Goldberg v. Mitchell , 318 Mich. 281 ( 1947 )

I agree with Mr. Justice SHARPE that the memorandum does not satisfy the statute of frauds but feel that it is necessary to state the reasons therefor. Mr. Justice BUTZEL, writing for affirmance, states that since the decision in Gault v.Stormont, 51 Mich. 636, and in Ebert v. Cullen, 165 Mich. 75 (33 L.R.A. [N.S.] 84), "the courts have given increasing recognition to the existence of a rule of law that does fix the time and terms of payment." Cases from other jurisdictions should have no controlling effect here in the absence of a showing that they were decided under a statute of frauds such as obtains in this State. Under our decisions, the time and terms of payment must be stated in the written memorandum and cannot be left to "the existence of a rule of law."

Gault v. Stormont and Ebert v. Cullen, supra, which Mr. Justice BUTZEL would overrule, unquestionably hold that the memorandum here under consideration does not satisfy our statute of frauds.

Our decisions on which Mr. Justice BUTZEL relies do not overrule the principle announced in the Gault and Ebert Cases,supra. In Mull v. Smith, 132 Mich. 618, thus relied upon, the writings expressly stated:

"Will take cash $375 for my interest in place" —

"I agree to give Mr. E.M. Mull a warranty deed of the Burns farm upon payment of $275."

Those writings differ materially from the instant case where no mention is made of cash payment or when it is to be made,i.e., the time and terms of payment. The Mull Case does not leave the time or terms of payment to be inferred as in the instant case. The time and terms were stated in the writings, namely, cash upon receiving a warranty deed.

In the other case relied upon, Barton v. Molin, 219 Mich. 347, the written memorandum was an order to pay $500 "to apply on purchase price of 16,000" — "balance of 7,500 to be payed in thirty days" (The Court found that the difference in amounts was due to liens). The writings there are not like those in the instant case, where no time of payment whatever is mentioned. For support of certain statements therein, the Barton Case relies solely on Mull v. Smith, supra, for its authority. Neither case has since been cited or followed by this Court on the question of the sufficiency of the memorandum as to the time for payment expressed therein. Their import should not be enlarged and considered as a controlling authority in the situation now before us.

In 49 Am. Jur. p. 45, the following rule of law is stated:

"TERMS OF PAYMENT. — In accordance with the general requirements of certainty in the terms of a contract in order for equity to grant specific performance, a contract which leaves open the time and terms of payment for future negotiation is generally held to be incomplete and uncertain in material features so that specific performance cannot be decreed. Accordingly, a contract for sale of real estate will not be enforced where the terms of payment of the balance of the purchase price are indefinite."

In line with the rule thus stated, this Court has held as follows:

"A memorandum of a sale of real estate showing the receipt of money on the purchase price of a description therein named, but not stating the time or times of payment upon the sum remaining due, is an insufficient compliance with the statute of frauds to support a bill for specific performance." Ebert v. Cullen (syllabus), supra.

"A land contract in the form of a receipt for $25 `as a deposit on house located at 1415 Chene street, purchase price $3,450. One thousand will be paid before June 15, 1915. Balance $300 and interest,' signed by the vendor, did not contain a sufficient memorandum of the terms to satisfy the statute of frauds, since the time of performance must be clearly stated." Rosenbaum v.Tyszka (syllabus), 192 Mich. 457.

For the above reasons I concur in reversal.

NORTH, J., concurred with BOYLES, J.