Law Commons^™

Residential Tenants And Their Leases: An Empirical Study, Warren Mueller

Michigan Law Review

Of particular interest is the application of this theory to residential leases, a classic example of the standard long-form contract. An abundance of traditional legal research and commentary has been devoted to the problem of disparity of bargaining power between the parties to a standard-form residential lease. The commentators have consistently called for reform measures to combat this problem. In order to adopt sensible and effective reform measures, however, it is first necessary to obtain factual data with which to test and clarify the reformers' underlying assumptions. Such data is virtually nonexistent, since, prior to the study described in this …

Courts-Validity Of Contracts Restricting Venue In Actions Under The Federal Employers' Liability Act, John C. Walker S. Ed.

Michigan Law Review

Petitioner suffered injuries in the course of his duties as an employee of respondent railroad. Subsequently, respondent advanced money to petitioner and the latter agreed in writing that if his claim could not be settled he would sue only in the county or district where he resided at the time of the injury, or in the county or district where the injury was sustained. This agreement restricted petitioner's choice of venue to either a state or federal court sitting in Michigan. Ignoring the contract, petitioner sued in an Illinois court. Respondent then brought suit in the Michigan courts to enjoin …

Quasi-Contracts-Landlord And Tenant-Recovery For Overpayment Of Rent In Violation Of Statute, William P. Sutter

Michigan Law Review

Plaintiff occupied a dwelling house from 1928 to 1945, paying $35 per month rent until September, 1941. In that month, defendant, his landlord, increased the rent to $75, which plaintiff paid until September, 1945. The property was registered with the Office of Price Administration at a maximum rental of $35, and this fact was known to plaintiff. Plaintiff's suit to recover the overpayment of $40 per month was dismissed. On appeal, held, affirmed. No statute specifically authorized restitution, and the illegality of the contract precludes restitution in absence of statute. Jones v. Chennault, (Mich. 1948) 35 N.W. (2d) …

Quasi-Contracts-Taxation-Rescission Of Gifts Where Gift Fails To Achieve Donor's Purpose Of Minimizing Federal Income Taxes, Charles M. Soller S.Ed., Edwin F. Uhl S. Ed.

Michigan Law Review

A recent Michigan case, Stone v. Stone, presents problems of complexity and far-reaching importance. The plaintiffs, husband and wife, each owned a one-half interest in a family business partnership, and each apparently reported a proportionate share of the partnership earnings for federal income tax purposes. For the purpose of further reducing taxes on the income of the family unit, each parent transferred a one-quarter interest in the partnership to one of their two minor children, and thereafter each parent and child filed separate income tax returns reporting one-fourth of the partnership earnings as individual income. Each parent, under a …

Joint Tenancy-Effect Of Word "Jointly"-Parol Evidence As To Intent

Michigan Law Review

The common law rule was well settled that a conveyance to two or more, not husband and wife, made them joint tenants, not tenants in common, unless language was used to show an intent that they were not to be joint tenants. The reason for such a rule having passed, the modern rule is to the opposite effect-two or more conveyees, with certain exceptions, are presumptively tenants in common. The Illinois statute, for example, declares that "no estate in joint tenancy in any lands ... shall be held or claimed under any grant . . . unless the premises therein …

Abstracts, Katherine Kempfer

Michigan Law Review

The abstracts consist merely of summaries of the facts and holdings of recent cases and are distinguished from the notes by the absence of discussion.

Contracts - Agency - Statute Of Frauds - Satisfaction Of The Statute Of Frauds By A Memorandum Signed By An Agent Acting For A Partially Disclosed Principal, Michigan Law Review

Michigan Law Review

Plaintiff engaged a Michigan corporation to negotiate the purchase for him of certain shares of stock. The corporation obtained the promise of defendant to sell the stock to the corporation as agent for an undisclosed principal. The corporation, acting as the agent for an undisclosed vendor (defendant), sent a written confirmation of the sale to the plaintiff and sent a similar memorandum to the defendant which was signed by the corporation as agent for an undisclosed vendee (plaintiff). The next day defendant notified the corporation that he refused to deliver the shares. Plaintiff brought a suit in equity for the …

