Starkweather v. Bentley ( 1929 )

Plaintiff sets up the terms of the parol contract, alleged part performance on his part, and asked for specific performance of the same. He is hardly in position to raise the question of the statute of frauds. But beyond this, his bill of complaint was a writing signed by him. Defendants admitted the making of the parol agreement, and, without raising the question of the statute of frauds by their cross-bill, seek its foreclosure. They are hardly in position to here urge the statute of frauds. Quite likely had they admitted the making of the parol agreement, and in their answer claimed the benefit of the statute, they would have been permitted to make such defense. This they did not do, and, like plaintiff, they both signed their answer and cross-bill. Pleadings which set up the terms of the parol agreement and which are signed by the parties (some cases say when signed by their attorney), are sufficient memoranda to satisfy the statute. Patton v. Chamberlain, 44 Mich. 5; Bridgman v.McIntyre, 150 Mich. 78; Brender v. Stratton, 216 Mich. 166 (and note to this case 22 A.L.R. 735); Innis v. MichiganTrust Co., 238 Mich. 282; Jones v. Lloyd, 117 Ill. 597 (7 N.E. 119); Iverson v. Cirkel, 56 Minn. 299 (57 N.W. 800); Barrett v. McAllister, 33 W. Va. 738 (11 S.E. 220). In the last-cited case, it was said:

"It is settled law that if the defendant admits the agreement, but relies on the statute as a defense in his pleadings, he can protect himself from a decree of specific performance, notwithstanding his admission of the agreement; but if he admits the agreement, but neither pleads the statute, nor relies on it in his answer, he is deemed to have renounced the benefit of it. Where the bill alleges an oral agreement, and the answer denies it generally, it can not be proven by oral evidence. Browne, St. Frauds, §§ 508, 510, 510a; Woollam v. Hearn, 2 Lead. Cas. Eq., 979; 2 Minor, Inst. 775. Treating the answer as a substantial admission of the agreement as laid in the bill, and the statute not having been pleaded or relied on in the answer, the statute of frauds is not a defense."

We are satisfied, as was the trial court, that plaintiff was in default in his payments; he did not tender payment in his bill, and when the court in effect offered him specific performance if he would pay down one-quarter of what he owed and the balance with reasonable promptness, he was unable to comply. He is not now entitled to specific performance. But even where the facts do not justify a decree for specific performance, the bill may be treated as one to redeem and redemption permitted. Lozon v. McKay, 203 Mich. 364; Hubbell v.Ohler, 213 Mich. 664. Defendants seem to have wanted the purchase price rather than the house back, and would doubtless have accepted payment at any time before or after suit was brought; they have not appealed. Possibly the requirement that plaintiff pay a little over $2,000 at once was more than he could comply with and should have been extended to give him a little more opportunity than he had. We think the ends of equity will be served by giving plaintiff another opportunity to redeem. He shall pay the amount found due on the contract by the trial judge in the original order with interest to the date of settlement of the decree, plus interest until paid, plus taxes paid by defendants, plus the amount paid by defendants to redecorate the house, less the rental value of the premises during the period defendants occupied the premises, these amounts to be fixed on settlement of the decree; such payments to be made as follows: one-quarter 30 days after this opinion is filed, and the balance in three equal payments, 60, 90, and 120 days after the filing of this opinion. Upon making these payments plaintiff will be restored to the possession of the premises. On failure to make such payments on the dates fixed, he is foreclosed from any interest in the premises.

As so modified, the decree and order of the court below will be affirmed.

Defendants to have costs of the trial court. No costs to either party in this court.

NORTH, C.J., and FEAD, WIEST, CLARK, McDONALD, POTTER, and SHARPE, JJ., concurred.