Snider v. Dunn

160 N.W.2d 619, 11 Mich. App. 39, 1968 Mich. App. LEXIS 1252

• Court: Michigan Court of Appeals
• Decided: April 3, 1968
• Docket: Docket 2,681
• Status: Published

Opinions

Quinn, J.

In reliance on a written offer to purchase real estate in Wayne county and the alleged acceptance thereof by defendant Sonia Dunn as seller and defendants’ refusal to perforin, plaintiff filed complaint for specific performance or in the alternative for money damages. A nonjury trial resulted in judgment of no cause of action and plaintiff appeals.

Plaintiff was admitted to the practice of law in 1921 and practiced law until 1950, during which time he closed a good many real estate transactions. For reasons of health, he withdrew from the practice of law about 1950 and entered the real estate' business, i.e., purchasing residential property to recondition and modernize for resale.

On August 21,1965, through Benjamin Rich Realty Company, plaintiff offered in writing to purchase the property in question for $3,800 and deposited $100 on such offer with the broker. The property was not listed for sale with the broker. On August 25, 1965, acceptance of the offer, amended as to amount to the sum of $4,150, was executed by “Sonia Dunn P.a. for Anna Dunitz”, although Sonia Dunn had no written authority to act for Anna Dunitz. The evening of the same day, plaintiff was notified of such acceptance by the broker. August 28, 1965, plaintiff received a policy of title insurance which disclosed that the State of Michigan was the owner of the premises, subject to the interest of Anna Dunitz, as to a life estate and remainder to Sonia Dunn and Seymour Dunitz. The property had been vacant for some time and had been vandalized. The evening of Arngust 25, 1965, plaintiff was notified of further vandalization to the property, and August 27 or 28,1965, he commenced repairs to stop further vandalizing. These repairs continued until March 4, 1966.

There were further negotiations to close the transaction, and about 2 weeks after August 21, 1965, plaintiff offered an additional $1,750 to the purchase price. It is disputed on the record whether Sonia Dunn ever unconditionally accepted any of plaintiff’s offers, but the sale was never consummated, and. October 8,1965 plaintiff filed the complaint.

On appeal, plaintiff does not question the trial court’s denial of specific performance but contends that defendant Sonia Dunn is liable individually for damages on theory of breach of implied warranty of authority by an unauthorized agent. This theory was neither pleaded nor raised below, and it is not before this Court. Dwelley v. Tom McDonnell, Inc. (1952), 334 Mich 229. If this theory were before this Court,. plaintiff could not benefit by it. CL 1948, § 566.108 (Stat Ann 1953 Rev § 26.908) requires that a contract for the sale of land must be signed by one lawfully authorized in writing to do so. It is conceded Sonia Dunn had no such authority from Anna Dunitz or Seymour Dunitz. No inquiry was made as to the authority of Sonia Dunn, and plaintiff was content to rely on the broker’s representation that Sonia Dunn had such authority and on the alleged representation by Sonia Dunn that she had such authority. The signature disclosed Sonia Dunn’s purported principal; plaintiff knew Sonia Dunn was acting for others and she cannot be-personally liable unless she agreed to be. Rail v. Encyclopaedia Brittanica, Inc. (1949), 325 Mich 35. No such agreement appears here.

Plaintiff next claims he is entitled to an equitable lien for the improvements he placed on the premises. With respect to defendants Anna and Seymour Dunitz, such claim is untenable. The record does not disclose that Sonia Dunn ever consulted them about the purchase agreement nor that they acquiesced in the negotiations for purchase. They had no knowledge of the repairs made by plaintiff. There is no equitable basis for granting plaintiff the lien he seeks as to them when plaintiff knew at the time he commenced repairs of the record title interest of Anna and Seymour Dunitz.

In Pakulski v. Ludwiczewski (1939), 291 Mich 502, the Supreme Court stated the basis for an equitable lien:

“An equitable lien for improvements placed on another’s property by fraud, accident or mistake is given only under compelling circumstances to avoid unjust enrichment of the true owner by the person innocently making the improvements.”

The record before us establishes neither accident nor mistake, and the arguable fraud of Sonia Dunn is not established by clear, satisfactory, and convincing proof. Youngs v. Tuttle Hill Corporation (1964), 373 Mich 145. In addition, the record does not establish that plaintiff innocently made the improvements.

Affirmed, with costs to defendants. Plaintiff’s motion to amend to conform to proofs is denied.

J. H. Gillis, J., concurred with Quinn, J.