Corporations - Preincorporation Contracts Of Promoters And Incorporators - Effect Of Statute On Personal Liability Of Incorporators, Roy L. Rogers

Michigan Law Review

It seems difficult to draw such a conclusion directly from the terms of the statute. Indeed, the section is not very definite as to the liability either of the incorporators or of the corporation on contracts of the designated class. However, in Hart Potato Growers' Association v. Grenier, it was intimated that this section made the corporation liable upon the contracts of the incorporators immediately upon incorporation. Toward this conclusion certain provisions of the section are rather persuasive. The clause providing that all property held by the incorporators for the benefit of the corporation shall be deemed to be …

Contracts - Fraud - Defrauded Purchaser Of Land On Contract, Jacob L. Keidan

Michigan Law Review

Defendant filed a counterclaim for damages for deceit in an action brought by the vendor in a land contract. The facts showed that substantial payments had been made both before and after defendant's discovery of the fraud. The court held that defendant's performance of the contract subsequent to his discovery of the fraud constituted a "waiver" of the fraud. Monroe v. Hoffman, 276 Mich. 281, 267 N. W. 836 (1936).

Equity - Rescission Of Contract Induced By Fraud - Money Judgment As An Alternative To Specific Restitution

Michigan Law Review

Plaintiff entered into an agreement for the exchange of interests in real estate with one of the defendants. After payment of part of the boot money agreed upon, the plaintiff defaulted and sued to have the agreement rescinded for fraud. The trial court rendered a money judgment for the amount at which the plaintiff's property had been taken on the trade. Held, that defendant's wife, to whom the property had been conveyed, should have been joined, and that the decree should be modified to order a reconveyance to the plaintiff. Bacon v. Fox, 267 Mich. 589, 255 N. …

The Equitable Lien As A Remedy For Breach Of Contract

Michigan Law Review

Modern decisions have developed the equitable lien as an important procedural device alongside the equitable remedies of constructive trust and subrogation, with both of which it is intimately connected. The equitable lien or charge, enforceable by foreclosure and sale, is in many situations the most convenient and flexible device for enforcing equitable obligations. A sphere of activity in which it has already proved useful, and in which its usefulness may increase, is in the field of breach of contract. The equitable lien here provides an intermediate ground between affirmative specific performance and complete rescission.

Contracts-Wagers - New Consideration

Michigan Law Review

Plaintiff and defendant were engaged in illegal stock transactions at the end of which plaintiff owed defendant $11,961.05 and defendant owed plaintiff $7,600.00. In making out the check for his debt, plaintiff deducted for the $7,600.00 and wanted to give only $4,361.05 because defendant's check for the former sum, although it had been mailed, had not yet cleared. On defendant's assurance that the check would clear and be paid, plaintiff added $7,600.00 to the check which he gave to the defendant. Defendant promptly cashed plaintiff's check and stopped payment on his own. In a suit for the $7,600, to which …

Contracts - Liability Of The Assignee Of A Land Contract - Reformation By Extrinsic Evidence

Michigan Law Review

Defendant Campbell assigned a contract to purchase land from the plaintiff to the defendant bank, the evidence being undisputed that the assignment was additional security for an existing indebtedness of Campbell. A printed form containing a promise by the assignee to pay the purchase price was used. The name of the assignee was left blank in order that the name of a prospective purchaser could be filled in if an anticipated sale materialized. In an action to foreclose the land contract the vendor asked for a deficiency judgment against the defendant bank. Held, that the vendor was not entitled …

Banks And Banking - Land Contract As Item For Collection Under The Bank Collection Code

Michigan Law Review

The petitioner deposited with A Bank a land contract. The bank was to collect payments thereon and remit them to the petitioner. After making two collections amounting to $100, the bank became insolvent and the petitioner sought a preferred claim against all the assets of the bank. The Bank Collection Code (sec. 13 of Act No. 240 of the Public Acts of Michigan, 1931) was the basis of his claim. The trial judge allowed him a preference as to cash assets on hand at the time the receiver took possession. Since it was doubtful whether there would be any cash …

