Randall v. Douglass

Citation321 Mich. 492,32 N.W.2d 721
Decision Date14 June 1948
Docket NumberNo. 63.,63.
PartiesRANDALL v. DOUGLASS.
CourtSupreme Court of Michigan

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Oakland County; George B. hartrick, judge.

Suit by Mary W. Randall against L. Kirke Douglass for specific performance of contract for sale of realty. From a decree for the plaintiff, the defendant appeals.

Decree affirmed.

Before the Entire Bench, except BUSHNELL, C. J.

Miller, Canfield, Paddock & Stone, of Detroit, for appellant.

H. Eugene Field, of Royal Oak (Fletcher L. Renton, of Royal Oak, of counsel), for appellee.

BUTZEL, Justice.

Plaintiff listed a certain parcel of real estate for sale with a Detroit broker who offered it to defendant. The latter signed an offer to purchase the property for $19,000 and made a deposit of $1,000. On the following day plaintiff executed a written acceptance of the offer. There is no dispute as to the terms of the agreement, paragraph 10 of which reads as follows: ‘In consideration of the Broker's effort to obtain the Seller's approval, it is understood that this offer is irrevocable for 7 days from the date hereof, and if not accepted by the Owner within that time, the deposit shall be returned forthwith to the Purchaser. If the offer is accepted by the Seller, the Purchaser agrees to complete the purchase of said property within the time indicated in Paragraph 7, or forfeit to the Seller the deposit made herein as liquidated damages.’

In plaintiff's acceptance, it is stated: ‘If the deposit money is forfeited for nonperformance by Purchaser, the Seller agrees that one-half of such deposit shall be paid to the Broker (not exceeding the amount of commission) for services rendered.’

Defendant refused to complete the sale, whereupon plaintiff filed a bill for specific performance. Defendant, in his answer moved for dismissal of the bill of complaint, contending that under the terms of the agreement he had an option either to complete the purchase or else to forfeit his $1,000 deposit as liquidated damages. The trial judge denied the motion to dismiss in accordance with a written opinion which he filed. Almost two months later, defendant filed a motion to amend his answer to include allegations that the contract was procured by fraud and misrepresentation. The proposed amendment was as follows: ‘Further answering said Bill of Complaint, defendant says that when he inspected said land prior to making an offer to purchase it, plaintiff informed him that approximately three acres of the area enclosed by the fence being a strip of land ten rods in width, had been conveyed to a public utility company; that he inquired of plaintiff the location of the strip so conveyed; that plaintiff represented to defendant that the strip so conveyed was off the east boundary of the land; and that in fact the strip so conveyed ran through the area fenced and commonly known as 1007 Rose Center Road, and divided it into two parcels, detracting materially from the usefulness and value of the land.’

The court ruled that the motion to amend came too late; that defendant could not first affirm the contract and seek to avoid liability thereon by forfeiting his deposit money, and then, after an adverse decision, disaffirm the contract on the ground of fraud and misrepresentation.

Defendant thereupon indicated that he had no other defenses, and a decree was entered by the trial judge granting plaintiff specific performance of the agreement.

Under the statute, trial courts have the power to allow amendments to pleadings for the furtherance of justice. 3 Comp.Laws 1929, § 14144. Whether or not an amendment may be allowed rests in large measure in the discretion of...

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11 cases
  • Fletcher v. United States
    • United States
    • U.S. District Court — Northern District of Indiana
    • December 14, 1967
    ...will be performed — payment of liquidated damages is not the "price" for the privilege of non-performance. In Randall v. Douglass, 321 Mich. 492, 32 N.W.2d 721 (1948), the seller was permitted to maintain an action for specific performance. Seller had accepted an offer which provided that b......
  • Jackson City Bank & Trust Co. v. Blair
    • United States
    • Michigan Supreme Court
    • April 1, 1952
    ...justice, and whether or not the amendment may be allowed rests in a large measure in the discretion of the trial judge. Randall v. Douglass, 321 Mich. 492, 32 N.W.2d 721. During the trial or hearing, only those amendments should be allowed which do not work to the surprise or disadvantage o......
  • Hardaway Auto Owners Ins. Co., Intervenor v. Consolidated Paper Co.
    • United States
    • Michigan Supreme Court
    • March 19, 1962
    ...N.W.2d 161; Standard Oil Co. v. Riddell, 267 Mich. 375, 255 N.W. 212; Berston v. Gilbert, 180 Mich. 638, 147 N.W. 496; Randall v. Douglass, 321 Mich. 492, 32 N.W.2d 721; Grant v. National Manufacturer & Plating Co., 258 Mich. 453, 243 N.W. 21; Simonelli v. Cassidy, 336 Mich. 635, 59 N.W.2d ......
  • Schattilly v. Yonker, 37
    • United States
    • Michigan Supreme Court
    • February 28, 1957
    ... ... Mich. Court Rule No. 25 (1945); C.L.1948, § 616.1, Stat.Ann. § 27.838; Randall v. Douglass, 321 Mich ... 492, 32 N.W.2d 721; Jackson City Bank & Trust Co. v. Blair, 333 Mich. 399, 53 N.W.2d 493, 32 A.L.R.2d 920. Since the ... ...
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