Gault v. Stormont

• Court: Michigan Supreme Court
• Writing for the Court: COOLEY, J.
• Citation: Gault v. Stormont, 51 Mich. 636, 17 N.W. 214 (Mich. 1883)
• Decision Date: 31 October 1883
• Parties: GAULT v. STORMONT.

17 N.W. 214

51 Mich. 636

GAULT v. STORMONT.

Supreme Court of Michigan

October 31, 1883

A receipt for the payment of part of the purchase price of land, though the amount be stated, is not a sufficient memorandum under the statute of frauds, which requires it to be complete in itself, as to all the terms, and leave nothing to parol, such as the terms and time of payment.

Even were the writing complete as a contract it would not give a right of possession until after complete performance on the part of the vendee.

A complaint alleging that the defendant was in possession and held unlawfully against the plaintiff's right, is sufficient for the facts of this case; section 6697 Comp.Laws, authorizing a complaint in this general form.

Error to Wayne.

Stewart & Galloway, for plaintiff and appellant.

George W. Coomer, for defendant.

COOLEY J.

This is a proceeding for forcible entry and detainer, tried before a commissioner, and appealed to and tried in the circuit court, where the defendant had judgment. From the finding by the circuit judge the following facts appear:

On April 26, 1881, the plaintiff, who resides in the county of Shiawassee, was owner of a house and two lots in Wyandotte which were then occupied by one Sill as tenant. Sill had paid rent up to and including May 1, 1881. On the day first mentioned defendant bargained with plaintiff for the purchase of the place, and they agreed upon $1,050 as the price. Defendant paid $75 down, and plaintiff gave him the following receipt "WYANDOTTE, April 26, 1881.

"Received from George Stormont the sum of seventy-five dollars, as part of the principal of ten hundred and fifty dollars on sale of my house and two lots on corner of Superior and Second streets, in this city.

"DAVID GAULT.

"Witness C.W. THOMAS."

The understanding was that plaintiff should return home and have a deed executed by himself and wife, on receipt of which defendant would pay the balance of the purchase price. There was a further understanding that defendant might take possession of the place at any time when Sill would permit it.

When plaintiff returned home his wife refused to unite with him in the deed, and he thereupon, on the twenty-eighth or twenty-ninth of April, sent the $75 back to Mr. Thomas, to be returned to defendant. Thomas tendered it to defendant, who refused to receive it, and insisted on his right to the lots. Defendant had not at this time obtained possession, but he put a few things into the house by Sill's permission, April 30th, and obtained entire possession on May 7th. On May 9th Thomas again tendered back the $75, and, on defendant refusing to receive it, went away, leaving the money with him. At a subsequent hour of the same day, Thomas tendered to defendant a deed of the lots executed by the plaintiff alone, but this defendant refused to receive. On both these occasions possession of the place was demanded and refused. On July 12th, however, defendant allowed Thomas to take possession, but soon after retook it by force, and still retains it.

The complaint by which these proceedings were...