Quasi-Contracts -- Sufficiency Of Technical Benefit

Michigan Law Review

A brokerage house, the R. Co., having purchased stock on margin for the plaintiff, requested a payment of $1100 in order to protect themselves in carrying the account. Doubting the financial stability of R. Co. the plaintiff decided to transfer the account to another firm, the defendant, and accordingly delivered to R. Co. a personal check naming the defendant as payee, at the same time orally directing R. Co. to transfer the stock and check to the defendant and from them receive payment in full. R. Co., however, falsely represented that the check was really theirs and that the plaintiff …

Contracts - Champerty

Michigan Law Review

Plaintiff leased her lands to defendant under a void oil and gas lease. One Johnston induced plaintiff to enter into a contract with him whereby Johnston agreed to pay the costs of a bill to cancel the lease in return for a new lease to himself should the bill be successful. Accordingly, this suit was brought to cancel the lease. The court, agreeing that the existing lease was void, nevertheless dismissed the bill on the ground that the contract between Johnston and plaintiff was void as against public policy, and that plaintiff had no standing in equity. Of the eight …

Vendor And Purchaser-Right Of Purchaser To Exoneration As To A Prior Vendor's Lien

Michigan Law Review

The case of McClure v. Southfield Woods Corporation, decided by the Michigan supreme court last year, raised an interesting question as to whether a contract vendee of land which is included in a tract subject to a pre-existing vendor's lien has a right of exoneration against his vendor as to such incumbrance. The plaintiff in that case had sold land to the Southfield Woods Corporation by a contract which provided for joinder of the vendor and vendee in a subdivision plat and for release of any lots from the vendor's lien upon payment of a stipulated sum, in addition …

Non-Assignment Provisions In Land Contracts, Edwin C. Goddard

Michigan Law Review

Many a sale of real estate is made to a purchaser who lacks the ready cash to pay the price. A deed of conveyance may be given with a mortgage back for the unpaid portion of the purchase price. But more and more in recent years the vendor has given a contract to convey conditioned upon the making of periodical payments of stipulated amounts, a deed to be given when the whole or a stated portion of the purchase price has been paid. The initial payment may be very small, and not infrequently the periodic payments are little more than …

Private Carriers - Contracts Limiting Liability For Negligence

Michigan Law Review

Defendant contracted to haul cars belonging to a circus under a stipulation that it was not to be liable for injury or damage resulting from the negligence of its employees. Plaintiff, who had made an employment contract with the circus, releasing them and the defendant from liability for injury to him, was injured in a collision caused by the negligence of the defendant's servant. Held, the defendant could not contract against liability for injury caused by its wilful and wanton negligence and was therefore liable. Sabol v. Chicago & N. W. Ry. (Mich. 1931) 238 N. W. 281.

Insurance - "Liability" Of "Indemnity" Contract - "No Action" Clause

Michigan Law Review

Plaintiff sued his insurer upon a policy which provided that the defendant would indemnify the insured against loss from liability for damages and would defend any suit brought against the assured to recover such damages. The policy contained a "no action" clause which denied a right of action unless a final judgment had been rendered and the assured had actually sustained a loss by payment of such judgment. Such a suit, brought against the plaintiff, had been unsuccessfully defended by the insurer. It was held that plaintiff could recover on the policy upon the rendition of the judgment and without …

Evidence - Burden Of Proof - Compliance With Stipulation In Bill Of Lading As To Time For Claim Of Loss

Michigan Law Review

P purchased potatoes in Michigan. He instructed the defendant railroad to deliver the potatoes to the warehouse of B when they should arrive in Richmond. Instead, some were sent to another warehouse. Before P discovered the mistake, the potatoes had spoiled. P made claim of loss six months and twenty days after the shipment left Michigan. The bill of lading provided: "Sec. 2 (b). Claims for loss or damage . . . must be made in writing . . . within six months after a reasonable time for delivery has elapsed." The testimony of Neiss, freight clerk, who was called …

Contracts-Breach Of Implied Warranty That Construction Be Usable For Purpose Intended

Michigan Law Review

Plaintiff and defendant entered into a contract by the terms of which defendant was to assign to plaintiff an equity in a land contract to purchase a lot. The plaintiff was to complete the payments and sell to the defendant on a land contract this same lot with a house and garage to be erected by the plaintiff, an experienced builder, according to plans and specifications to be drawn by the latter. The defendant was to be given credit for the amount he had previously paid on the lot, and the price was further reduced by the defendant doing the …

