Landskroener v. Henning

• Decision Date: 05 February 1923
• Docket Number: No. 71.,71.
• Citation: 221 Mich. 558,191 N.W. 943
• Parties: LANDSKROENER et ux. v. HENNING et al.
• Court: Michigan Supreme Court

221 Mich. 558

191 N.W. 943

LANDSKROENER et ux.

v.HENNING et al.

No. 71.

Supreme Court of Michigan.

Feb. 5, 1923.

Appeals from Circuit Court, Saginaw County, in Chancery; Ernest A. Snow, Judge.

Bill by William C. Landskroener and wife against Mrs. Gustina Henning and others, in which Albert C. Welzeihn and another, co-partners doing business as Welzeihn & Schulz, filed a cross-bill. From a decree dismissing the bill and cross-bill, plaintiffs and defendants Welzeihn & Schulz appeal. Affirmed.

Argued before FELLOWS, C. J., and WIEST, McDONALD, BIRD, SHARPE, and STEERE, JJ. O'Keefe & O'Keefe, of Saginaw, for plaintiffs, appellants.

Frank A. Rockwith, of Saginaw, for defendants, appellants.

Robert J. Curry, of Saginaw (Cook & Cook, of Saginaw, of counsel), for appellee Henning.

FELLOWS, C. J.

This bill is filed for specific performance based on two writings known in the record as Exhibits A and B. Exhibit A is as follows:

‘Name of owner-Mrs. Chris Henning.

‘Address-1452 Genesee Avenue.

‘Description of property: Brick building, 26x72 ft. 8 rooms upstairs, copper bath tub.

‘Lot Gen. 150 ft. Holland 235, including blacksmith shop.

+-----------------------------------+
                ¦Rent                ¦$10¦$5,800 net¦
                +--------------------+---+----------¦
                ¦Store               ¦$50¦to owner  ¦
                +--------------------+---+----------¦
                ¦                    ¦$60¦          ¦
                +--------------------+---+----------¦
                ¦15 up               ¦   ¦          ¦
                +--------------------+---+----------¦
                ¦35 down Ass. $4,500.¦   ¦          ¦
                +--------------------+---+----------¦
                ¦Sale price $-----   ¦   ¦          ¦
                +-----------------------------------+
                

‘Terms of sale: $2,000 down.

‘Welzeihn & Schulz, of Saginaw, Michigan, in consideration of their listing said property and endeavoring to find a purchaser therefor, are granted the exclusive right to sell the same until 1st July, 1919, and said Welzeihn & Schulz are authorized to sell said property at the price, or prices, above named. In case of sale at the above-named price and terms or at such other price and terms as may be agreed upon, said Welzeihn & Schulz shall retain or receive any amount exceeding five thousand eight hundred dollars. I agree to furnish abstract, tax history and merchantable title.

‘Dated Saginaw, Mich., April 30, 1919.

‘Signature: Mrs. Chr. Henning. [Seal.]

‘In presence of:

________

‘________’

Exhibit B is as follows:

‘Saginaw, Mich., May 12, 1919.

‘Received of William C. Landskroener $100, being earnest money on the purchase of store building and land located on the southwest corner of Holland and Genesee avenues, better described as follows: A parcel of land in the S. E. 1/4 of section 30, town 12 north, range 5 east, described as follows: commencing on the S. W. corner of Genesee and Holland avenues, running thence west along the south line of said Holland avenue, 235.33 feet, thence south at right angles to said Holland avenue 135 feet, thence east on a line parallel with Holland avenue 301.12 feet to the west line of Genesee avenue, thence northerly along the west line of Genesee avenue 150.16 feet to the place of beginning. Owned by Mrs. Christ Henning. Sale price to be $6,500 payable as follows: $2,200 upon execution and delivery of a land contract, balance in payments of $300 a year, this amount to include the interest at 6 per cent. per annum.

‘Welzeihn & Schulz guarantee to raise $2,000 on my property located at 609 Emily street, to be applied on the purchase price of this property.

