140 Mich. 524 | Mich. | 1905
The plaintiff was a real estate dealer in the city of Detroit. Defendants were the owners of an interest in certain real estate situated in said city. This property had belonged to one Henry Smith, who died leaving a widow, the defendant Mary Smith, and ten. children. One of these children quitclaimed to the other nine heirs, leaving each the owner of a one-ninth interest. On June 3, 1903, the widow and one of the sons (John F. Smith), the defendants in this suit, entered into the following agreement with plaintiff, through his agent, R. Z. Chandler, for the sale of this property:
“Detroit, June 3d, 1903.
“ Received of Richard L. Miller $50 as first payment of $11,000 for the purchase of Lots Nos. 8 and 9 block 27, being 100 feet facing Fort Street, and being the northeast corner of Eighth and Fort Streets, Detroit, Mich., the balance of the purchase price being payable as soon as we furnish perfect title to above property, we to furnish a Burton or Union Trust abstract.
“We further agree to give a warranty deed to Richard L. Miller or his assigns as soon as purchase price is tendered.
“John F. Smith.
“Mary Smith.”
The Union Trust Company abstract, duly certified, was furnished as agreed, June 12, 1903, which showed the title as above stated. Plaintiff, at the time he secured the agreement above set forth, from defendants, had a prospective purchaser, and on June 11th entered into a written agreement with him to sell this property for the sum of $12,150. The agent, Chandler, informed defendant John F. Smith that plaintiff was selling the property to Thomas H. Long, and thereupon negotiations were entered into between defendant John F. Smith and Mrs. Long, the wife of Thomas Long, in which Smith agreed to sell the property to her for $11,000, less $50 that had
The court charged that, in order to know what the real contract or agreement was between these parties, it must be supplemented by the oral proof which had been admitted; that by the talk between the parties “it appears and is conceded by counsel that it was contemplated that the other heirs should join in the conveyance, * * * that it was contemplated by these parties, before recovery could be had, there should have been a tender made by the plaintiff, or else it should be shown that there was such a refusal made as would show that he was not resting in his own wrong, or that he was acting wrongfully and contrary to the spirit of this agreement or arrangement between these parties.”
The suit was brought upon the written agreement signed by defendants, above set forth. The writing is unambiguous and complete, and requires no extraneous evidence to explain its meaning. It is fundamental that no oral evidence to change or vary its terms would be admissible. As far as this record shows, the writing was
“When the memorandum of the oral contract is in writing and signed by the vendor, it is not the contract, but a memorandum, which makes it binding upon him if accepted by the vendee. This is valid evidence of the contract. But can it bind him if not binding upon the vendee? The statute differs from the English statute, which binds the one sought to be charged only when he has signed it. Under such a statute it' may be doubtful if, relying solely upon the memoradum signed by himself, the vendor could enforce or recover damages for the breach of the contract. * * * But whether this is so or not, we cannot doubt that, before either party can make the contract the basis of a suit or action, the element of mutuality must be discernible. See Wilkinson v. Heavenrich, 58 Mich. 574. * * * It being admitted that the vendor has made and the vendee accepted such a memorandum, it must, in the absence of fraud, be taken as conclusive, not subject to variation by parol evidence, and, if it contains all of the requisites of a valid contract, it is binding on both; otherwise not.”
In the case at bar the memorandum is much more full and explicit in its terms than in the case above quoted. It contained all the necessary elements of a land contract, together with the acknowledgment of acceptance and payment of a part of the purchase price by plaintiff. It was a valid contract for the sale of land, upon which an action might be brought by either party to recover damages claimed on refusal to perform by the other. It is admitted that the plaintiff knew the condition of the title; that there were others besides the defendants who held interests which must be acquired before defendants could convey
The demand for the deed and the refusal by defendants in the manner above set forth was evidence tending at least to show that tender of the balance of the purchase price was waived by defendants, and we need not consider at this time whether the circumstances would warrant a holding that a tender would be futile and unnecessary. The court was in error in holding that the writing did not show the agreement between the parties, and in taking from the jury the question of waiver of tender.
The court charged and held that plaintiff could not recover, unless, in a court of equity, specific performance of this contract would have been granted. Specific performance óf a contract to sell land cannot be enforced where the vendor is not the owner. In such case the remedy of plaintiff is in an action at law. Defendants contracted to sell the land in question, of which they owned but an undivided interest. In case of failure to perform on their part, the fact that specific performance could not be enforced would not bar plaintiff from his right of action at law to recover damages for such failure.
As to the instruction of the court to the jury to return a verdict for the defendants, considering our conclusions in discussing other errors assigned in the case, it is only necessary to say that such instruction was erroneous.
The judgment is reversed for the reasons stated, and a new trial ordered.
