Dare v. O'Connor

213 N.W.2d 774, 50 Mich. App. 550, 1973 Mich. App. LEXIS 949

• Court: Michigan Court of Appeals
• Decided: November 28, 1973
• Docket: Docket No. 14470
• Status: Published

Opinions

O’Hara, J.

Dennis O’Connor and his wife Aileen became signatories to a written instrument which was handwritten by Mrs. O’Connor. It was signed by the other involved parties, Donald, Florence, Perry, and Adelaide Dare. The instrument by whatever name it should be designated provided:

"Terms July 29, 1970

"5000.00 — Cash

"Bal Land Contract — Monthly Payments Arranged "Donald Dare and Florence Dare, Perry Dare and Adelaide Dare agree to purchase from Dennis O’Connor and Aileen O’Connor for the sum of $10,000.00 the following description — The Old Forty, A Subdivision of Part of the S.E. 1/4 of the N.E. 1/4 of Sec. 7, T. 23 N., R. 4 E., Hill Township, Ogemaw Co. Mich. —Above description less approximately 1-1/2 acres. Deposit of $100.00 is hereby acknowledged—

"/s/ Dennis O’Connor "/s/ Donald Dare Dennis O’Connor Donald Dare

"/s/ Florence Dare "/s/ Aileen O’Connor Florence Dare Aileen O’Connor

"/s/ Perry Dare_ Perry Dare

"/s/ Adelaide Dare Adelaide Dare”

When the Dares retained counsel to examine the abstract covering the property it disclosed that the plat of the Old Forty Subdivision had never been recorded. Mr. O’Connor called the Dares and advised them that he was getting a surveyor to get a specific description of the lands sold. The Dares replied that there was nothing to survey; that they had bought the whole 38-1/2 acres and stood willing to pay the balance of the purchase price in cash. O’Connor thereupon said the whole deal was off. He returned the $100 down payment. The Dares began an action for specific performance of what they considered the enforceable purchase and sale agreement. The trial judge ordered specific performance as prayed in the complaint. The O’Connors appeal of right.

The transcript testimony in this case exceeds 100 pages. We have read it with extreme care. It contains controverted testimony as to the intention of the parties. The trial judge, recognizing as we do, that the instrument standing alone is susceptible of two diametrically opposed interpretations allowed both sides great latitude in explaining their respective positions.

It would be of no service to bench or bar to detail the conflicts. It is mostly a "you did — we did not” record.

In the last analysis this whole case boils down to whom the trial judge believed and to whose testimony he accorded the greater weight. True there are scholarly discussions in the briefs as to the sufficiency of the instrument to remove the transaction from control by the statute of frauds.¹ Strictly speaking that issue is not before us though appellant briefed it thoroughly and extensively. The statute was not pleaded. No advertence to it was made on trial. Under these circumstances we would depart from long settled and well reasoned precedent to entertain the issue on review. Trisch v Fairman, 334 Mich 432; 54 NW2d 621 (1952).

Even so, the parol evidence rule as applied to statute of frauds cases is discussed at length and with copious citations pro and contra for the judge’s reception of evidence of the intention of the parties.

We read the record cold. The trial judge had the feel of the case from the spoken words and the demeanor of the witnesses on the stand. We would stretch the appellate process to breaking to substitute our findings of fact and evaluation of weight and credibility of testimony for his.

The rule in Michigan abides. We review chancery cases de novo. We do not disturb the findings of the chancellor unless we would be compelled to have arrived at a different conclusion were we in his position. Futernick v Cutler; 356 Mich 33, 44; 95 NW2d 838, 844 (1959). We could not say this of the conclusions of the trial court in the case at bar.

We do no violence to settled law when we hold as we do here; whether the statute of frauds is involved or not, courts have historically been required to take testimony, weigh, and evaluate it when an instrument supporting a claimed agreement is by its own terms ambiguous, unclear, or equivocal. Certainly that is the situation in the case at bar.

For authority, if need be, see the discussion and citations in Bosley v Prueter, 44 Mich App 716, 720; 205 NW2d 861, 863 (1973).

We affirm, costs to the appellee.

Holbrook, J., concurred.

1 MCLA 566.108; MSA 26.908.