*1
TUCSON v FARRINGTON
(Calendar
10).
Argued
Docket No. 56276.
November
No.
April
Rehearing
Decided
denied
[1-4] Frauds 354. § Necessity sufficiency of statement of consideration in contract or memorandum of sale of under statute of frauds. 23 ALR2d 164.
Opinion op the Court op Memorandum—Sufficiency Frauds, Statute —Sale Land — Payment —Deferred Terms. general rule, As a a term of credit is an essential term of a *2 land; contract for the credit must sale of be stated with certainty in the written memorandum of the con- tract and a memorandum of a land contract which lacks the precise payment, down the schedule and interval of deferred payments payments and the fixed amount of the is insufficient (MCL 26.908). 566.108; under the statute of frauds MSA op -Memorandum—Sufficiency Frauds, 2. Statute of —Sale Land — Payment —Deferred Terms. writing A is not a insufficient as memorandum of a contract for
the sale of land of under the statute frauds for failure to state with reasonable the time and terms of (because unless, presumed) a cash sale is from the itself, appears agreed that deferred (MCL 26.908). 566.108;MSA Memorandum—Sufficiency Frauds, Statute of —Sale of Land — —Parol Evidence. parties’ negotiations subsequent
Use of evidence of the to a agreement written memorandum of an for the sale of land to supply essential which were omitted erroneous; only from it is evidence of circumstances writing may supplement the time of the be used to its terms to principle show what contract was at that time under the of evidentiary supplementation. Dissenting Opinion Kavanagh, C. Sufficiency Evidentiary Frauds, Statute of — of Memorandum — Supplementation. option agreement sufficiently satisfy
An was deñnite to the stat- question specified ute of frauds where the memorandum in the purchase price, location and amount of the the approximate payment, period years amount of the down made, rate; over which the was to be and the interest equity by using principle evidentiary supple- a court of mentation can fill out the details of the amount of the schedule, and the time for trans- possession defeating public policy fer of without of the state prevent frauds. Farrington James Rubiner Arthur for Charles Rubiner and plaintiffs. (Eu-
Bush, Henderson, Black & Bankson Luce, counsel) Black, for defendants. F. gene J. Plaintiffs Tucson sued defendants Fitzgerald, specific performance. Based on for l,1 trial court found that an plaintiffs’ exhibit the sale of defendants’ for enforceable judgment equi farm existed and entered at 53 The Court requested. table relief (1974), agreed Mich 218 NW2d but modified certain remedy appropriate, was reverse, We judgment. terms2 of the trial court’s sufficiently 1 is not having determined that exhibit of frauds3 to complete justify under the statute specific performance. *3 signed Farring and the by
Exhibit was drafted 13, 1970, Mr. tons on June at which time 44, "June 1970” MAY "TO WHOM IT CONCERN: WIFE HAZEL AGREE TO SELL "MORRIS S. FARRINGTON AND PROPERTY AT 2276 WADHAMS ROAD TO CHARLES TUCSON AND WIFE DESCRIBEDAS FOLLOWS: "Sl/2 of NW1/4 EX N 900' of Wl/2 THEREOF ALSO THAT PART N G.T.R.R. & 81.56 A OF Nl/2 SW1/2 LYING OF R-W CONT. SEC ($50,000). fifty R16E 11 T6N 81.56 A for the sum of thousand dollars down, Approximately paid period one third the balance to be over a years EXPIRE interest. THIS OPTION TO IN DAYS. 7% (100.00) paid dollars to at time of One hundred said amount to be applied purchase price. on Farrington S. "Morris "Hazel Farrington —9823336” The amount of down the amounts and terms of deferred possession. and the date of 566.108; pertinent part MSA 26.908 reads in follows: 3 MCLA as "Every leasing longer period year, or for contract for the for a than 1 lands, void, lands, any any in unless the sale of the signed by some or interest shall be contract, writing, made, in or some note or memorandum thereof be by party by or whom the lease or sale is to be writing”. person lawfully thereunto him authorized in delivered check for An to them his addi $100. Farringtons tional to the on paid July was $400 11, 1970. If operative These are the facts. they do enforceable specifically evidence a for the sale of the other facts record set realty, forth than below4 evidence little more five months 23, 1970, contemplation closing On June of this sale to Tucsons, Farringtons completed purchase of a new residence 11, July Farringtons in Port Huron. On Mr. Tucson informed the having financing "[a]pproximately he was down”, trouble one-third they agreed orally to reduce the down to $10,000. again 25, July July The Tucsons claimed 22 and on that on Mr. $10,000 money payable Tucson showed defendants a order to the Tucsons, negotiate and offered this to instrument to defendants Farringtons deny having execution of a land contract. The ever been any negotiable They shown exhibit a instrument. testified that Mr. Tucson did savings pass negotia- account book on several occasions until down, they ultimately they tions get August broke and that he told them that would money parties agreed orally their when out. The moved on possession. 