Maxey v. Proctor, 11
| Decision Date | 03 October 1955 |
| Docket Number | No. 11,11 |
| Citation | 343 Mich. 453,72 N.W.2d 198 |
| Parties | Robert MAXEY and Louise Maxey, his wife, Plaintiffs and Appellants, v. Clarence PROCTOR and Ruth Proctor, his wife, Charies J. Merrill and Paul E. Threm, d/b/a Merrill-Threm Company, Defendants and Appellees. |
| Court | Michigan Supreme Court |
Moll, Desenberg, Purdy & Glover, Detroit, for plaintiffs and appellants.
Frederick Van Fleteren, St. Clair Shores, for defendants and appellees, Clarence N. Proctor and Ruth Proctor, his wife.
John C. La Fata, Detroit, for defendants and appellees, Charles J. Merrill and Paul E. Threm, d/b/a Merrill-Threm Company.
Before the Entire Bench.
This is an appeal from a judgment of no cause of action entered October 11, 1954, wherein plaintiffs brought an action to recover a deposit of $1,000 which accompanied an offer to purchase a residence owned by the defendants, Mr. and Mrs. Rpoctor. The offer was submitted through the real estate firm of Merrill-Threm Company, also a defendant in this case.
The essential facts are as follows: In June of 1951 plaintiffs were interested in purchasing a house. They saw a house owned by defendants, Mr. and Mrs. Proctor. A Mr. Girard, salesman for defendant Merrill-Threm Company, showed plaintiffs the house. After some preliminary negotiations were had, plaintiffs signed an offer prepared by Merrill-Threm to purchase the house. The offer provided in part as follows:
'The undersigned hereby offers and agrees to purchase the following land situated in the City of St. Clair Shores, Macomb County, Michigan, described as follows: * * * being known as 21832 O'Connor Street, together with all improvements and appurtenances, including all lighting fixtures, shades, venetian blinds, curtain rods, storm windows and storm doors, screens and awnings, if any, now on the premises, and to pay therefor the sum of Twenty Thousand and Five Hundred ($20,500) Dollars, subject to the existing building and use restrictions, easements and zoning ordinances, if any, upon the following conditions:
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'Payment of the sum of Five Thousand ($5,000.00) Dollars in cash or certified check, and the execution of a Land contract upon the Burton Abstract and Title Co. form, acknowledging payment of that sum and calling for the payment of the remainder of the purchase money within * * * years from the date of Contract in monthly payments of not less than * * * Dollars each, which include interest payments at the rate of * * * per cent per annum, and which (do) (do not) include prepaid taxes and insurance.
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'The Broker is hereby authorized to make this offer and the deposit of One Thousand ($1,000) Dollars may be held by him under Rule 5 of the Michigan Corporation Securities Commission Rules and Regulations and applied on the purchase price if the sale is consummated, or at his option deliver the deposit to the Seller upon the acceptance of this offer.
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Defendants, Mr. and Mrs. Proctor, accepted plaintiffs' offer. About three weeks after the offer was accepted, plaintiffs were informed by Girard that the deal was off because Mr. and Mrs. Proctor could not obtain a mortgage and the only way it could be handled would be for the plaintiffs to obtain a mortgage and give the Proctors a second mortgage for their equity and to supply a bond that plaintiffs would go through with the second mortgage. Plaintiffs were willing to complete the transaction on that basis. However, at a later date defendants, Mr. and Mrs. Proctor, offered to deed the property to plaintiffs to enable them to get a $11,000 mortgage on the property. After plaintiffs obtained this mortgage they were to reconvey the property back to the Proctors and take back a land contract and execute...
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