‘Mrs. Henning agrees to furnish abstract and tax history showing good merchantable title to said property.

‘Welzeihn & Schulz, Agts.’

It is the claim of the plaintiffs on the facts that defendant Mrs. Henning called Mr. Schulz, of the real estate firm of Welzeihn & Schulz, to her home to arrange for the sale of the property in question; that after some negotiations she agreed to sell at $5,800 giving as commission all sums received over that amount, and that Exhibit A upon one of the firm's forms was then signed by her; that the firm afterwards negotiated a sale to plaintiff William C. Landskroener at $6,500, and he agreed to buy at that figure, made the down payment of $100, and received Exhibit B; and that plaintiff Minnie Landskroener, wife of William C., acquired an interest by assignment. It is their claim on the law that Exhibit A made Weizeihn & Schulz the agents of defendant Mrs. Henning with power to execute a binding contract in her behalf for the sale of the premises, and that Exhibit B was such binding contract which they are entitled to specifically enforce; they having tendered performance on their part. It is their further claim that they are entitled to invoke the doctrine of estoppel upon certain facts which we shall presently detail.

It is the claim of defendant Mrs. Henning on the facts that she did not with knowledge of its contents execute Exhibit A, that she agreed to sell the premises for $8,800 net to her, and that the figures were either read incorrectly to her or have been changed since she signed the paper. It is her claim on the law that Exhibit A did not give Welzeihn & Schulz power to bind her by an executory land contract, and that she is not estopped under the facts to so claim.

Welzeihn & Schulz are made defendants and file an answer in the nature of a cross-bill. Their claim as to the facts and law are in substantial accord with those of plaintiffs. They further insist that they have performed their brokerage agreement and have produced a purchaser ready, willing, and able to take the property on plaintiffs' terms; that they have earned their commission and are entitled to decree for it irrespective of plaintiffs' rights to maintain their action.

The trial judge found the facts to be as contended by defendant Mrs. Henning and dismissed their bill. As to the cross-bill of defendants Welzeihn & Schulz, he held that their remedy was in an action at law and dismissed their cross-bill without prejudice. Plaintiff and Welzeihn & Schulz appeal.

We are constrained to reach a different conclusion on the facts than did the trial judge. We are not persuaded that defendant Mrs. Henning has successfully impeached the written instrument admittedly signed by her. On the contrary, we are persuaded that plaintiffs have established the facts claimed by them by a preponderance of the evidence. This necessitates the consideration of the interesting questions which counsel have submitted for our consideration. First and most important is whether Exhibit A should be construed as a listing agreement alone, or does it carry with it the power to execute a binding contract of sale of the premises in question? The courts of many jurisdictions have had before them for consideration may contracts of varying phraseolgy involving the power of real estate brokers to sign binding contracts. Counsel in the instant case have been most diligent and have brought to our attention numerous decisions. As those cases deal with such a variety of expressions found in the different contracts, we feel it may be helpful to the profession to here list them.

