Williams v. Hodges
Opinion
Defendants in error bargained with Mrs.
Williams, tbe plaintiff in error, to sell to her certain premises in Detroit, and united with her in the execution of a written contract, a copy of which is given in the margin.
If we look no further into the facts that this — which would be the most favorable view to take for the vendors — we are at a loss to understand with what assurance they can insist upon retaining the judgment for possession which has been awarded to them. Conceding that [698]*698the two payments of $150 each made by the vendee in November are together to be regarded as constituting the $300 which was to be paid on the first day of December, and that the vendee was in default in not making the subsequent monthly payments, yet it seems equally clear that the vendors fell in default by not completing the house December 1st, and that they have been in default ever since. Now when they complain of a default, it is upon the assumption that they have themselves performed, and a showing to the contrary is fatal to their case.
But it is said on their behalf that payment of the $300 and the completion of the' house were to be simultaneous acts, and when the vendee made the payment and took possession without insisting on completion, she waived that requirement, and cannot now complain that the house was not finished as agreed. If payment in advance by one party could be a waiver of performance of an act to be done simultaneously by the other, then if the vendors had completed the house in advance, that on the same reasoning would have constituted a waiver of the right to the payment; a doctrine which the vendors, we must believe, would have been slow to apply to [699]*699themselves if they at the outset had been as prompt in performance as their vendee was. But the taking of possession was quite as .far, in our opinion, from constituting 'a waiver. The vendee on the first of December was entitled to two things: first, a completed house ready for her; and second, the possession of it. How can it be said that because she was allowed to take the one, she thereby waived the other? And if she waived it, was it a perpetual waiver, or only for a reasonable time? If for the latter only, it would seem that the reasonable time to do that for which only thirty-one days were stipulated for in the contract, ought to have expired at the end of the five months which were fully completed before these proceedings were instituted. It ought to require a very strong showing to satisfy a court or jury that a reasonable time was five times what the parties themselves had agreed upon.
But the vendee on the trial of the cause on appeal in the circuit court offered to show that it was understood between the parties that her taking possession should not affect the rights and liabilities of the parties under the contract. The plain import of this was that [700]*700the vendee was to lose no rights — in other words, to waive nothing — by going into possession. The circuit judge, we think, must have misunderstood this offer or he would have received the evidence. It was certainly proper for the purpose of excluding the very inference which defendants in error now insist we shall draw.
But the case of the vendors was fatally defective for another reason. If the vendee went into possession under a waiver of the right to a completion of the house, and when she had no legal right to take possession without such waiver, then this constituted a very important change in the contract, and the vendee while thus in possession would not have been holding under the conditions of the contract, but under the subsequent permission. She would therefore have been a tenant at will and entitled to three months’ notice to quit under the statute. Comp. L., § 4304. This notice was never given her.
As the defects in the case are such as no showing could overcome we shall reverse the judgment with costs of all the courts without awarding any new trial.
A contract, made the thirtieth day of October, one thousand [696]*696eight hundred and seventy-eight, between Henry C. and Charles C. Hodges, of Detroit, Michigan, of the first part, and Hattie Matilda Williams, of the same place, of the second part, witnesseth, as follows, to-wit:
I. The party of the first part, for themselves, their heirs, executors and administrators, agrees to sell to the party of the second part, ALL that certain piece or parcel of LAND, situate in the City of Detroit, County of Wayne, and State of Michigan, known and described as Lot numbered: Nineteen (19) of Hodges Brothers subdivision of out lots Nos. 98, 99, 102 and 103 of the Woodbridge farm, so called, according to the plat of said subdivision, recorded in the office of the Register of Deeds for Wayne County, in liber one of plats, at page 308, said lot being situated on the westerly side of Lincoln Avenue, between Button St. and Grand River Avenue, together with the dwelling situated thereon.
II. The party of the second part, for herself, her heirs, executors, administrators and assigns, agrees to pay to the party of the first part, for the said Lands, the SUM of six thousand dollars ($6,000), in the manner following, to-wit: Nine hundred dollars ($900) on delivery of this contract, and three hundred dollars on tailing possession of the building, when completed, on or before December 1st, 1878, and the remainder in seventy-two (72) equal monthly payments, at the office or place o.f business of the said party of the first part, or their assigns of sixty-six and 67-100 dollars ($66.67), the first installment to be dme and payable on the ■first day of December, 1878, and the balance in monthly installments, as above, on the first of each succeeding month, until paid, with lawful interest from the date hereof, at the rate of SEVEN per centum until due, and at the rate of TEN per centum thereafter, payable semi-annually on the first day of January and July in each year upon so much of the purchase money as remains unpaid, and that as part and further consideration of the sale as hereby made, the party of the second part shall enter said lot for taxation in her
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3 N.W. 189 (Williams v. Hodges) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.