specifically perform the contracts by deeding the lots to plaintiff after he had tendered the unpaid balance thereon.
The trial court found that defendant was not in position to specifically perform, and awarded plaintiff damages for breach of contract in lieu thereof.
Both plaintiff and defendant Wark-Gilbert Company have appealed, but we take from their briefs that neither is dissatisfied with the conclusion of the court that the defendant had sold the lots and could not specifically perform. They state their claims as follows:
Plaintiff says:
"We find no fault with the decree filed and entered in this case, except as to the amount decreed to be paid by the defendant to the plaintiff. We believe that instead of the amount being $1,200, as is provided for in the decree, it should be $1,685.14, together with interest from May 13, 1924, and the claim of appeal was filed in behalf of the plaintiff for the purpose of modifying the decree in that respect."
Defendant says:
"Our sole argument is that plaintiff in this case should have been required to start an action in law to recover the value of the lots inasmuch as the trial judge found that the defendant Wark-Gilbert Company was unable to comply with a decree for specific performance, and in support of our theory, we refer to 36 Cyc. P. 747." *359
To sustain defendant's position, it relies uponRobinson v. Campbell,
A decree may therefore be entered providing for the payment to plaintiff by defendant Wark-Gilbert Company of such sum as damages for the breach of the land contracts. The bill will be dismissed as to defendants J. Thompson Miller and the Union Trust Company. Plaintiff will recover costs against defendant Wark-Gilbert Company.
SHARPE, C.J., and BIRD, STEERE, FELLOWS, WIEST, CLARK, and McDONALD, JJ., concurred. *360