MAX BROOCK, INC. v. Walker
84 N.W.2d 336
Mich.
1957
Check Treatment
*65 Black, J.

(after stating the facts). The question before us is whether the rule of Dikeman v. Arnold, 78 Mich 455, 469, 470, supported by the assembly of authorities shown in Lamberts v. Lemley, 314 Mich 417, sustains plaintiff’s claim that the covenant for conveyance of a marketable title as contained in this listing contract serves to unsettle defendant’s reliance on Casey v. Hetherington, 220 Mich 176; Koffman v. Pack, 224 Mich 102; and Kostan v. Glasier, 337 Mich 287. We hold that it does and, to set this recurrent issue at rest, affirm that a listing, contract, in form as here declared upon, is enforceable — as between the parties on due performance by the broker — regardless of disclosure at the time of signing that the party obligating himself for payment is not *66 outright owner of the land contemplated for sale. This simply reaffirms Dikeman’s rule, quoted as follows (pages 469, 470 of report):

“We think the contract was good between Arnold and the plaintiffs. He knew when he made it that he could not perform it without the signature of his wife to the deed. He, in effect, bound himself to procure such signature. It in nowise differs in this respect from a contract to sell lands which one does not own at the time he makes such contract. The fact that one did not have the legal title at the time he made the contract, and could not procure it after-wards, has never been recognized as a legal defense to an action for breach of the contract.”

Other questions raised by defendant in support of the judgment below are deemed of no merit. The first is that the listing contract as sued upon is indefinite and incomplete and hence void under the statute of frauds. * The contract itself negates such contention. The second is that plaintiff did not allege and prove that the produced purchaser was able, as well as ready and willing, to purchase according to the stipulated terms. With regard to this second contention, due amendment of the declaration was allowed and the fact of the produced purchaser’s ability to acquire was attested by open court stipulation.

Reversed and remanded for entry of judgment in favor of plaintiff. Costs to plaintiff.

Dethmers, C. J., and Sharpe, Smith, Edwards," Voblkeb, Kelly, and Cabe, JJ., concurred. ¡

Notes

*

CL 1948, § 566.132 (Stat Ann 1953 Rev § 26.922). — Reporter.