Goldberg v. Mitchell

• Court: Michigan Supreme Court
• Writing for the Court: BUTZEL
• Citation: Goldberg v. Mitchell, 318 Mich. 281, 28 N.W.2d 118 (Mich. 1947)
• Decision Date: 27 June 1947
• Docket Number: No. 88.,88.
• Parties: GOLDBERG v. MITCHELL et ux.

318 Mich. 281

28 N.W.2d 118

GOLDBERG

v.MITCHELL et ux.

No. 88.

Supreme Court of Michigan.

June 27, 1947.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Wayne County in Chancery; Arthur Webster, judge.

Suit by Louis Goldberg against Leslie L. Mitchell and Miriam Mitchell, his wife, for specific performance of an alleged agreement to sell realty. From an order denying a motion to dismiss plaintiff's bill of complaint, the defendants appeal.

Order affirmed by divided court.

Before the Entire Bench.

Arthur Mitchell, of Detroit, for appellants.

Earl D. Leader, of Detroit, for appellee.

BUTZEL, Justice.

On a motion to dismiss a bill of complaint, all properly alleged material facts are accepted as true. Hatch v. Wolack, 316 Mich. 258, 25 N.W.2d 191. Plaintiff herein alleges upon information and belief that defendants seek to evade the agreement because they can now obtain a higher price for their property. In Cramer v. Ballard, 315 Mich. 496, 24 N.W.2d 80, 86, Mr. Justice Boyles stated: ‘We are mindful of the fact that this is a case in equity. The statute of frauds exists in the law for the purpose of preventing fraud or the opportunity for fraud, not as an instrumentality to be used in aid of fraud or as a stumbling block in the path of justice.'

In Gault v. Stormont, 51 Mich. 636, 17 N.W. 214, 215, which was an action for forcible entry and detainer brought by the vendor against the vendee, the latter having taken possession without fulfilling his part of the contract, the court held that the memorandum was insufficient under the statute, ‘for though it specified the purchase price, it failed to express the time or times of payment, and there is no known or recognized custom to fix what is thus left undertermined.’ Since the decision in that case and in Ebert v. Cullen, 165 Mich. 75, 130 N.W. 185, 33 L.R.A.,N.S., 84, which was decided on the authority of Gault v. Stormont, supra, the courts have given increasing recognition to the existence of a rule of law that does fix the time and terms of payment in the situation presented in the above cited cases and in the instant case. In view of the recently evidenced disposition of this court to liberalize its interpretation of the statute of frauds (see Cramer v. Ballard, supra;Hatch v. Wolack, supra), and the authorities cited hereinafter, the holding of this court in Gault v. Stormont, supra, should be modified in accordance with the more modern rule. The prevailing rule is that where a memorandum is silent as to when the balance of the purchase price is to be paid, the law implies that it must be paid within a reasonable time and it will be presumed that the sale was for cash, provided that terms of sale, i. e., credit or deferred payments, were not actually agreed upon by the parties. Ullsperger v. Meyer, 217 Ill. 262, 75 N.E. 482, 2 L.R.A.,N.S., 221, 3 Ann.Cas. 1032; Boekelheide v. Snyder et al., S.D., 26 N.W.2d 74; Note (1908) 9 Ann.Cas. 1062; 49 Am.Jur. 666, 667, and cases cited therein. Where, however, the memorandum discloses on its face that there were other terms agreed upon which are not contained in the writing, the memorandum is insufficient to satisfy the requirements of the statute of frauds. Thus in Windiate v. Leland, 246 Mich. 659, 225 N.W. 620, the receipt, as quoted in the opinion of Mr. Justice Sharpe, contained the following provision: ‘payments to begin Nov. 1, 1920,’ indicating beyond any doubt that deferred payments were contemplated. In Rosenbaum v. Tyszka, 192 Mich. 457, 158 N.W. 848, cited by appellants, the memorandum provided: ‘One thousand will be paid before June 15, 1915. Balance $300 and interest.’ In Hilberg v. Greer, 172 Mich. 505, 138 N.W. 201, the written option stated: ‘Purchase price to be five thousand five hundred dollars. Int. 5% easy terms.’ In Webster v. Brown, 67 Mich. 328, 34 N.W. 676, 677, the receipt provided: ‘Said bond is to express the several payments that is (sic) to be made, and the amount remaining to be paid.’ In all of the foregoing cases the receipts or memoranda indicated that there were deferred payments or terms of credit agreed upon which were not contained in the writing. This is not the situation in the instant case. The correct rule is set forth in 49 Am.Jur. 666, 667, wherein it is stated:

