Williams v. DeMan
| Decision Date | 13 June 1967 |
| Docket Number | No. 3,Docket No. 2284,3 |
| Citation | 151 N.W.2d 247,7 Mich.App. 71 |
| Parties | Dale L. WILLIAMS, Plaintiff-Appellant, v. David DeMAN and Lucille DeMan, Defendants-Appellees, and John R. Achterhoff, Intervening Defendant-Appellee |
| Court | Court of Appeal of Michigan — District of US |
Harold M. Street, Poppen, Street & Sorensen, Muskegon, for appellant.
George D. Stribley, Muskegon, for Lucille DeMan.
Jack M. Crimm, Muskegon, for David DeMan.
Robert L. Forsythe, Muskegon, for John R. Achterhoff.
Before FITZGERALD, P.J., and BURNS and QUINN, JJ.
Plaintiff appeals a summary judgment for defendants. Plaintiff's complaint alleged that on February 10, 1966, defendant David MeMan accepted plaintiff's offer to purchase a parcel of property owned by David DeMan and Lucille DeMan as tenants by the entireties. By the terms of this offer the sellers were designated as 'David DeMan and Lucille DeMan, husband & wife hereinafter called the Seller.' The offer also contained the following provisions:
'The Purchaser does further agree to give * * * the Realtor, until 11:59 P.M. on February 24th, 1966 to secure the Seller's written acceptance of this offer to purchase, which, when duly signed by the Seller, shall constitute a binding contract of sale between the Purchaser and the Seller.'
Defendant Lucille DeMan near joined with her husband in signing and thereby accepting this offer. However, plaintiff alleged that on April 1, 1966, Mrs. DeMan finally agreed to sell the property to plaintiff in accordance with a second offer to purchase. This second written offer also identified Mr. and Mrs. DeMan as the 'Seller' but differed substantially from the aforementioned offer in regard to possession, total consideration and terms of financing. This offer gave the realtor until 11:59 p.m. on April 4, 1966, to secure the 'Seller's' written acceptance. David DeMan's written acceptance was never obtained. Plaintiff's complaint incorporated both offers to purchase by reference and prayed for specific performance 'in keeping with the aforesaid agreements' or, in the alternative, damages for breach of contract.
David and Lucille DeMan answered separately, but both denied the validity of the purchase agreements because of the absence of his or her spouse's signature. Furthermore, Mr. and Mrs. DeMan admitted having executed an agreement to sell the property to another person, that person being John R. Achterhoff, who was subsequently permitted to intervene as a matter of right, pursuant to GCR 1963, 209.1. Plaintiff replied to the intervening defendant's answer by alleging that he (Achterhoff) had wrongfully procured a breach of plaintiff's contract.
All of the defendants moved for a summary judgment under GCR 1963, 117. Summary judgment was entered because 'plaintiff's complaint does not set forth a cause of action for which relief can be granted for the reason that the complaint shows on its face that there is no contract between the plaintiff and the defendants David and Lucille DeMan.' 1
On appeal plaintiff recognizes that neither spouse, acting alone, can convey or contract to convey to a third person property held as tenants by the entireties. Way v. Root (1913), 174 Mich. 418, 140 N.W. 577; French v. Foster (1943), 307 Mich. 361, 11 N.W.2d 920; Bailey v. Grover (1927), 237 Mich. 548, 213 N.W. 137. Nevertheless, he asserts that spouses owning real estate as tenants by the entireties may contract to convey such real property by executing separate contracts running to the same grantee, and in support of this argument plaintiff cites Branch v. Polk (1895), 61 Ark. 388, 33 S.W. 424, 30 L.R.A. 324, 54 Am.St.Rep. 266. The Appellate Courts of Michigan have not passed on the effect of such a transaction, nor even on the effect of 2 separate deeds executed by the respective spouses to the same grantee. We find no necessity to delve into this question at this time because of the nature of the 2 separate 'contracts'; i.e., the terms of the 'offers' differed substantially and the time specified to obtain acceptance by the tenants by the entireties had expired without both spouses affixing their signatures to the alleged agreement. Under these circumstances appearing from the pleadings, the circuit judge could not have ordered specific performance. Way v. Root, supra; Bailey v. Grover, supra.
Notwithstanding the impossibility of specific performance, plaintiff claims that the partially accepted offers entitle him to recover damages for breach of contract, and that, therefore, the judge erred in granting the motions for summary judgment. A similar approach was argued in Rothstein v. Weeks (1923), 224 Mich. 548, 195 N.W. 49. On ...
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Northern Plumbing & Heating, Inc. v. Henderson Bros., Inc.
...but it is clear that not everyone that plaintiff would call in the trial was heard from at this hearing.2 Williams v. De Man, 7 Mich.App. 71, 151 N.W.2d 247 (1967), did not deal specifically with the statute of frauds question. The court there found that, in fact, no contract existed and he......
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...of a contract between the parties, because one cannot recover damages for breaching a contract that never existed. Williams v. DeMan, 151 N.W.2d 247, 250 (Mich.Ct.App.1967); see also Kamalnath v. Mercy Memorial Hosp. Corp., 487 N.W.2d 499, 503-04 (Mich.Ct.App.1992) (and cases collected ther......
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...Defendant relies on Fields v. Korn, 366 Mich. 108, 113 N.W.2d 860 (1962), Berg-Powell Steel Co., supra, and Williams v. De Man, 7 Mich.App. 71, 151 N.W.2d 247 (1967), for authority that plaintiffs cannot recover damages because the contract is void under the statute of In Fields, our Suprem......