Goldberg v. Mitchell

Sharpe, J. (for reversal). This is an appeal from an order denying a ..motion to dismiss plaintiff’s bill of complaint. The facts are not in dispute and are as follows: On November 26,1945, defendants Leslie L. Mitchell and Miriam Mitchell, his wife, were the owners of a parcel of real estate in Detroit, Michigan. On the above date, they entered into an agreement to sell said property to plaintiff, the written memorandum of which is as follows: “Nov. 26, 1945 “Received of Louis Goldberg, “Five Hundred ($500.00) deposit on the sale of our home, located at 18948 Wisconsin Avenue, Detroit, Mich. Balance $13,000. “(Signed) Leslie L. Mitchell “(Signed) Miriam Mitchell “Accepted: ‘ ‘ (Signed) Louis Goldberg. ’ ’ On May 16, 1946, plaintiff tendered to defendants the sum of $13,000 representing the balance due on the purchase price. The defendants refused to *283 accept the amount offered and on May 18, 1946, returned to plaintiff the initial $500 paid upon the purchase price. On June 18, 1946, plaintiff began' suit for specific performance of the alleged contract. On July 1, 1946, defendants filed a motion to dismiss plaintiff’s bill of complaint in which it is alleged : “2. ■ That the alleged contract to sell as set up in plaintiff’s bill of complaint is not sufficient under the statute of frauds to bind defendants to make a sale. “3. That the memorandum does not state the time or times of payments upon the sum remaining due, and is an insufficient compliance with the statute of frauds to support a bill for specific performance. “4. That the said writing does not contain a sufficient memorandum of the terms to satisfy the statute of frauds since the time'of performance is not stated.” On July 19, 1946, the trial court entered an order denying the motion to dismiss. Upon leave granted, defendants appeal and urge that the receipt in question is not sufficient to satisfy the statute of frauds (3 Comp. Laws 1929, § 13413 [Stat. Ann. § 26.908]), as the terms of payment and time of performance are not specifically stated. Plaintiff urges that the contract involved in this case fixes the property, parties, price and terms of payment; and that under the terms of payment plaintiff may pay the balance. In Cooper v. Pierson, 212 Mich. 657, we said: “It has been held by this Court that a memorandum to be sufficient under the section involved :?• * * must be complete in itself and leave nothing to rest in parol. * * * And that it must be *284 certain, and definite as to the parties, property, consideration, premises and time of performance.” In Cramer v. Ballard, 315 Mich. 496, 503, we said: “The general rule of law is well settled in this State, that in order to satisfy the statute of frauds the memorandum must be complete in itself and leave nothing to rest in parol.” • There are, however, two exceptions to the above rule. Consideration need not be expressed in the memorandum, see Benedek v. Mechanical Products, Inc., 314 Mich. 494, and the property, although not completely described, is sufficiently identified if it be described by name so as to be identified by extrinsic evidence not contradictory of the contract, see Cramer v. Ballard, supra. The facts in the case at bar do not come within either of the above exceptions. It must be conceded that the terms of payment and time of performance are not specifically stated in the instrument involved in the present case. In Gault v. Stormont, 51 Mich. 636, we said: , “For, though it (receipt) specified the purchase price, it failed to express the timé or times of payment, and there ,is no known and recognized custom to fix what is thus,left undetermined. A memorandum, to be sufficient, under the statute, must be complete in itself, and leave nothing to rest in parol. ” In Windiate v. Leland, 246 Mich. 659, the issue involved the sale of land evidenced by a receipt, a copy of which reads as follows: “$200.00 “Pontiac, Michigan, July 21, 1920. “Received from Frank Tyack, two hundred and no-100 dollars to apply on the purchase price of land *285 at Silver Lake, payment to begin November 1, 1920; purchase price agreed on eight thousand dollars. “John Windiate, “Per L. M. Eaton.” We there said (p. 666): “In order to satisfy the statute of frauds, the memorandum must.be complete in itself and leave nothing to rest in parol. The receipt given by John Windiate to Tyack does not comply with this requirement. * # # The only thing Tyack agreed to do was to pay the' purchase price. But, under the uniform holdings of this Court, payment of the purchase price alone is not sufficient to take the case out of the statute.” It is to be noted that the receipt in the above case fails to state the terms of the payments and the time when, all payments are to be made. In the case at bar, the receipt fails to state the amount of' the payments and the.time at which payments are to be completed. In our opinion the receipt does not comply with the requirements of the statute of frauds. The trial court was in error in failing to dismiss plaintiff’s bill of complaint. The decree should be reversed, and a decree should be entered in the Supreme Court dismissing plaintiff’s bill of complaint, with costs to defendants. Carr, C. J., concurred with Sharpe, J.