‘The omission from the memorandum evidencing a contract of the particular mode or time of payment of the consideration does not necessarily invalidate the contract or render it unenforceable under the statute of frauds. While the view has been taken that the failure to mention the time for paying the balance of the purchase money, in a receipt for a part payment toward the purchase price of real estate, renders the receipt insufficient as a memorandum, irrespective of whether the sale was for cash on delivery of the deed or not, the general rule seems to be that where the memorandum is silent as to when the remainder of the purchase price is to be paid, it will be presumed that the sale was for cash, and the memorandum will not be insufficient for a failure to state the terms of payment provided other terms were not actually agreed upon by the parties. * * *

‘A memorandum of an agreement for the sale of land is not necessarily insufficient to satisfy the requirements of the statute of frauds because the time for performance is not stated therein. In case of an executory contract of sale, where the time for the execution of the conveyance or transfer is not limited, the law implies that it is to be done within a reasonable time, and the failure to incorporate in the memorandum such a statement does not render it insufficient.'

In accord with the above rule, this court has held as follows:

‘An offer to sell land for $375 cash, which is accepted, and $100 paid, and a memorandum given by the vendor agreeing to give a deed upon payment of $275, is an agreement to pay cash within a reasonable time, and sufficiently fixes the time of payment to comply with the statute of frauds.’ Mull v. Smith (syllabus), 132 Mich. 618, 94 N.W. 183.

‘The omission of time of payment and giving possession did not invalidate a memorandum agreement for the sale of land, since the inference is that the vendee will make cash payment within a reasonable time, and that possession will be given when full payment is made.’ Barton v. Molin (syllabus), 219 Mich. 347, 189 N.W. 74.

In Ullsperger v. Meyer, supra [217 Ill. 262, 75 N.E. 483], the memorandum was as follows:

‘Chicago, Jan. 8, 1904.

‘Received of Anton Ullsperger $100 on said purchase of the property No. 1031 Milwaukee Ave., at the price of $14,000.

‘C. Meyer.'

With reference to the sufficiency of the memorandum, the Illinois Supreme Court stated: ‘It is insisted that there is no time specified for the completion of the contract, and that therefore the contract is not complete. Under such a contract the law would imply that it was to be performed within a reasonable time after entering into the same, and what would be a reasonable time would be a matter of proof under all the conditions and circumstances that might surround the case.’ (Citing Illinois cases.)

In Boekelheide v. Snyder et al., supra , the memorandum was as follows:

‘Received of H. H. Boekelheide $50 (fifty dollars) to apply on purchase of house & property of the old Young house. Balance $650.

‘Margaret Snyder.'

Although specific performance was denied on another ground, the court stated:

The next contention of the appellant is that the receipt is insufficient to constitute a contract because it fails to fix the time for payment of the balance of the purchase price. The mere failure to state the time of payment will not defeat specific performance of a contract. Where no time for the completion of the contract is specified the law implies that it is to be performed within a reasonable time. Wayne v. Butterfield, 50 S.D. 463, 210 N.W. 663;Ullsperger v. Meyer, 217 Ill. 262, 75 N.E. 482, 2 L.R.A.,N.S., 221, 3 Ann.Cas. 1032. There are exceptions to this rule, such as the cases in which the parties have agreed upon a period of credit, without fixing its duration, but here there is no contractual provision which indicates that the parties intended to defer the payment of the balance of the purchase price.'

In discussing the sufficiency and general requisites of a memorandum under the statute of frauds, the Restatement, Contracts (1932) § 207(e), Illustration 12, p. 282, states: ‘A and B enter into an oral contract to buy and sell an automobile. A memorandum is made and signed which states sufficiently the parties, subject-matter, and terms of the oral bargain except that, though the parties is fact orally agreed that the price should be payable on delivery of the machine, the memorandum contains no statement as to when the price is payable. The memorandum is sufficient, since the omitted statement is only what the law would imply in such a contract as that stated in the memorandum.'

According to the prevailing rule of law the memorandum receipt in the instant case sufficiently satisfies the requirements of the statute of frauds.

The order of the circuit court denying defendant's motion to dismiss the bill of complaint should be affirmed with costs to plaintiff.

BUSHNELL, REID, and DETHMERS, JJ., concurred with BUTZEL, J.

SHARPE, Justice.

This is an appeal from an order denying a motion to dismiss plaintiff's bill of complaint.

The facts are not in dispute and are as follows: On November 26, 1945, defendants Leslie L. Mitchell and Miriam Mitchell, his wife, were the owners of a parcel of real estate in Detroit, Michigan. On the above date, they entered into an agreement to sell said property to plaintiff, the written memorandum of which is as follows:

‘Nov. 26, 1945

‘Received of Louis Goldberg,

‘Five Hundred ($500.00) deposit on the sale of our home, located at 18948 Wisconsin Avenue, Detroit, Mich. Balance $13,000.

‘(Signed) Leslie L. Mitchell

‘(Signed) Miriam Mitchell

‘Accepted:

‘(Signed) Louis Goldberg.'

On May 16, 1946, plaintiff...