Holland v. Holland

195 Mich. 513 | Mich. | 1917

Brooke, J.

(after stating the facts)." It is perhaps a significant fact that the paper writing, specific performance of which is directed by the decree, is not set out in the bill of complaint. It is further significant that after the hearing in the court below was closed and nearly a month had intervened plaintiff applied for and secured a reopening of the case for the purpose of introducing further testimony, when he went upon the stand and gave testimony to the effect that, when he delivered his deed to Cochran and received defendant’s check in return therefor in settlement of the partnership affairs, it was understood that Cochran was to hold the same for a time until he (plaintiff) should determine whether he should remain in partnership with his brother Edward or not. It is now asserted on behalf of appellee that there was no delivery of the deéd from plaintiff to defendant sufficient'to pass title. All the witnesses to the transaction whose evidence was. taken upon the first hearing agree that the deed was delivered in consideration of the check, and that the partnership was closed. The bill itself asserts a delivery and makes no claim of any condition in connection therewith, and the decree of the court assumes such delivery because it directs the conveyance to plaintiff of the one-half interest in the hotel property. Such a decree could only be based upon the assumption that the entire title to the property at the time the decree was made rested in the defendant Edward Holland. The decree refers to the agreement to reconvey, and direct specific performance thereof. The first question therefore to be determined is whether the writing relied upon is sufficient under our adjudicated cases to warrant the court in granting the relief sought. This paper is fatally defective in several vital particulars. It has been repeatedly held that a memorandum to be sufficient under- the statute must be complete in itself and leave nothing to rest in parol. It must not only contain a description of the property to be conveyed and the consideration to be paid therefor, but it must definitely express the time or times of payment. McMurtrie v. Bennette, Har. Ch. (Mich.) 124; Gault v. Stormont, 51 Mich. 636 (17 N. W. 214); Ebert v. Cullen, 165 Mich. 75 (130 N. W. 185, 33 L. R. A. [N. S.] 84), and cases there cited. Assuming that the description of the property to be conveyed is sufficiently stated in the paper writing, there is no consideration named, nor is there any time stated within which said consideration must be paid. Where no time is fixed for performance, the court 'will not grant relief. Gates v. Gamble, 53 Mich. 181 (18 N. W. 631). Equity is without.power to enforce a contract such as the one counted, upon in the case at bar. Our conclusion upon this point renders it unnecessary to consider the claim advanced by the defendant Edward Holland that the hotel property was the homestead of himself and wife, and that her signature was necessary to any enforceable contract for its sale. It is, we think, quite clear from an examination of the evidence given by the interested parties that it was never agreed between plaintiff and defendant Edward that Edward should reconvey a one-half interest in the hotel property to his brother, the plaintiff, for the sum of $782.80. That both parties at one time desired and perhaps expected to again become associated as partners in business cannot be questioned, but the terms of such contemplated partnership are not set out in the contract relied upon

The decree of the court below is reversed, and the bill dismissed, with costs of both courts to the defendants.

Kuhn, C. J.,"and Stone, Ostrander, Bird, Steere, and Fellows. JJ.. concurred. Moore, J.. did not sit.