22 as a date for transfer of 17, August orOn about Messrs. Tucson and met at the Farringtons’ attorney. office of the presented A draft of a land contract was attorney prior to Mr. Tucson who wished to consult his to 20, August attorney execution. On the Tucsons’ wrote to defendants’ attorney suggesting request- various modifications to the contract and ing certain information. Farringtons they premises The testified that vacated the farm on 21, August purchased. They sometime later when occupied they and moved residence in Port Huron which had they further testified that moved back to the farm they discovered that the Tucsons had not premises August on August attorney plaintiffs’ attorney, On defendants’ wrote agreeing of suggested correspondence to one of the modifications in the August expressing regarding language permit- but reservations ting assignment of the contract without the seller’s consent. No correspondence attorneys further was had between the until October meanwhile, during September, In the sometime the month of presented Tucsons went to the defendants’ farm and to them a land signed by contract the Tucsons which modified various terms of Farringtons’ originally-proposed particular, contract. In the contract permitted assignment offered consent of the seller. the Tucsons would have without the *4 7, Farringtons’ attorney, having response On October not had a 24, August plaintiffs’ to attorney requesting his letter of wrote to brought up 2, negotiations. to date on the status of On November plaintiffs’ attorney responded by writing directly to the defendants threatening suit unless the sale were closed within one week. On 173 Tucson v Opinion of the Court signing to the of negotiations subsequent exhibit either to settle attempts parties by 1— or writing, undetermined to modify in
left
in
form.
put
written
those which had been
face,
parties
1
that
reveals
On its
exhibit
payments, but
lacks
orally agreed to deferred
the schedule and inter
and the fixed amount of
val
deferred
***5
rule, a
general
As a
term of
payments.*
those
of the contract
is an essential
term
for the
credit
land,
and it must be stated
sale
in the
memorandum of such a
written
required
case law
that
Michigan
contract.6 Early
in a case
specified
terms be
even
where it
concerned that
was conceded
all
purchase price
was to be made
balance
rigors
The
delivery of the deed.7
statute
relaxed,
in Michigan,
so that
like
gradually
jurisdictions,8
writing
most
did
need to
state
the time or terms of
when the
appeared
transaction
to be a cash sale.9
4,
attorney responded by writing
November
sons’
defendants’
to the Tuc-
stating
parties
agreement,
attorney,
that the
had never reached
willing
plaintiffs’ deposit
that his clients were
to return
and to
negotiations,
continue
an
but that his clients had been inconvenienced
unnecessary change
put
in residence and didn’t want
to be
through
procedure again.
needlessly
changes
in
Substantial
originally-offered
rejected by plaintiffs through
proposed.
contract were
These modifications were
attorney
their
on November 9. Plaintiffs
14,
complaint
their
on December
filed
possession, although
agree
to fix the
The
fails
time of
we
day
age parties entering
that in
with the Court of
this
intend,
evidence,
contrary
into a land contract
transfer of
contract.
the absence of
possession within a reasonable time after execution of the
(3d
Williston,
ed), 575, pp
seq.
74 et
§
Contracts
(1883).
Stormont,
636;
Gault v
NW
Necessity
sufficiency
Annotation:
of statement of considera-
memorandum
tion in contract or
of sale of
under statute of
frauds,
See, also,
2d,
189-203.
23 ALR2d
72 Am Jur
Statute of
Frauds, 353,
seq.
pp 875 et
§
Smith,
Where,
Mull
See
NW 183
*5
169
396 Mich
it
said that a
Today,
safely
be
is
may
insufficient
for failure
under
the statute
to state
unless,
time and terms of
from the
writing itself,
appears
that deferred payments
Miller,
Duke v
agreed upon.
See
Mich
540, 543;
(1959),
The Court
on Wozniak v
relying
Kuszinski,
431;
(1958),
Mich
courts below gathered judicially imposed parties’ from offers counteroffers during made of negotiations the course subsequent parties If writing. This was error. had a contract as of the date of exhibit that writing is insufficient under the statute to compel its performance.
The Court of Appeals is reversed. The cause is remanded to the trial court entry judg- ment dismissing complaint upon payment by defendants in deposit, received plus $500 interest on that amount at the rate applicable to judgments. may Defendants tax costs.
Williams, Coleman, Lindemer, JJ., concur- Fitzgerald, red J.
Ryan, J., part took no in the decision of this case.
Levin, J. (dissenting). would affirm the decision I Court of for the reasons stated in the opinion of that Court. Tucson v Farrington, Mich
Kavanagh, C. concurred with