Kennedy v. Ford

Ostrander, J. (after stating the facts). I do not find that appellant’s first point was made in the trial court. Indeed, the court was requested to instruct the jury to render a verdict of guilty and to determine that there was due complainant, by virtue of the contract, $481.20, which was the amount agreed to be due. As to the second point, the appellee does not claim that the vendee’s interest was surrendered by parol, and does contend that what he did amounted to an abandonment of the premises, surrender thereof to the owner, and acquiescence in the claimed and asserted forfeiture of his rights; that thereafter he interfered with complainant’s acts as, possessor of the [486] premises in a threatening manner and excluded complainant by threats and a show of force. Defendant seems to have wholly misapprehended the complainant’s theory and the ruling, of the trial judge. Complainant does not claim to be entitled to possession of the premises in consequence of the nonpayment of a sum of money. She denies that the parties have any contract, relations. If she is right, it is not because defendant attempted to divest himself of his interest in the land by parol. The contract provides for a forfeiture of the vendee’s rights, at the election of the vendor. The vendor elected to forfeit. It is obvious that thereafter the vendee might have acquiesced, surrendered his possession to the vendor, and thereby lost all right in the premises, or, he might have refused to do so. If he had refused, and suit'to recover possession had been begun and successfully prosecuted, then by virtue of the statute (3 Comp. Laws, §§ 11168, 11177) he would still have the right to pay the sum found to be due on the contract and double the costs awarded to complainant, and in this way save his interest in the land. A jury has found that the vendee acquiesced in the forfeiture and surrendered possession to the vendor. If he did, he should not have retaken and retained possession by force. He could not, in this way, reinstate the original contract relations of the parties and by virtue of them claim the benefit of the statute right to discharge his contract obligation after judgment. There was testimony supporting the verdict of the jury, and there was no motion for a new trial. The charge of the court was contradictory, both in the recital of the contention of complainant and in advising the jury that if they found no surrender of possession by the vendee, they should still find defendant guilty and find the amount due on the contract. The instruction is explained by the attitude of defend [487] ant as indicated in the requests to charge, and the wrong recital may be charged to inadvertence. Defendant could not be, and was not, prejudiced by either. It is alleged as error that the court struck out the answer of defendant to the question, “Did you ever surrender possession to Josephine R. Kennedy?” What the parties did and said was laid before the jury. Whether there was a surrender was at least a mixed question of fact and law. No fault is found with the charge in this behalf, and the court was not in error in the ruling complained about. Reversible error not being made to appear, the judgment is affirmed. McAlvay, C. J., and Brooke, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.