213 Mich. 373 | Mich. | 1921
The plaintiff, a real estate broker, having learned that Peter Smith & Sons, a corporation, was considering the sale of the leasehold interest and building owned by it at the corner of Griswold and State streets in Detroit, and being advised by Mr. Talbot, secretary of the company, that the same might be purchased for $325,000, provided some representative man was interested, and being told that it would not
“Mr. Ben B. Jacob,
“Detroit, Michigan.
“Dear Sir: Whereas, you have this day secured for me an assignment of a certain option to purchase the leasehold and building known as the Peter Smith & Sons building, located at the southwest corner of Gris-wold and State streets, in the city of Detroit, Michigan, which assignment is made direct from Alfred M. Low to me, but wMch was obtained and secured by you from the said Alfred M. Low, the assignment running direct from him to me, I herewith agree to pay you as a further consideration for said assignment and for your services, the sum of twenty-five thousand ($25,000.00) dollars unless (a) I shall sell said building for a sum in excess of four hundred thousand ($400,000.00) dollars before the time of the expiration of said option, in which event I shall pay you not only said twenty-five thousand ($25,000.00) dollars, but also twenty-five per cent. (25%) of the excess*376 over and above four hundred thousand ($400,-000.00) dollars for which I shall sell said building and leasehold; or (5) unless on or before fifteen (15) days before said option expires, I notify you in writing of nay intention not to exercise said option, and I do agree, in that event, to reassign said option to you any time within the fifteen (15) days prior to the expiration of said option, upon your paying me the sum of five thousand ($5,000.00) dollars, the same being the amount heretofore paid for said option and to apply on the purchase price, in the event the option is exercised.
“In the event of neither A or B happening, I shall remain liable for said twenty-five thousand ($25,-000.00) dollars and the same shall be payable as follows:
“If the leasehold and building is sold by me on or before the date of the expiration of said option, said twenty-five thousand ($25,000.00) dollars shall be payable forthwith in cash, but if the building is not so sold, I agree to form a corporation before the expiration of said option, which corporation shall have a capital of one hundred and six thousand ($106,-000.00) dollars, representing the eighty-one thousand ($81,000.00) dollars I have paid for said leasehold and building subject to a mortgage on same, less the six thousand ($6,000.00) dollars to be used to retire the past due bonds on same, and plus the twenty-five thousand ($25,000.00) dollars I am indebted to you for on account of your services and as a further consideration for securing said option. Said one hundred and six thousand ($106,000.00) dollars shall be the total capital stock of said corporation and twenty-five thousand ($25,000.00) dollars of said stock, I agree to deliver to you in payment of the twenty-five thousand ($25,000.00) dollars hereinbefore set forth and due you.
“In witness whereof, I have hereunto set my signature this tenth day of March, in the year one thousand nine hundred and sixteen.
(Signed) “George H. Cummings.”
As the time of the expiration of the option drew near, defendant talked matters over with plaintiff and
The last option was in April, 1918. The bill herein was filed June 13, 1916, and prayed, among other things, for an accounting relative to defendant’s exercise of rights under the first and second options and for a personal decree. The circuit judge held that the agreement was so modified and abandoned by the parties that plaintiff could not recover under the agreement, and no damages being shown, none could be recovered. It appears that the building was not sold 'before the expiration of the option, so that part of the agreement, providing for the payment of $25,000 and 25 per cent, of the excess over and above $400,000, is out of the case.
Plaintiff at the hearing planted his right to recover a money decree upon the failure of defendant to notify him of an intention not to exercise the option. It is clear that defendant did not form the intention not to exercise the option and this was well known to plaintiff, and with such knowledge plaintiff tried to have the option extended but failed and defendant obtained a new option at an increased price. If defendant did not sell the building for a sum in excess of $400,000 before the time of the expiration of the option, or, if he intended to exercise the option, then he was to pay $25,000 in cash if he sold the leasehold and
The written agreement, after it was signed by the defendant, could be modified, and strict performance thereunder waived or abrogated by the parties, without violating the rule against the admission of evidence to alter, vary or contradict a written agreement. The rule relates to an attack upon the writing itself, and has no reference to the right of the parties to change the method or manner of performance, or waive rights or remedies thereunder by parol. Grand Traverse Fruit, etc., Exchange v. Canning Co., 200 Mich. 95; 17 Cyc. p. 734; Town v. Jepson, 133 Mich. 673; Wolff v. National Bank, 131 Mich. 634; Mouat v. Bamlet, 123 Mich. 345. If the parties considered it to their advantage to depart from strict performance of the agreement, that would constitute a sufficient consideration.
A departure from stipulated performance can be predicated upon acts as well as upon an express agree
In their brief, counsel for plaintiff ask that, if this court finds that damages have'' not been proven, due to the fact that payment was to be made in shares of a certain corporation to be formed by defendant, that the case be remanded for a rehearing in order to permit the introduction of such proof. The plaintiff having selected the equity side of the court, and bringing the case here on appeal to be heard de novo on the record made in the circuit, we must decide the case as presented and enter final decree.
The circuit judge reached the right conclusion and the decree entered is affirmed, with costs to defendant.