Bruno v. Zwirkoski, Docket No. 61197

• Decision Date: 08 June 1983
• Docket Number: Docket No. 61197
• Citation: 124 Mich.App. 664,335 N.W.2d 120
• Parties: Christine Povilitz BRUNO and Frank L. Bruno, Plaintiffs, v. Thaddeus S. ZWIRKOSKI and Irene G. Zwirkoski, his wife, Defendants and Cross-Plaintiffs-Appellees, and Southfield Public Schools, a Michigan public body corporate, Defendant and Cross-Defendant-Appellant. 124 Mich.App. 664, 335 N.W.2d 120
• Court: Court of Appeal of Michigan — District of US

Page 120

335 N.W.2d 120

Christine Povilitz BRUNO and Frank L. Bruno, Plaintiffs, v. Thaddeus S. ZWIRKOSKI and Irene G. Zwirkoski, his wife Defendants and Cross-Plaintiffs-Appellees and Southfield Public Schools, a Michigan public body corporate Defendant and Cross-Defendant-Appellant.

Docket No. 61197.

124 Mich.App. 664, 335 N.W.2d 120

Court of Appeals of Michigan.

Submitted Dec. 16, 1982.

Decided April 6, 1983.

Released for Publication June 8, 1983.

[124 MICHAPP 666] Condit, McGarry & Schloff, P.C. by Richard P. Condit, Birmingham, for defendants and cross-plaintiffs-appellees Zwirkoski.

Shifman & Goodman, P.C. by Philip J. Goodman, Southfield, for defendant and cross-defendant-appellant Southfield Public Schools.

Before CYNAR, P.J., and KAUFMAN and MacKENZIE, JJ.

PER CURIAM.

This appeal involves a cross-claim by Thaddeus and Irene Zwirkoski against the Southfield Public Schools for specific performance of the terms of an alleged land contract. After a nonjury trial, the circuit court ordered specific performance. The terms of the circuit court's order required the schools to bear half the costs of constructing a certain paved road. The Southfield Public Schools appeal by right.

The evidence introduced at trial showed that, in 1969, the Zwirkoskis agreed to purchase four acres of land owned by the schools and adjacent both to a parcel of land already owned by the Zwirkoskis and to the site of an elementary school. A condition of the sale was the transfer by the Zwirkoskis to the schools of a 30-foot-wide strip of land from a road, across the Zwirkoskis land, to the site of the school. The Zwirkoskis' did not deal directly with the school board, but conducted this transaction through the schools' exclusive land agent, Arthur [124 MICHAPP 667] Stephens. Exhibits submitted to the circuit court showed that Stephens represented to the Zwirkoskis that a 60-foot-wide road would be constructed along the 30-foot-wide strip of the Zwirkoskis' land conveyed to the schools and a strip of the Zwirkoskis' land of equal width, that the road would provide access to the site of the school and to the four acres purchased by the Zwirkoskis, and that the schools and the Zwirkoskis would divide the cost of building the road equally. No written contract was ever executed; however, the evidence showed that at the time of trial possession of the four acres and the 30-foot-wide strip had been transferred, that the Zwirkoskis had paid nearly all of the purchase price of the property, and that the Zwirkoskis had paid taxes on the four acres since 1969.

At trial, the schools took the position that a contract had been made and that they were entitled to retain the benefits they received under the contract but that the terms of the contract did not require them to pay any part of the costs of construction of the road.

The schools argue that Stephens was never authorized to agree on behalf of the schools to pay for the construction of a road. The schools rely on Baker v. Kalamazoo, 269 Mich. 14, 256 N.W. 606 (1934), in which the Court held that persons who deal with a municipal corporation through its officers must ascertain the limits of the authority of the officers and that the corporation is not bound by actions of its officers beyond the limits of their authority. However, the Court noted that a municipal corporation is nevertheless bound if it ratifies unauthorized actions. See also East Jordan Lumber Co. v. East Jordan, 100 Mich. 201 205, 58 N.W. 1012 (1894), and Webb v. Twp. of Wakefield, [124 MICHAPP 668] 239 Mich. 521, 527, 215 N.W. 43 (1927). The circuit court's decision here was based on ratification.

Unauthorized acts of an agent are ratified if the principal accepts the benefits of the unauthorized acts with knowledge of the material facts. David Stott Flour Mills v. Saginaw County Farm Bureau, 237 Mich. 657, 663, 213 N.W. 147 (1927); Langel v. Boscaglia, 330 Mich. 655, 659-660, 48 N.W.2d 119 (1951). The evidence showed that the bid submitted to the schools by the Zwirkoskis was prepared by Stephens and contained the following statement:

"If this offer is accepted, we shall be willing to sell you a 60 ft. roadway at the southernmost end of our acreage known as Cu 430, Section 29. This roadway would run from Kinsel Road to the adjacent school site. You will pay for the roadway the same price per acre as the above bid price, i.e. $10,000 per acre. Further, the sale of the roadway is subject to the following conditions:

" *We would have the right to use said 60 ft. road for ingress and egress to the bid parcel.

" *We would have the right to use said road if we so desired for our Kinsel Road land, in which event we would then pay to the school district half the original total cost of said 60 ft. road.

" *Said 60 ft. road shall be located to provide access to both the four acres being sold and to the adjacent school site."

The minutes of the school board show a decision to accept the bid if modified by provisions including the following:

"b. The school district be allowed to purchase a 30 foot strip of land for use by the Board for access to Kinsel Street, at the price of $10,000.00 per acre. (approximate cost of strip will be $3600.00)

"c. When the property is developed, owner will develop[124 MICHAPP 669] the adjacent 30 foot strip for use as a road, thus making a road 60 feet in width for access to Kinsel Street."

The circuit judge regarded the foregoing as circumstantial evidence of the knowledge on the part of the school board essential to support a finding of ratification. The circuit judge reasoned that if the board did not know of the representations by Stephens that the schools would pay half the cost of...