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03/08/76 SCHRIER v. FRENCH

March 8, 1976

SCHRIER
v.
FRENCH



Appeal from Van Buren, Robert E. A. Boyle, J.

D. E. Holbrook, Jr., and D. E. Holbrook and T. M. Burns, JJ.

SYLLABUS BY THE COURT

1. Contracts -- Parties -- Breach -- Performance.

A party to a contract is not obligated to perform further when he is certain that the other party has breached the contract.

2. Contracts -- Parties -- Damages -- Breach -- Mitigation.

A party to a contract who could have taken action to avoid increased damages caused by the other party's breach cannot be heard to complain that he was damaged by the breaching party where the first party failed to take action and permitted a bad situation to get worse; a party's failure to mitigate damages may act as a bar preventing his recovery of damages from the other party.

3. Appeal and Error -- Findings of Fact -- Witnesses -- Demeanor -- Credibility.

The Court of Appeals, in reviewing a trial court's findings of fact, gives considerable weight to the fact that the trial court has had the opportunity to observe the witnesses, and the manner in which they testified, and to Judge their credibility.

4. Trial -- Trial Judges -- Deposition as Evidence -- Defendant's Own Testimony.

A defendant's claim that the trial Judge improperly considered a deposition in determining a question of fact was groundless where it was obvious that the trial Judge based his findings of fact upon that defendant's own testimony at the trial and not upon the deposition.

5. Evidence -- Photographs -- Admissibility.

Photographs are admissible in evidence if they are helpful in illuminating any material point in issue.

The opinion of the court was delivered by: Holbrook

Complaint by Harold D. Schrier against Paul C. French, Jr., and Betty Lou French, individually and doing business as French Farms, for an accounting and for damages for a breach of contract. Defendants counterclaimed against the plaintiff for sums due on the contract and other sums of money on quantum meruit for services rendered and for an accounting. Pearl Grange Fruit Exchange, Inc., was joined as intervening counter-defendant on the counterclaim. American National Bank and Trust Company intervened as a party plaintiff to protect its security interest in certain feeder pigs. Defendants joined the intervening plaintiff as a defendant on the counterclaim alleging that intervening plaintiff had acted in concert with the plaintiff to defraud defendants. The bank was later dismissed by stipulation. Judgment dismissing both the complaint and counterclaims. Defendants appeal. Plaintiff and intervening counter-defendant cross appeal. Upon the accidental death of plaintiff while the appeal was pending, Frances L. Jensen, Administratrix of the Estate of Harold D. Schrier, was substituted in his place.

In this case plaintiff sued the defendants for breach of a contract, for an accounting and damages. Defendants counterclaimed against plaintiff claiming sums due on the contract and other sums of money based on quantum meruit for services rendered the plaintiff and an accounting.

Testimony was presented by both plaintiff and defendants, including testimony from expert witnesses. Various exhibits and depositions were also admitted into evidence. The transcript of the testimony comprises 1,634 pages.

The trial court found that plaintiff was not entitled to any relief and dismissed plaintiff's complaint, and also found that defendants were not entitled to any relief and dismissed their counterclaim. We have reviewed the record and believe the trial court succinctly and properly stated the facts and decided the issues before him, and which are now raised on appeal before us. We incorporate part of Judge Boyle's opinion in this opinion, viz:

"This court does not consider it necessary to set forth the facts in great detail. The facts deemed necessary to decision are as follows: Plaintiff Harold D. Schrier, who will be hereinafter referred to as Schrier, resides and has his office for his firm of petroleum waxes and chemicals in the City of Kalamazoo. During a period between 1964 and 1967 he purchased three farms in Van Buren County known as Red Bird Farms and devoted the farms to the raising of swine, which business was carried on by his then wife, Colleen Schrier. In early 1969, defendant Paul C. French, Jr., who will hereinafter be referred to as French, met Schrier at a gathering at the home of some friends. Schrier's version of it is that French 'barged in' on them for the purpose of insinuating himself into the good graces of Schrier so that he could become associated with him in a swine raising and marketing operation, using Schrier's substantial financial resources. French denies Schrier's version and says that he was introduced to Schrier and shortly thereafter there was a ...


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