Injunction-Breach Of Negative Covenant-Adequate Remedy At Law

Michigan Law Review

The defendant, an owner of a gasoline station, entered into a contract with the plaintiff whereby he agreed to buy "all motor fuels handled, sold, or required" at his station from the plaintiff. He further agreed not to "sell, or allow to be sold on his premises * * * any other brands of motor fuel than those of the seller [plaintiff]." Before the expiration of the contract the defendant notified the plaintiff that he would no longer be bound by the contract. The lower court dismissed a bill praying for an injunction restraining the defendant from violating the negative …

Contracts-Rescission For Substantial Breach-Lien For Improvements Given Vendee

Michigan Law Review

For statement of facts see preceding note in this issue, Younger v. Caroselli, 251 Mich. 533, 232 N.W. 378.

According to the majority view in the United States, a builder, whose substantial breach of contract (the instant case can hardly be considered one of substantial performance) is merely negligent and in good faith, can recover the value of his labor and materials less the damage caused the promisee.

Contracts-Right Of A Third Party Beneficiary

Michigan Law Review

Husband and wife agreed with each other to make mutual wills which would leave one-third of the estate of the survivor in equal portions to seven relatives, four of whom were the mother and three sisters of the husband and the remaining three, a niece and two sisters of the wife. After the husband's death the wife made another will, revoking the former one and providing for a different distribution of her property. After her death the mother and three sisters of the deceased husband filed a bill for the specific performance of the contract to make mutual wills. Held …

Quasi-Contracts--Improvements On Land Of Another By Mistake

Michigan Law Review

Plaintiffs filed a bill in chancery seeking compensation for a house built on the defendants' lot due to an error on the part of the plaintiffs. The lower court granted a decree offering the defendants the election of taking the improvements at a fair value found by the court or of releasing the lot to the plaintiffs on the plaintiffs' paying its fair value. On appeal, held, this relief was proper. Hardy et al. v. Burroughs et al. (Mich. 1930) 232 N.W. 200.

Landlord And Tenant-Covenant Not To Assign Without Lessor's Consent

Michigan Law Review

The growing practice of leasing important business property, especially for long terms, rather than of conveying the entire fee simple, has made increasingly important the devices inserted in such leases for the protection of the respective parties. One of the oldest and most common of these, for the protection of the lessor, is the covenant by the lessee that he will not assign the term without the consent of the lessor.

Acceptance Of Deeds

Michigan Law Review

In discussions of delivery of deeds consideration is commonly given to the element of acceptance, as if that were a part of delivery. In the ordinary case of delivery there is an acceptance by the grantee, but, it is submitted, when delivery is properly analyzed it will be found that acceptance is no proper part thereof, whatever may be said as to the necessity for assent in effectuating a change in ownership.

Contracts For The Benefit Of A Third Person In Michigan, Grover C. Grismore

Articles

In the recent case of Preston v. Preston the supreme court of Michigan had occasion to consider the question as to whether or not one for whose benefit a contract is made has any enforcible rights. The suit was one 'in Chancery, the donee plaintiff was an invalid, and every consideration of justice and equity demanded that she be given relief. The court had, however, to face the fact that in recent cases it had indicated its opinion to be that the third party beneficiary has no rights. In Modern Maccabees v. Sharp, (1910) 163 Mich. 449, 456 the court …

Re-Writing The Statute Of Frauds: Part Performance In Equity, Willard T. Barbour

Articles

One of the most striking examples of judicial legislation is that process whereby courts of equity, from the end of the seventeenth century onwards, have in no small measure re-written the Statute of Frauds. Exception was added to exception until the doctrine kmown as "part performance" became firmly established. The doctrine was not evolved consistently and the basis of some applications of it is obscure. One who follows Sir Edward Frys admirable but futile attempt (Fry, SPECIFIC PERFORMANCE (ed. 5) §§ 580, ff.) to systematize the variant decisions of the English courts must feel doubtful whether any single theory will …