Smith v. Rattray

Fellows, J. On March 19, 1928, plaintiff, as vendee, and defendant, as vendor, entered into a written contract of purchase and sale of the premises located at 1700 Holden avenue in the city of Detroit. The terms of payment were: $10 down, $190 in 48 hours, $800 on delivery of conveyance, and $9,000 in monthly payments with 6 per cent, interest. Plaintiff was to be furnished an abstract showing good and merchantable title, and the deal was to be completed within ten days from receipt of the abstract. The agreement contained the following provision: “First party reserves the right to mortgage said property up to four thousand dollars ($4,000).” The contract was drawn by defendant’s agent with whom the property had been listed. There is a dispute as to when the abstract was furnished and this dispute forms the basis of one of defendant’s claims, that plaintiff did not offer to close the deal and tender the, $800 within the time provided for in the contract. Plaintiff, a young man, and his father and mother all testify that they went to the office of defendant’s agent, Mr. Campbell, to close the deal within the time and then tendered to Mr. Campbell the $800. Mr. Campbell, called by defendant as a witness, testifies on the subject of the time they came to close the deal as follows: “Q. When did they want to close it, or do you know? When did they want to close it, if you know? ‘‘A. Well, they were ready to close this deal, I think it was a day before the last day that they had, the 10th day I think they were ready to close this *220 deal then, if I remember right. As I say, they came to my place a couple of days, and it might have been three days before the last day that they had that they notified me. “Q. You mean by the word ‘they’ the Smiths? “A. Yes, sir; I do.” We are satisfied that plaintiff offered to close the • deal and made the tender within the time fixed in the contract. Defendant’s principal contention is that the contract was not drawn in accordance with the preliminary negotiations of the parties. It is quite doubtful if his answer properly alleges any fraud in procuring his signature, but we shall not apply any technical rules of pleadings as we are clearly convinced that no fraud is established and that the contract as prepared by defendant’s agent was in accordance with the agreement of the parties and was executed by defendant with full knowledge of its provisions. Defendant also insists that there was a mutual mistake. This is based (1) on his claim that it was not in accordance with the preliminary negotiations, which claim we have already disposed of, and (2) upon the claim that plaintiff was first party in the contract and that the language quoted reserving to “first party” the right to mortgage gave that right to plaintiff when it was mutually understood that defendant should have that right. This assumes that plaintiff was first party in the contract; but this is a fallacious- assumption. Up to this point in the contract neither party had been denominated as first or second party, and naming the vendor as the first party is so universally the custom that we are bound to say that the point is entirely without merit. The written contract between the parties is the only contract before us; it was not procured by fraud, and there was no mutual mistake; parol testimony was not admissible to modify its terms. Smith v. Mathis, *221 174 Mich. 262; Ogooshevitz v. Arnold, 197 Mich. 203. The plaintiff has seasonably tendered performance and has kept the tender good; he was entitled to specific performance as decreed by the circuit court. That decree will be affirmed,-with costs of this court. McDonald, C. J., and Clark, Bird, Sharpe, Moore, Steere, and Wiest, JJ., concurred.