Sooey v. Zacharski

*352 Boyles, J. Plaintiff filed this bill of complaint in the circuit court for Macomb county in chancery seeking to compel specific performance of the following claimed memorandum for sale of land: “January 24, 1946, received of Mr. Ernest Sooey, $50 deposit on lot 11, East Detroit, Michigan, Henry Stevens Sub., Gratiot corner of Williams, total price $2,003. This deal to be closed 30 days from date. Frank Zacharski, Lucille Zacharski.” After a hearing on the merits, the circuit judge dismissed the bill of complaint and plaintiff appeals. Assuming, as these parties have, that the foregoing is a sufficient memorandum in writing to satisfy the statute of frauds, plaintiff has failed to establish any right to specific performance. Plaintiff in testifying before the court admitted that he had made no offer or tender of payment of the purchase price within said 30 days; nor did he make any deposit of such money in escrow. The record is barren of any proof that the defendants either did or would have refused to perform, if performance had been offered by the plaintiff within said time. Plaintiff did not offer performance within said 30 days and has not shown any excuse for his failure to do so. One who fails to accept an option to sell real estate according to its terms is not entitled to specific performance. Bergman v. Dykhouse, 316 Mich. 315. Under the above circumstances, plaintiff is not entitled to specific performance. The decree dismissing his bill of complaint is affirmed but without costs, appellees not having timely filed a brief in this Court. Bushnell, C. J., and Sharpe, Reid, North, Dethmers, Butzel, and Carr, JJ., concurred.