Kashat v. Prangs , 16 Mich. App. 76 ( 1969 )

16 Mich. App. 76 (1969) 167 N.W.2d 603

KASHAT
v.
PRANGS

Docket Nos. 3,921, 3,922.

Michigan Court of Appeals.

Decided February 25, 1969. Leave to appeal denied July 8, 1969.

Harry S. Huber, for defendant Prangs.

Katsoulos & Gillis, for defendants Alcini and Cheli.

BEFORE: LESINSKI, C.J., and J.H. GILLIS and T.M. BURNS, JJ.

Leave to appeal denied July 8, 1969. See 382 Mich 768.

T.M. BURNS, J.

Defendants appeal from the circuit court's order of specific performance of a contract for the sale of land, entered in favor of the plaintiff, Sam Kashat.

Plaintiff had submitted on February 18, 1965, a written offer to purchase a ten-acre parcel of land on Van Dyke avenue in Washington township, Macomb county, from the defendant Milton Prangs for $25,000 cash. Plaintiff gave the signed form and a $500 deposit check to the defendants' agent, Owen Kirkwood, a broker. Defendant-seller Prangs crossed out the figure of $25,000 on the form and wrote in its place the figure of $28,500. Prangs altered one other term on the form, changing the time for closing from 45 days to 30 days after delivery of abstract, and through his broker, Kirkwood, returned the altered form by mail to plaintiff who received this counter-offer on February 28, 1965.

Defendants contend on appeal that before the plaintiff accepted this counter-offer of the seller Prangs, the offer either expired or was revoked. On March 6, 1965, defendants Alcini and Cheli entered into an agreement with defendant Prangs for the sale of the disputed parcel at a price of $32,000.

The trial court concluded after the completion of the testimony that a binding contract existed between plaintiff Kashat and the defendant Prangs, and accordingly entered an order of specific performance, requiring the defendants to deliver title to Kashat upon the plaintiff's tendering of the agreed purchase price of $28,500.

Clearly the written change by the seller Prangs of the price term on the printed form from $25,000 to $28,500 rejected plaintiff's original offer and substituted a counter-offer by the seller to the plaintiff. Thomas v. Ledger (1935), 274 Mich 16, 21; Seelye v. Broad (1966), 2 Mich App 177. In this regard, the trial court's conclusion that the negotiation between these parties consisted simply of an offer by the plaintiff-purchaser accepted by the defendant-seller, is clearly erroneous.

Further, the deposit by the plaintiff of $500 with the broker at the time he made his original offer could not bind the parties to the contract. The printed broker's form contract, entered as an exhibit, states that this deposit was given to the broker in consideration for the broker's effort to obtain the seller's acceptance. The trial court apparently found that this $500 bound the parties to an enforceable contract, but this deposit could not supply the requisite acceptance by the offeree. The seller having rejected plaintiff's offer to buy at $25,000 and having returned a counter-offer to sell at $28,500, it became necessary for the plaintiff-buyer to give a valid acceptance before the offer lapsed or was revoked.

The principal dispute presented at trial was whether or not the plaintiff accepted the defendants' counter-offer before the offer had either expired or was revoked by the seller through his agent, Kirkwood, the broker. Plaintiff testified that, eager to conclude the deal at the defendant Prangs' offered price of $28,500, he signed and delivered in person to Kirkwood within two or three days, the altered form he had received on February 28, 1965. Plaintiff, not greatly skilled in the use of written English, testified that he was unwilling to complete the transaction by mail because he was unsure of his ability to communicate by writing, and made a special trip from his home in Detroit to Kirkwood's office in Romeo, Michigan, in order to deliver the signed form personally. Owen Kirkwood testified, on the other hand, that he received the form in question in the mail on March 13, 1965, several days after he had informed the plaintiff by phone that the offer was revoked and that the land had been sold to the defendants Alcini and Cheli. Unfortunately, the trial court did not resolve this factual dispute.

However, the trial judge, in giving his opinion, observed candidly on the record that it was the seller's agent, the broker Kirkwood, who "played it cozy, both ends against the middle, held on all he could to see what deal could be made". From our study of the record we conclude that the evidence preponderates heavily in favor of the plaintiff's testimony that he returned the signed forms personally within three days to Kirkwood. Therefore, although the trial court's particular finding of an acceptance by the defendant-seller of the purchaser's original offer was not correct, we think the court was entirely correct in finding that there was a meeting of the minds between the parties and that a valid and enforceable contract had been formed. The Michigan Supreme Court has frequently stated that reversal will not be granted where a trial court has reached a correct conclusion based on an erroneous finding. County of Ottawa v. Zwagerman (1924), 229 Mich 501; Langschwager v. Pinney (1958), 351 Mich 473; Straith v. Straith (1959), 355 Mich 267.

We are convinced that the plaintiff is entitled to specific performance and the trial court's judgment is affirmed. Costs to appellee.

All concurred.