MAX BROOCK, INC. v. Walker , 349 Mich. 63 ( 1957 )

349 Mich. 63 (1957) 84 N.W.2d 336

MAX BROOCK, INC.,
v.
WALKER.

Docket No. 22, Calendar No. 47,185.

Supreme Court of Michigan.

Decided July 31, 1957.

Howlett, Hartman & Beier (William B. Hartman, of counsel), for plaintiff.

Benjamin Tauber, for defendant.

BLACK, J.

This suit was brought to recover an allegedly earned real-estate broker's commission. Plaintiff alleged and proved that on February 7, 1955, "The parties hereto entered into a written listing contract, by the terms of which the defendant agreed to sell (certain premises, describing them, for the sum of $87,500), and to pay to the plaintiff a commission of 5% on the sale price, said listing agreement to extend to the 1st day of May, A.D. 1955." Plaintiff further alleged and proved that on February 28, 1955, it duly produced a purchaser ready, willing and able to purchase according to the agreed terms. Defendant alleged and proved that the listed premises were owned by himself and wife, and that he definitely informed plaintiff of that fact when the instrument sued upon was executed. The case accordingly turns on defensive worth of the fact of entirety ownership, plaintiff's timely knowledge thereof, and absence of the wife's signature from the instrument in suit. A copy of the instrument appears at margin.^[*]

The case was tried to the court, without a jury, and resulted in judgment for defendant. Plaintiff reviews and insists that the trial judge "erred in holding that a listing contract lacking the signature of the owner's wife was unenforceable where the broker knew of the marriage."

BLACK, J. (after stating the facts). The question before us is whether the rule of Dikeman v. Arnold, 78 Mich. 455, 469, 470, supported by the assembly of authorities shown in Lamberts v. Lemley, 314 Mich. 417, sustains plaintiff's claim that the covenant for conveyance of a marketable title as contained in this listing contract serves to unsettle defendant's reliance on Casey v. Hetherington, 220 Mich. 176; Koffman v. Pack, 224 Mich. 102; and Kostan v. Glasier, 337 Mich. 287. We hold that it does and, to set this recurrent issue at rest, affirm that a listing contract, in from as here declared upon, is enforceable — as between the parties on due performance by the broker — regardless of disclosure at the time of signing that the party obligating himself for payment is not outright owner of the land contemplated for sale. This simply reaffirms Dikeman's rule, quoted as follows (pages 469, 470 of report):

"We think the contract was good between Arnold and the plaintiffs. He knew when he made it that he could not perform it without the signature of his wife to the deed. He, in effect, bound himself to procure such signature. It in nowise differs in this respect from a contract to sell lands which one does not own at the time he makes such contract. The fact that one did not have the legal title at the time he made the contract, and could not procure it afterwards, has never been recognized as a legal defense to an action for breach of the contract."

Other questions raised by defendant in support of the judgment below are deemed of no merit. The first is that the listing contract as sued upon is indefinite and incomplete and hence void under the statute of frauds.^[*] The contract itself negates such contention. The second is that plaintiff did not allege and prove that the produced purchaser was able, as well as ready and willing, to purchase according to the stipulated terms. With regard to this second contention, due amendment of the declaration was allowed and the fact of the produced purchaser's ability to acquire was attested by open court stipulation.

Reversed and remanded for entry of judgment in favor of plaintiff. Costs to plaintiff.

DETHMERS, C.J., and SHARPE, SMITH, EDWARDS, VOELKER, KELLY, and CARR, JJ., concurred.

NOTES

[*] "Birmingham, Michigan Feb. 7, 1955. "To Max Broock, Inc., Realtors Birmingham, Michigan.

"In consideration of your agreement to use your best efforts to find a purchaser for the property described on the reverse side hereof, the undersigned, warranting themselves to be the sole owners of said property, hereby grants you the exclusive right and privilege to sell said property at the price and terms which are also stated on the reverse side hereof or at any other prices or terms which the undersigned may accept.

"If said property is sold by you, by myself, or any other person on or before the expiration date hereof to any person whomsoever, or if sold within 90 days thereafter to anyone to whom you have shown the property or with whom you have had discussions before the expiration date hereof, the undersigned agrees to pay you in cash a commission of 5% of the sale price $87,500. The undersigned agrees to furnish purchaser with a marketable title; an abstract or fee title insurance policy in the amount of sale price, certified to date of sale, and to consummate a sale upon the terms aforesaid. This agreement is effective from the date hereof to May 1, 1955.

"Copy hereof received.

"Undersigned will give possession within ________ days from date of sale.

/s/ CHARLES R. WALKER "Accepted upon the terms aforesaid MAX BROOCK, INC. By /s/ JOHN GAFILL.

"Lots, 29, 30, 31, 32 and 33 of Assessor's Plat No 29, City of Birmingham.

$87,500"

[*] CL 1948, § 566.132 (Stat Ann 1953 Rev § 26.922). — REPORTER.