Jaques v. Smith , 62 Mich. App. 719 ( 1975 )

62 Mich. App. 719 (1975) 233 N.W.2d 839

JAQUES
v.
SMITH

Docket No. 21972.

Michigan Court of Appeals.

Decided July 23, 1975.

Leonard C. Jaques, P.C. (by Robert E. Swickle), for plaintiff.

Miller, Canfield, Paddock & Stone (by Carl H. von Ende), for Howard F. Smith, Jr.

Manuel Zechman, for Johnstone & Johnstone, Inc., and Windell Birdsall.

Before: T.M. BURNS, P.J., and QUINN and M.J. KELLY, JJ.

Leave to appeal applied for.

M.J. KELLY, J.

Plaintiff brought suit, alleging the existence of a contract to purchase realty and seeking specific performance thereof. He also sought damages for a claimed conspiracy to tortiously interfere with contract rights. The trial court granted accelerated judgment for defendant, GCR 1963, 116.1(5), finding that the claim was barred by the statute of frauds, MCLA 566.108; MSA 26.908. Plaintiff brought this appeal.

The record and briefs disclose that there is no contract, note or memorandum in writing and signed by the party by whom the sale is to be made, or by some person thereunto by him lawfully authorized in writing. Therefore, the contract alleged is void, MCLA 566.108; MSA 26.908. The fact that plaintiff's signed offer was witnessed by a real estate agent does not constitute an acceptance and it is patently ridiculous to so urge.

Plaintiff's resort to MCLA 566.110; MSA 26.910 is of no avail. That statute permits the compelling of specific performance "in cases of part performance of [agreements barred by the statute of frauds]". In legal contemplation, the acts of plaintiff were preliminary to the formation of a contract to purchase and did not constitute part performance of an existing contract. Coronet Development Co v FSW, Inc, 379 Mich. 302, 310; 150 NW2d 809 (1967), Daugherty v Poppen, 316 Mich. 430, 439; 25 NW2d 580 (1947).

Finally, the trial court correctly granted accelerated judgment on the conspiracy claim. In Williams v De Man, 7 Mich. App. 71, 76-77; 151 NW2d 247 (1967), we held:

"Plaintiff's assignment of error alleging that he is entitled to recover damages from the intervening defendant for wrongful inducement of breach of contract, is also fatally affected by the absence of a binding contract. `In actions for procuring the breach of contract, the contract concerned must have been valid.' 30 Am Jur, Interference, § 23, p 74. Also see, 84 A.L.R. 48 and 26 ALR2d 1242."

Affirmed. Costs to appellees.