Baker v. Glander , 32 Mich. App. 305 ( 1971 )

32 Mich. App. 305 (1971) 188 N.W.2d 263

BAKER
v.
GLANDER

Docket No. 9648.

Michigan Court of Appeals.

Decided April 1, 1971.

O'Hara & Pierce, for plaintiffs.

Bruce W. Franklin, P.C. (by Donald L. Petrulis), for defendants Glander.

Before: R.B. BURNS, P.J., and J.H. GILLIS and T.M. BURNS, JJ.

PER CURIAM.

The plaintiffs sought reformation of a quitclaim deed or, alternatively, damages. The trial court granted the defendants' motion for accelerated judgment on the basis that no verbal agreement was completed, and the deed did not comply with the statute of frauds, MCLA § 566.101 et seq. (Stat Ann 1970 Rev § 26.901 et seq.). Plaintiffs appeal as of right to this Court.

There were preliminary discussions between Mr. Baker and Mr. Glander regarding the purchase from an estate of 120 acres in Antrim County. They agreed that Mr. Baker would pay the total purchase price of $7,000 and that he would get in return the east 60 acres, valued by the parties at $3,500, and a promise from Mr. Glander to either pay Mr. Baker $3,500 or to "work it off".

On Thursday evening, December 18, 1969, the Glanders took a quitclaim deed drafted by their lawyer and went to the Bakers' house. The deed was for the east 60 acres of the parcel involved, but the consideration stated was $7,000. Mrs. Baker questioned the fact that there was nothing in writing to show that the Glanders owed them $3,500, and Mr. Baker called his attorney and asked him to draft a promissory note the next day. Mrs. Baker wrote out a check for $7,000 and signed it. However, when the Glanders didn't know what the executrix's name was, they left the payee blank and kept the check. It was understood that Mrs. Glander would stop by the next day and tell her the name to write in. The deed was left with the Bakers.

About 9 a.m. Friday, December 19, 1969, Mrs. Glander went to the plaintiffs' house to tell them the executrix's name. Mrs. Baker had gone to the grocery store and when Mr. Baker, not realizing that his wife had already signed the check, told Mrs. Glander this, she said she had a doctor's appointment and had to leave but would come back later that day to pick it up. She did not return.

Mr. Baker then went to his attorney's office to get the promissory note. After some discussion, his attorney drafted a warranty deed and a land contract which Mr. Baker took to the Glanders that evening. Mr. Glander refused to look at them and told Mr. Baker he'd have to deal through his attorney. Four days later Mr. Glander called Mr. Baker and told him the deal was off because he had found another guy who would give him a thousand dollars more. Mr. Campbell was the new purchaser. This lawsuit followed.

We agree with the trial judge that these facts do not show a meeting of the minds of the parties on the verbal agreement. While the Glanders apparently intended to deliver the deed on December 18, 1969, the facts do not show an acceptance of it. According to Kroll v. Diamond Match Co. (1897), 113 Mich 196, the tender of a deed, pursuant to a written offer, does not, with or without a prior oral acceptance, complete a contract for the sale of land complying with the statute of frauds. No consideration was paid, nor was the check ever actually tendered.

Assuming an oral agreement did exist, it is admitted by the plaintiffs that the deed did not conform to it. A deed which does not conform to an oral agreement is not a sufficient memorandum to avoid the statute of frauds. Kelsey v. McDonald (1889), 76 Mich 188. Under GCR 1963, 116.1(5) and the decision in the Kelsey case, the trial court properly dismissed the case.

Affirmed. Costs to appellees.