Foshee v. Krum

• Decision Date: 06 March 1952
• Docket Number: No. 30,30
• Parties: FOSHEE v. KRUM.
• Court: Michigan Supreme Court

Page 358

52 N.W.2d 358

332 Mich. 636

FOSHEE v. KRUM.

No. 30.

Supreme Court of Michigan.

March 6, 1952.

McMahon & Cook, Lowell (Margaret Cook, Grand Rapids, of counsel), for appellant.

Linsey, Shivel, Phelps & Vander Wal, Grand Rapids, for appellee.

Before the Entire Bench.

BUTZEL, Justice.

Plaintiff and appellee, Dr. J. Chinton Foshee, filed a bill for specific performance of a contract for the purchase of an 80-acre farm from Delbert D. Krum, defendant and appellant, vendor.

Plaintiff is a practicing physician and surgeon in Grand Rapids and has a summer home in Ada, Kent county, Michigan, not far from the 80-acre farm of defendant in the adjoining township of Vergennes in the same county. Plaintiff had previous business dealings with defendant as he had rented a portion of the farm for the raising of crops and for pasturing his herd of Jersey cattle. There had been a number of conversations between the parties in regard to the purchase of the farm by plaintiff. An old orchard on the farm had been neglected for years and was practically worthless; the outbuildings and barn were of almost no value and the home of defendant appeared in disrepair and badly needed a coat of paint and other repairs. The land itself was in reasonably fair condition.

Some time prior to the execution of the contract of sale, defendant was seriously ill with an infection in his toe. Plaintiff attended him as doctor and surgeon; gangrene had set in and it looked for a while as if defendant would lose part of the leg. Only the toe and a small part of the foot were amputated and plaintiff was justly given credit by defendant, as well as by others, for saving the remainder of the foot and leg. Defendant was very appreciative, as was only natural under the circumstances.

Defendant offered to sell the farm while still in the hospital and discussion about the sale of the farm was resumed while defendant was in a convalescent home following the operation. The parties agreed to the sale and purchase of the farm for $8,000. An attorney was required to draw up the agreement and plaintiff suggested attorney Shivel of Grand Rapids. Mr. Shivel had lived for many years at Lowell, Michigan, not far from defendant's farm. Defendant knew him very well, regarded him most highly and was very agreeable to the suggestion that he be employed. Mr. Shivel's firm had previously done some work for plaintiff and represents plaintiff in the present action. Plaintiff called him by telephone about noon and spoke to a member of the firm who prepared a contract of purchase at once. Mr. Shivel brought it to the convalescent home later in the afternoon.

Mr. Shivel had nothing whatsoever to do with making the sale or its terms. As a matter of fact, he acted more as a scrivener, and it is not claimed that he exercised any influence over defendant. The contract was very simple, plain, unambiguous and readily understandable. It described the property, and stated the price of $8,000 of which $500 was to be paid down and the balance to be paid after Mr. Shivel had received an abstract and rendered his opinion that defendant had a marketable title. The contract further contained a clause, not unusual in a contract to sell real estate, to the effect that if title was found not to be marketable defendant was to return the $500 to plaintiff. No other damages were stipulated. The contract contains a few other provisions which are not material to the issue. Defendant read the contract and it was read by Mr. Shivel to the defendant. Plaintiff called attention to the fact that in addition to the $8,000 it had been agreed that defendant was to have the use of the first floor of the house for life, plaintiff obligating himself for its upkeep and the taxes. This was written into the contract before it was signed, and then witnessed by the matron of the convalescent home and by Mr. Shivel. The $500 was paid and the defendant seemed very happy over the sale and expressed his pleasure to several people.

There had been some provious conversation between the parties about defendant going to Florida as the condition of his foot was such that it was improbable that he could ever work the farm again. Plaintiff advised him to go to Florida for the winter months and gave him the name of a party at whose resort or home he could stay for a reasonable sum. Defendant claimed that plaintiff had told him he would die if he did not go to Florida. However, this was uncorroborated and the trial court found that plaintiff did no more than make a friendly suggestion. It appears that previously defendant had discussed Florida with other persons and was enthusiastic about the possibilities of staying there.

The record leaves no doubt but that the price paid for the farm was adequate. Defendant's son, himself a disappointed prospective buyer, stated that the property was worth between $8,000 and $9,000. With $8,000 plus a life interest in the home for defendant, together with its upkeep and payment of taxes by plaintiff, the total purchase price was considerably more than $8,000. From all the testimony, therefore, we conclude that plaintiff's offer was a fair one and there was no overreaching of any kind.

Some days after he entered into the contract, defendant notified plaintiff that he would not go ahead with the deal. He claims that when he read the clause stating that $500 would be returned to the purchaser he thought it meant that he also could the deal off upon the return of the $500 if he changed his mind. The contract does not so state, not is there anything in it that would suggest this right. There was no discussion to this effect and defendant does not claim that Mr. Shivel misled him about the effect of the contract. If the title were found to be marketable he undoubtedly could have held plaintiff for damages for refusal to complete the purchase.

Many witnesses testified as to the mental competency of defendant. It is fully shown that he was able to understand exactly what he was doing and we find no undue advantage taken of him. The question of the sale of the property had been a question under consideration by defendant for a long time. Defendant himself on the witness stand testified that he had confidence in Mr. Shivel and stated in the strongest terms that he regarded the plaintiff as an honest man who had not practiced any deception. We cannot, therefore, on a review of the record find evidence of a scintilla of undue influence, fraud, misrepresentation, or inadequacy of consideration.

It appeared also that plaintiff will suffer some herdship if this contract is not enforced, for he alleges that upon entering into the contract, he lost the opportunity he had of renting another farm to pasture his cattle and he required the farm which he had purchased from defendant for that purpose.

At the hearing, another element entered into the case. Defendant for a time had been receiving old age assistance from the State of Michigan. It amounted to $50 a month. In accordance with C.L.1948, § 400.27, Stat.Ann. § 16.427, he would lose the assistance if he owned tangible or intangible personal properties having a market value in excess...