Boelter v. Blake

• Decision Date: 29 December 1943
• Docket Number: No. 75.,75.
• Citation: Boelter v. Blake, 307 Mich. 447, 12 N.W.2d 327 (Mich. 1943)
• Parties: BOELTER et ux. v. BLAKE et ux.
• Court: Michigan Supreme Court

307 Mich. 447

12 N.W.2d 327

BOELTER et ux.

v.BLAKE et ux.

No. 75.

Supreme Court of Michigan.

Dec. 29, 1943.

Suit by Royal Boelter and Bernice Boelter, his wife, against Marion A. Blake and Virginia Blake, his wife, for specific performance of an option to buy a dwelling house.Decree for plaintiffs, and defendants appeal.

Affirmed.

Appeal from Circuit Court, Wayne, County, in Chancery; Clyde I. Webster, Judge.

Before the Entire Bench.

Max N. Freeman and Milton Roberts, both of Detroit, for plaintiffs and appellees.

Victor H. Wehmeier, of Detroit, for defendants and appellants.

NORTH, Justice.

This is a suit in equity for specific performance of an option to buy a dwelling house.Plaintiffs obtained a decree in the circuit court, and defendants appeal.

On October 3, 1940, Marion A. Blake and Virginia Blake, his wife, owned by the entireties numerous small homes in Detroit, including a six-room house at 19434 Cherrylawn Avenue in which they were then living.The plaintiffs were tenants living in another dwelling owned by the defendants.After some preliminary negotiations, Mr. and Mrs. Boelter inspected the Cherrylawn Avenue property, and the terms of its sale were agreed upon with Mr. Blake.It was orally agreed that at the end of one year the plaintiffs would purchase the Cherrylawn Avenue place for $3,500, and during the year would pay $40 per month, $30 of which amount would be considered rent and $10 of which ($120 at the end of the year) would be appliedon the down payment.Plaintiffs were also obliged by the agreement to pay $300 as the balance of the down payment to the defendants at the end of the year if the option to purchase was exercised.The balance of the $3,500 was to be paid at the rate of $30 per month, which payments included taxes and insurance.On October 4, 1940, the plaintiffs paid to Mr. Blake $10 to close the deal and received a receipt therefor which Mr. Blake testified should have read ‘$10.00 and $30.00 when house is ready.Option for rent at 19434 Cherry-lawn.’It is denied that Mrs. Blake took part in this oral agreement although Mrs. Boelter testified that Mrs. Blake was present and took part in the conversation.

Plaintiffs obtained possession of the dwelling on October 24, 1940, and still occupy the premises.In November 1940plaintiffs made the payment of $40; and on December 2, 1940 Mr. Blake gave Mr. Boelter a written option to purchase embodying the terms of the oral agreement but signed by himself only, and also a receipt for the rent then due in the form of two receipts, one for $30 and one for $10.Both before and after moving into the house, plaintiffs made alterations and repairs in the way of wiring, decorating and so on.Subsequent payments were made by plaintiffs for which similar tworeceipt forms were given.Mrs. Blake herself signed and gave plaintiffs such a receipt for the payment made April 19, 1941.At the end of the year plaintiffs desired to exercise the option.Defendants refused to complete the transaction.Plaintiffs made tender of the $300 down payment and later paid this sum into court pending the outcome of the case.

The plaintiffs have fully performed their part of the bargain.Mr. Blake signed the option.However, Mrs. Blake, as one of the owners by the entireties, did not sign the option and normally this failure on her part would be a fatal defect in the option, bringing it under the Statute of Frauds.Comp.Laws 1929, § 13413(Stat.Ann. § 26.908).It is a well-recognized rule that part performance of a contract may take it out of the statute.SeeComp.Laws 1929, § 13415(Stat.Ann. § 26.910).The sole question here is as to whether or not there has been such part performance as to permit a decree of specific performance against her.We approve the decision of the trial judge that there was such part...