Fields v. Korn ( 1962 )

Black, J.

Through a realtor, plaintiffs offered in writing to buy “a two-family flat” situated at 1931 Leslie, in Detroit. With the offer they paid $500 earnest money to defendants Korn. They sued later—in Detroit common pleas—to recover the deposit and received judgment therefor against such defendants. On appeal to circuit, a like judgment against defendants Korn was entered. This appeal followed.

The offer to purchase, signed by plaintiffs under date of September 30, 1958, was accepted in writing by defendants Korn only. It turned out that the flat was owned in fact and of record by defendants Korn, an undivided 1/2 interest, and by original but subsequently dismissed defendants Bernard A. Pearl and Mary Pearl, an undivided 1/2 interest. Plaintiffs thereupon, by letter to the realtor dated November 7, 1958, withdrew their offer and demanded return of the paid earnest money. Later, after commencement of suit, the flat, was sold by the Korns and the Pearls to third parties.

Since plaintiffs offered to buy outright title in fee, no more' and no less, the acceptance in writing by defendants Korn only was insufficient under the statute of frauds. When plaintiffs withdrew the offer,, as was their right in the absence of previous acceptance in .writing by all 4 parties to be .charged, they were entitled to restitution of what they had paid. Judge Bowles correctly held that the rights and duties of the parties were controlled by Adler v. Katus, 190 Mich 86, and the reasoning of cases cited therein, notably that of Justices Campbell and Cooley respectively, written in Scott v. Bush, 26 Mich 418 (12 Am Rep 311), and Dickinson v. Wright, 56 Mich 42.

This is not an action to recover an allegedly earned broker’s commission. It is not a suit for specific performance of an agreement to sell real estate. It is simple assumpsit to recover money paid on a contract which the applicable section of the' statute of frauds says “shall be void” (CL 1948, § 566.108 [Stat Ann 1953 Rev § 26.908]) for want of required signature of the parties to be charged. The parties to be charged were the 4 owners of the fee of that which plaintiffs offered to buy. The written acceptance of 2 of the 4 only left the offer unaccepted and subject to withdrawal. At no time, between original negotiations and ultimate sale of the property (by the 4 owners to third parties) could plaintiffs have asked for or obtained specific performance, and no question or claim of part performance is involved. Thus our task, as Mr. Justice Holmes observed in his most notable dissent (Northern Securities Co. v. United States, 193 US 197, 401 [24 S Ct 436, 48 L ed 679]), “is to find the meaning of some not very difficult words”—“to read English intelligently.”

This contract was, as the statute says, “void.” That word “void” is the mandate of the statute. It means the ultimate of legal nullity. The English is plain. So is the verity of the lower court’s judgment.

I would affirm with costs to plaintiffs.

Dethmers, C. J., and Carr, Kelly, and Orrs M. SsiiTH, JJ., concurred with Black, J.