Coleman v. Larsen

• Decision Date: 24 July 1928
• Docket Number: June Term.,No. 44,44
• Citation: 243 Mich. 618,220 N.W. 670
• Parties: COLEMAN v. LARSEN et al.
• Court: Michigan Supreme Court

243 Mich. 618

220 N.W. 670

COLEMAN

v.LARSEN et al.

No. 44, June Term.

Supreme Court of Michigan.

July 24, 1928.

Appeal from Circuit Court, Grand Traverse County, in Chancery; Parm C. Gilbert, Judge.

Suit by John A. Coleman against Axel M. Larsen and James J. Fagan, copartners doing business under the firm name of J. J. Fagan & Co. Decree for the plaintiff, and the defendants appeal. Affirmed.

Argued before FEAD, C. J., and NORTH, FELLOWS, WIEST, CLARK, McDONALD, POTTER, and SHARPE, JJ.Joseph T. Riley, of Muskegon, for appellants.

George H. Cross, of Muskegon (John J. Tweddle, of Traverse City, of counsel), for appellee.

SHARPE, J.

The plaintiff, a resident of Kalamazoo, is the owner of a tract of land consisting of 143 acres, which has a frontage of about 1,500 feet on Elk Lake, in the county of Grand Traverse. The defendants are real estate brokers at Muskegon. In February, 1926, they maintained a branch office at Traverse City, of which their agent, E. S. Anderson, had charge. On February 15, 1926, plaintiff gave Anderson as such agent a three days' option to purchase this property for the sum of $2,800 in cash and the assumption of a mortgage thereon of $2,700. On the 17th he and Anderson went to look at the land. It was then covered with from 18 to 24 inches of snow. The water in the lake was frozen. On their return to Traverse (City, Anderson prepared, and plaintiff signed, the following:

‘Feb. 17, 1926.

‘In consideration of one hundred dollars ($100.00) which is to be held in escrow at the Traverse City State Bank of Traverse City, Michigan, I agree to place a deed proprerly executed describing that parcel of land known as the northeast fractional quarter of section 26, township 28 north, range 9 west, containing one hundred forty-three (143) acres of land more or less, according to the United States survey thereof, and abstract showing a merchantable title, in the same above-mentioned bank on the following conditions: As soon as abstract has been approved by the attorneys of J. J. Fagan & Co. of Muskegon, Michigan, that they will deliver to said bank an additional twenty-seven hundred dollars ($2,700.00) and assume a certain mortgage now against the property in the amount of twenty-seven hundred dollars ($2,700.00). Which comes due and payable April 10, 1928.

[Signed] John A. Coleman.'

This writing and the $100 in cash were then deposited in the bank named therein. A few days thereafter, a warranty deed to the defendants was executed by plaintiff and his wife and deposited in the bank, together with an abstract of title to the property. The abstract was forwarded to defendants and submitted by them to their attorneys, who, in a letter to them, made some objections to the sufficiency of the title as revealed therein. On March 2, 1926, defendants wrote plaintiff, calling attention to the defects pointed out by their attorneys, and inclosing a blank affidavit covering one of them. They wrote him again on March 8th, saying that they had written the mortgagee, who was threatening foreclosure, saying:

‘I wrote her and told her that we were purchasing it, and asked her not to do anything until we had the title straightened out.'

They wrote again on March 13th:

‘As soon as you have the title straightened out as per my previous letter, we will be ready to close the deal with you on your property, as I informed you before.'

Further correspondence relative to the abstract followed. The interest due the mortgagee was arranged for by defendants. On September 2d, defendants wrote plaintiff, saying that as Anderson had not signed the written memorandum left at the bank there was ‘no agreement’ to purchase on their part. On September 9th, they wrote, declining to proceed with the deal.

On November 22, 1926, plaintiff filed the bill of complaint herein, to which was annexed the correspondence above referred...