Brittson v. Smith

Ostrander, C. J. (after stating the facts). It is -apparent that the court construed the writing as counsel for the defendant construed it, as one for the sale of land, .-and not as a mere agreement to pay a commission to an agent or broker for selling land. The agreement gives to plaintiffs, for a limited time, the exclusive right to find a buyer for the farm who will pay at least $6,400 for it to the owner; the expressed inducement to plaintiffs to enter upon the work of finding a buyer being the right to retain for their services any sum greater than $6,400 which they can induce the purchaser to pay. Upon the part of the plaintiffs the agreement would be performed when they produced a person able and willing to pay $6,400 or more for the place. Upon the part of the owner, the defendant, the contract would be performed if, when a purchaser was produced by the plaintiffs and $6,400 was paid or tendered him, he conveyed the farm with good title. The intending purchaser could not compel the owner of the farm to convey it to him, or to the plaintiffs. Plaintiffs do not occupy the position of principals to a contract for the purchase and sale of lands. They did not agree with defendant to buy his farm, and he did not agree to sell it to them. Language used in the opinion in Carr v. Leavitt, 54 Mich. 540 (20 N. W. 576), is applicable here: “This surely was not a contract ‘for the sale of any lands, or any interest in lands,’ within the meaning of the statute of frauds. * * * That statute contemplates a [227] transaction between parties contracting with each other as principals; and this was not such a transaction.” See, also, Waterman, etc., Exchange v. Stephens, 71 Mich. 104 (38 N. W. 685); Hannan v. Prentis, 124 Mich. 417 (83 N. W. 102); Obenauer v. Solomon, 151 Mich. 570 (115 N. W. 696). The promise of defendant contained in the memorandum of agreement that he will “furnish a complete abstract of title and warranty deed to us, or to any one designated by us,” would be quite as binding if made orally. It is no more than any owner of land who procures the services of an agent for its sale impliedly promises to do, if a suitable buyer is produced. The ultimate purpose of such a transaction is the sale and conveyance of the property. The contract must be construed with reference to all of its terms. The word “option” which is used therein relates manifestly to the exclusive right to sell the farm within a limited time. The clear purpose of the agreement is evident. It is not one for the purchase and sale of real estate, and we dismiss from consideration arguments based upon the idea that the contract was one which the statute makes invalid, unless it is written. - The essence of the agreement, whether the parol or the written agreement, was the procuring a purchaser for defendant’s farm. Plaintiffs offered to prove that defendant had but one farm, that it was in Rush township, contained 80 acres, and was properly described as the west half of the northwest quarter of section 35, was shown to them and to intending purchasers by defendant, and was the land they undertook to sell. So much of the description of the land as is written “northwest half of northwest quarter ” is an improbable description, indicating a probable mistake. It is not a description which government surveyors are permitted to use, and is one which could not be located by the usual monuments, minutes, and plats made by surveyors. ' The parol testimony offered did not tend to vary, contradict, or modify the [228] written agreement, but to make certain what appeared upon the face of it to be uncertain. What has been said disposes of all reasons and suggestions which are advanced in support of the action of the trial court. The judgment is reversed, and a new trial granted. Bird, Hooker, Moore, and McAlvay, JJ., concurred.