Wilhelm v. Denton

• Decision Date: 04 April 1978
• Docket Number: Docket No. 77-2442
• Parties: Leora WILHELM, Plaintiff-Appellant, v. Arthur T. DENTON and Linda C. Denton, Defendants-Appellees. 82 Mich.App. 453, 266 N.W.2d 845
• Court: Court of Appeal of Michigan — District of US

Page 845

266 N.W.2d 845

Leora WILHELM, Plaintiff-Appellant, v. Arthur T. DENTON and Linda C. Denton, Defendants-Appellees.

Docket No. 77-2442.

82 Mich.App. 453, 266 N.W.2d 845

Court of Appeals of Michigan.

April 4, 1978.

Released for Publication June 27, 1978.

[82 MICHAPP 454] Richard H. Scholl, Petoskey, for plaintiff-appellant.

Dean D. Burns, Petoskey, for defendants-appellees.

Before DANHOF, C. J., and KELLY and T. M. BURNS, JJ.

PER CURIAM.

Plaintiff brought this action for specific performance of a written contract to sell realty. The trial court granted summary judgment to the defendants, holding that plaintiff, the vendor, would have an adequate remedy at law and that since the property had not been resold a suit for damages was premature. The trial court had earlier refused plaintiff's request to amend her complaint to include declaratory relief to control the resale of the property to avoid problems of mitigation of damages. Plaintiff appeals and we reverse.

This case calls for application of well-settled principles. The vendor in a contract involving land may be entitled to specific performance in an appropriate case. Pearson v. Gardner, 202 Mich. 360, 168 N.W. 485, L.R.A.1918F, 384 (1918); Coleman v. Larsen, 243 Mich. 618, 220 N.W. 670 (1928); 71 Am.Jur.2d, Specific Performance, § 115. The adequacy of a remedy at law is not a bar to specific performance where the contract involves realty. Janiszewski v. Shank, 230 Mich. 189, 193, 202 N.W. 949 (1925); Brin v. Michalski, 188 Mich. 400, 405-[82 MICHAPP 455] 406, 154 N.W. 110 (1915); Lutz v. Dutmer, 286 Mich. 467, 482-483, 282 N.W. 431 (1938).

The grant of specific performance is within the discretion of the trial court and cannot be demanded as a matter of right. However, when the subject of the contract is the sale of land, specific performance may not be arbitrarily refused, and in the exercise of sound judicial discretion should be granted, in the absence of some showing that to do so would be inequitable. Foshee v. Krum, 332 Mich. 636, 52 N.W.2d 358 (1952); Hager v. Rey, 209 Mich. 194, 176 N.W. 443 (1920).

Since the judgment below was entered on cross-motions for summary judgment, the record is not sufficient to allow us to order specific performance. It does show, however, that the reasons given by the trial court for denying specific performance are erroneous. We therefore vacate the judgment and remand for the taking of proofs on plaintiff's complaint.

This disposition renders...