Bailey v. Grover

• Decision Date: 01 April 1927
• Docket Number: June Term.,No. 2,2
• Citation: 213 N.W. 137,237 Mich. 548
• Parties: BAILEY v. GROVER et ux.
• Court: Michigan Supreme Court

237 Mich. 548

213 N.W. 137

BAILEY

v.GROVER et ux.

No. 2, June Term.

Supreme Court of Michigan.

April 1, 1927.

Appeal from Circuit Court, Oceana County, in Chancery; Joseph Barton, Judge.

Suit by Homer O. Bailey against william F. Grover and wife. Decree for plaintiff, and defendants appeal. Reversed, and bill of complaint dismissed.

Argued before the Entire Bench.

A. S. Hinds, of Shelby, for appellants.

MacDonald & MacDonald, of Muskegon, for appellee.

STEERE, J.

The defendants appeal from a decree granting plaintiff specific performance of an option for the purchase of some lake shore land located in Benona township, Oceana county, Mich. Plaintiff lived in Muskegon, and defendants in Oceana county, apparently not far from the village of Shelby. At the time the option was given, nothing was paid down on it. It reads as follows:

‘Benona, Mich., Oceana Co. 11/19/24. For value received, we hereby give an option to H. O. Bailey, of Muskegon, Mich., for the purchase of our property located in Benona township, Oceana Co., Mich., and described as follows: Lot 3, Sec. 31, Benona township, Oceana Co., Mich. Price $4,000.00. Four thousand. Two thousand cash. Balance, mortgage to run for period of five yrs., on or before, at 6%. This option to run for a period of 60 days from the above date. Above price net to us. [Signed.] W. F. Grover, Elizabeth B. Grover.'

It is agreed that by its terms this option expired January 19, 1925. Plaintiff testified that on January 14, 1925, he notified defendant William Grover by telephone that he was ready to close the deal and in reply to his inquiry Grover told him he had an abstract which he would furnish; that on January 15, 1925, he saw Mr. Churchill, a banker of Shelby in Oceana county, who was his old schoolmate, and whom Grover said was handling his business, and placed $50 with him, stating what it was for and taking his receipt, which reads as follows:

‘Shelby, Mich., January 15, 1925.

‘Received of H. O. Bailey of Muskegon, fifty dollars in cash to apply on the option given Nov. 19, 1924, by W. F. Grover and Elizabeth B. Grover, covering Lot 3, Sec. 31, Benona Tp., you to notify Mr. Grover. $50.00.

‘[Signed] Churchill & Webber, C. L. C.'

This receipt was typewritten, and at the bottom of a carbon copy put in evidence appears the following written with a pen:

‘Jany. 16, 1925. C and W-Get tax history and have abst brot down to date. Use what you need and I will pay you. W. F. Grover.'

On the margin also appears: ‘Ordered abst. Jany. 16, 1925.'

Plaintiff further testified that on January 15, 1925, he called Grover by telephone, told him he had paid $50 earnest money to protect his option, that he would take the property, and as soon as an abstract and tax history were furnished and approved he would place the money in the National Lumberman's Bank at Muskegon and have it forwarded to Grover's bank at Shelby, to which Grover replied that was all right. He though he received the abstract on January 18 or 19, and had them (abstract and tax history) examined ‘around the 20th,’ after which the money was placed in his Muskegon bank with mortgage for deferred payments signed by himself and wife, and they were forwarded to Shelby.

It is also claimed by plaintiff and admitted by the defense that at this time the roads in the vicinity of Shelby were almost impassable because of storms. Plaintiff assigns this as reason for claimed delays on the part of defendants and his own resulting delays. The abstract and tax record were brought down to date and furnished to plaintiff, as he states, somewhere about January 19, 1925.

Grover testified that the first he heard from plaintiff after the option was given on November 19, 1924, was on January 16, 1925, when plaintiff called him up by telephone from Shelby and said he had made up his mind to take the land himself, to which Grover replied: ‘All right.’ Grover went to Shelby the next morning and had the deed drawn up, first asking Mr. Churchill if the money had been left with him, to which he smilingly replied that $50 had been left. He then gave Churchill the abstract with the tax history to bring down to date, and the extension was made so that the papers came back on Saturday afternoon, January 17, and the following Monday plaintiff called him by telephone from Muskegon and asked for a couple of weeks' extension of time on the option, to which Grover replied in the negative, saying that he needed the money right away.

Plaintiff admitted, on cross-examination, that in their telephone conversation he asked for delay, and Grover declined, stating that he was figuring on purchasing some other property and wanted to close the deal up at once, and plaintiff told him his money would be waiting for him at his bank when the deed was produced. Asked on cross-examination:

‘Q. Now, as a matter of fact, Mr. Bailey, isn't it a fact that that $1,950 check or draft you have been talking about was never actually forwarded to the Shelby Bank, or to Churchill and Webber, at Shelby? A. No, sir. It was absolutely forwarded to Churchill and Webber about the time I went to Florida, which I think was around the 22d or 23d, something like that.'

Later, on cross-examination after a recess, he was asked and answered as follows:

‘Q. You know now, do you not, that the $1,950 was never sent to Churchill and Webber's bank by your bank? A. I believe it was not.'

Churchill who was called as a witness by plaintiff testified that the latter called at his place of business after closing hours on January 15, and left $50 with him for Grover, to apply on an option for purchase of some land. He talked with Grover about it the next day and carried out his instructions. On receiving the abstract and tax record brought down to date, he mailed them at once, probably sent them to plaintiff about the 19th. He later received a latter dated January 21, 1925, from the National Lumberman's Bank, stating it held plaintiff's $1,950 to be paid on the deal when the deed, or papers, were sent to it. He had prepared a deed of the property from Grover and his wife to Bailey and his wife, which Grover took for execution, returned with it properly executed, and made a proffer of same before Churchill had received any word from the Muskegon bank, and said of the situation:

‘Mr. Grover wanted to know whether his money was there. I told him I had received nothing but the $50. I have never received any money from Mr. Bailey, or from any one purporting to be Mr. Bailey's agent, upon this deal, except that $50.'

Asked by the court what was done with the $50, he said:

‘It was to be in our vault until such time as they were ready to fulfill the deal. I paid for the abstract and tax history and whatever expense was incurred, out of my own pocket, not out of that. I tried to give the $50 to Mr. Bailey at one time, but he wouldn't take it. He wanted Mr. Grover to take it. It hung around a long time, so I finally mailed him a draft for it. Our books show he didn't cash it though.'

Grover testified that he took the executed deed to Churchill at Shelby on January 21, 1925, and asked if the money was there, to which Churchill replied he had not...