212 Mich. 657 | Mich. | 1920
Defendants, who were the. owners of certain lots on North Saginaw street, in the city of Flint, .gave plaintiff a 30-day option thereon, reading as follows :
“May 26, 1919.
“In consideration of one ($1.00) dollar, we, the undersigned, agree to give option to Morris Cooper oh lots 831, 833 and 835, North Saginaw street, for the sum of two hundred sixty and no/100 dollars per front foot. It is agreed that first payment be made five thousand dollars. Balance to be secured by deed of trust for five years with six per cent, interest. This option will expire on June 26, 1919.
“Fred D. Pierson,
“Robert L. Pierson,
“Fannie G. Pierson.”
“$100.00 June 26, 1919.
“Received from Morris Cooper one hundred and no/100 dollars, part payment on purchase price of Lots No. —, known in option furnished to Morris Cooper in option dated May 26, 1919, the revised No. known as Number 821 North Saginaw street, Flint, Michigan, deed to be drawn on or before 10 days.
“Fred D. Pierson.”
Plaintiff made his check payable to the three Pier-sons and delivered it to Fred, with the understanding that the parties would meet him the next morning at his hotel, so that the matter could be closed. Fred and Robert appeared the next morning at plaintiff’s hotel and advised him that the “option was off” because he did not pay, on the previous day, the $5,000 stipulated in the option, and at the same time Fred offered to return his check to him, but plaintiff refused it. Subsequently plaintiff made a tender of the $5,000 less the $100 check, also the mortgage provided for, but defendants refused to accept them. Plaintiff then filed this bill to enforce specific performance of the option.
The defense made was that the writing was not sufficiently definite and certain to satisfy the statute of frauds. The chancellor refused to enforce the option
(1) Does the option satisfy the statute of frauds?
(2) Does the option, aided by the 10-day extension, satisfy the statute?
But plaintiff’s counsel argue that the parties being tenants in common, the contract is not binding on Fred unless it is binding on Robert and Fannie. In other words, that the agreement must bind all or none, citing Moreland v. Strong, 115 Mich. 211 (69 Am. St. Rep. 553); Walker v. Marion, 143 Mich. 27. These cases do not deny the right of one tenant in common to sell his interest in the common property; they simply consider the relative rights of the tenants in dealing with the property. In one case, however, the court refused specific performance as against one tenant. Adler v. Katus, 190 Mich. 86. That case is distinguishable from the present one in this: The vendor in that case was seeking the relief and the property which was owned in common was not severable. In the present case the vendee is asking relief and the inference to be drawn from the record is that the property is severable, as it consists of three city lots.
The decree as to Fred must also be affirmed, but with the privilege to plaintiff to elect whether he will accept a conveyance or be remitted to an action at law against Fred for his refusal to abide his contract., Fannie and Robert will recover their costs, the same to be taxed against Fred Pierson and the plaintiff, each to pay one-half thereof. Neither Fred nor plaintiff will recover costs.