Plaintiffs' counsel call our attention to the following cases: Stuart v. Mattern, 141 Mich. 686, 105 N. W. 35;Seberger v. Wood, 106 Neb. 272, 183 N. W. 363;Haydock v. Stow, 40 N. Y. 363;Peterson v. O'Connor, 106 Minn. 470, 119 N. W. 243,130 Am. St. Rep. 618;Jackson v. Badger, 35 Minn. 52, 26 N. W. 908; Lyons v. Pollock, 99 U. S. 668, 25 L. Ed. 265;Littlefield v. Dawson, 47 Wash. 644, 92 Pac. 428;Johnson v. Dodge, 17 Ill. 433;Vanada v. Hopkins, 1 J. J. Marsh. (Ky.) 285, 19 Am. Dec. 92;Hemstreet v. Burdick, 90 Ill. 444;Hedrick v. Donovan, 248 Ill. 479, 94 N. E. 144;Peabody v. Hoard, 46 Ill. 242;Minor v. Willoughby, 3 Minn. 225 (Gil. 154); Brady v. Fontenot, 132 La. 826, 61 South. 838;Rutenberg v. Main, 47 Cal. 213;Smith v. Allen, 86 Mo. 178;Golden v. Claudel, 85 Kan. 465, 118 Pac. 77;Jasper v. Wilson, 14 N. M. 482, 94 Pac. (N. M.) 951, 23 L. R. A. (N. S.) 982;Combes v. Adams, 150 N. C. 64, 63 S. E. 186; Rosenbaum v. Belson (1900) 2 Chan. (Eng.) 267; Matherson v. Davis, 2 Cold. (Tenn.) 443;Nobleboro v. Clark, 68 Me. 87, 28 Am. Rep. 22;Valentine v. Piper, 22 Pick. (Mass.) 85, 33 Am. Dec. 715;Farnham v. Thompson, 34 Minn. 330, 26 N. W. 9,57 Am. Rep. 59;Hunter v. Eastham (Tex. Civ. App.) 67 S. W. 1080;Bacon v. Davis, 9 Cal. App. 83, 98 Pac. 71;Brown v. Griswold, 109 Wis. 275, 85 N. W. 363;Vermont Marble Co. v. Mead, 85 Vt. 20, 80 Atl. 852;Lee v. Lloyd (1920) 111 Misc. Rep. 405,181 N. Y. Supp. 295;Canada et al. v. Casey (1895) 14 Misc. Rep. 322,35 N. Y. Supp. 1054;Stirn v. Hoffman House Co. (1894) 8 Misc. Rep. 246,28 N. Y. Supp. 724.

Counsel for Mrs. Henning call out attention to the following cases: Coleman v. Garrigues, 18 Barb. 60;Gorsuch v. Berman, 270 Pa. 8, 112 Atl. 750;Yadwin v. Arnold (N. J. Err. & App.) 110 Atl. 903;Morris v. Ruddy, 20 N. J. Eq. 236;Marsh v. Buchan, 46 N. J. Eq. 595, 22 Atl. 128;Lindley v. Keim, 54 N. J. Eq. 418,34 Atl. 1079;Stengel v. Sargeant, 74 N. J. Eq. 20, 68 Atl. 1106;Carr v. Mazon Est., 26 N. M. 308,191 Pac. 137;Craig v. Parsons, 22 N. M. 293, 161 Pac. 1117;Jasper v. Wilson, 14 N. M. 482, 94 Pac. 951,23 L. R. A. (N. S.) 982;Stark v. Rogers, 69 Colo. 98, 169 Pac. 146;Buckingham v. Harris, 10 Colo. 455, 15 Pac. 817;Johnson v. Lennox, 55 Colo. 125, 133 Pac. 744; Springer v. City Bank, 59 Colo. 376, 149 Pac. 253, Ann. Cas. 1917A, 520;Brown v. Hogan, 138 Md. 257, 113 Atl. 756;Slater v. Rauer, 43 Cal. App. 748, 185 Pac. 864;Duffy v. Hobson, 40 Cal. 240, 6 Am. Rep. 617;Armstrong v. Lowe, 76 Cal. 616, 18 Pac. 758;Church v. Collins, 18 Cal. App. 745, 124 Pac. 552;Salter v. Ives, 171 Cal. 790, 155 Pac. 84;Thompson v. Scholl, 32 Cal. App. 4, 161 Pac. 1006;McDermott v. Drumm, 96 Conn. 670, 115 Atl. 476;McCullough v. Hitchcock, 71 Conn. 401, 42 Atl. 81;Donnan v. Adams, 30 Tex. Civ. App. 615, 71 S. W. 580;Gould v. Rockwell, 105 Neb. 724, 181 N. W. 655;Lichty v. Daggett, 23 S. D. 380, 121 N. W. 862;Halsey v. Monteiro...