DocketNumber: Docket No. 72
Citation Numbers: 206 Mich. 571
Judges: Bird, Brooke, Kuhn, Moore, Ostrander, Steere, Stone
Filed Date: 7/17/1919
Status: Precedential
Modified Date: 9/8/2022
In the year 1916 plaintiffs resided on a small farm which they owned in Milford township, Oakland county. In August of that year plaintiff, William H. Neuschafer, purchased from defendant, David G. Rockwell, a Wilson motor truck for $2,600 upon the following terms: $750 down payment and the balance, $1,850, in 12 equal monthly installments, the same to be evidenced by promissory notes. William fell behind in his payments and defendant went to the farm to learn the cause of it. He found him willing but unable to pay. William offered to turn the truck back but defendant encouraged him to go forward with his payments. While there, defendant had some talk with plaintiffs about purchasing their farm, and the sale of another truck to Jacob. Following this, further negotiations were had and finally an oral agreement was reached, then a written agreement was made and subsequently this was twice amended so that when they had finished their negotiations they had an agreement, in substance as follows: Defendant was to purchase the farm and certain personal property thereon for a consideration of $5,125, subject to certain mortgages which he agreed to assume. From the balance of the consideration, after deducting the amount of the mortgages, the down payment of $750 on the motor truck to be delivered to Jacob was to be deducted, also any future payments which might be due and unpaid on either of the trucks. In pursuance of this agreement, and the request of defendant, the conveyance of the farm was made and delivered to Beatrice Rockwell, the wife of defendant. At the time of the transfer they found due plaintiffs the sum of $2,595. It was agreed this should be paid, $1,650 in cash, and a note for $945, payable in one year. The $1,650 to be'paid in cash was paid by crediting $750, the down payment on the motor truck to
At the hearing counsel agreed upon $791.29 as the sum due plaintiffs. This did not include the $750 down payment on Jacob’s truck. The real and sole controversy was whether plaintiffs should recover the $750 which had been paid on Jacob’s motor truck. The chancellor was of the opinion that plaintiffs were not entitled to recover this item. A decree was made finding $735.04 due plaintiffs, and making the amount a lien on the farm and ordering a sale in default of payment within 10 days. The decree contained other provisions, but as they are not appealed from and are not material here, no mention need be made of them. From this decree plaintiffs have appealed.
Plaintiffs’ contention is that they allowed defendant a credit of $750 on the consideration of the farm for the down payment on the motor truck to be delivered to Jacob, and that he was to purchase it on the same terms that had been theretofore accorded to William. That Jacob repeatedly demanded the truck, but it was never delivered to him, and, therefore, the payment should be returned to them and added to the balance which the chancellor found due them in the decree. Defendant takes the position that Jacob never fixed the. time when he wished the truck delivered, and fur
We think the testimony establishes beyond question the fact that defendants sold a motor truck to Jacob for $2,600, with terms of payment the same as those in William’s agreement, namely, $750 down, the balance payable in 12 equal monthly payments. In pursuance of this agreement the $750 was paid by allowing defendant a credit therefor on the consideration of the farm. It is conceded that Jacob never got the truck. The testimony on the question as to whose fault it was that the truck was never delivered is very much in conflict.
After a careful reading of the testimony we have no difficulty in reaching the conclusion that it was not Jacob’s fault but was the defendant’s. Jacob had made the initial payment on the truck and had nothing more to pay until a month after delivery. He desired the truck tó enable him to earn a living, and no reason appears why he should refuse to accept it. But defendant says the Wilson Company would not accept Jacob’s notes, and as Jacob could not pay the balance of the purchase price in cash the truck could not be delivered. This is no legal excuse for defendant’s failure to deliver the truck. Plaintiffs were dealing with defendant and not with the Wilson Company. Defendant was dealing with plaintiffs on his own account, he had purchased a farm of them, and in so doing he agreed to furnish a motor truck to Jacob on the same terms as were given to William. The mood that the Wilson Company might be in as to the ac
We are not impressed that defendant’s dealings with plaintiffs were as fair and frank as they should have been. Plaintiffs are without education and are woefully ignorant of businéss or business methods. They had no counsel. Defendant was aided throughout by counsel. The testimony is persuasive that defendant was bent on getting his commission without earning it. This is shown by the refusal of defendant to sign a receipt that he had received $750 on the Wilson motor truck, so that Jacob could sell his right therein to some one whose notes were acceptable, or who had the cash.
Our conclusion is that plaintiffs should be reimbursed for the $750 paid on the truck, together with interest at 5% from the date of the credit, and that this amount should be added to the amount stipulated