221 Mich. 40 | Mich. | 1922
The plaintiff files his bill for the specific performance of an oral agreement which he
We think the evidence supports the finding of the circuit judge that the oral agreement was made as plaintiff claims, and that he paid $1,800 for the repairs and remodeling of the house. The important question involved and relied on by defendants is that if the oral agreement was made by the parties, it was void under the statute of frauds and there was no such part performance as would take it out of the statute. The circuit judge based his conclusions as to part performance on possession, improvements and payment of the consideration.
The facts as to possession appear to be that the plaintiff was at first living with Ottilie Wagner on the premises as a boarder; that he married her in April, 1912; that after the marriage they continued to live at the same place until November, 1912, when they rented the property and moved to Ecorse. About two months after the marriage the oral agreement was made. His possession, if it can be said that he had any, did not constitute an act of part performance, because it was not taken under the oral agreement and in reliance on it, but was exclusively referable to the
Possession with his wife of the premises following the oral agreement together with a recognition by her of his joint interest would present a different situation. See Murphy v. Stever, 47 Mich. 522.
As to improvements, the plaintiff made none. They were made by the owner and he paid for them. That was his agreement. The bill states it as follows:
“That in June, 1912, about two months after the. marriage between your plaintiff and said Odelia Weiland, an agreement was orally entered into by and between your plaintiff and his said wife at that time, to the effect and tenor that if this plaintiff would pay all the necessary bills for rebuilding and repairing said house on said lot, putting in new foundations, changing the same into a two-family flat, putting in modern plumbing, bathroom, gas, and painting the same, that the said Odelia Weiland would change the deed of said premises to an estate in the entirety, in the names of your plaintiff and said Odelia Weiland,” etc.
The only witness who testified to a contract and to the improvements supported this allegation in the bill. The only thing that plaintiff did in part performance of the contract was to pay the consideration. For this he could have been compensated in an action for damages.
“The mere payment of consideration by the purchaser which is susceptible of being compensated by damages, is not sufficient to take the case out of the*44 statute.” Grindling v. Rehyl, 149 Mich. 641 (15 L. R. A. [N. S.] 466).
“It is not payment alone that will take a case out of the statute, but this with possession, and acts done as owner in reliance thereon, that cannot ordinarily be compensated in damages, which entitles a party to an enforcement of a verbal agreement relating to the sale of lands.” Peckham v. Balch, 49 Mich. 179.
See, also, Lamb v. Hinman, 46 Mich. 116; Kelsey v. McDonald, 76 Mich. 188.
There are other facts and circumstances presented by the record which I think might materially affect plaintiff’s right to relief in equity, but these it is not necessary to discuss. As I view the whole matter, it is simply a case where the plaintiff has paid out money under a void contract. He has not presented a case where specific performance is necessary to do full justice and prevent fraud.
“It has never been deemed proper to grant redress on a parol contract for a part performance capable of full pecuniary measurement. Generally there must have been a change of possession of the land in controversy, which is always regarded as involving considerations not easily estimated in damages. There are very few other cases where parties are placed in any such predicament as to require protection to save them from being defrauded.
“It is not the policy of courts of equity to enlarge the exceptions to the statute of frauds. Where parties see fit to neglect the means it provides for putting their agreements into a form which will prevent disputes, they must usually be content to trust to each other’s promises, and not ask the courts to relieve them against the consequences of their own carelessness.” Webster v. Gray, 37 Mich. 37.
The decree of the circuit court will be reversed. Costs will go to the defendants. A decree will be entered dismissing the plaintiff’s bill.