Coronet Development Co. v. F.S.W., Inc.

3 Mich. App. 364 (1966) 142 N.W.2d 499

CORONET DEVELOPMENT COMPANY
v.
F.S.W., INC.

Docket No. 827.

Michigan Court of Appeals.

Decided May 24, 1966. Leave to appeal granted August 25, 1966.

MacLean, Seaman & Laing (Kenneth Laing, Jr., of counsel), for plaintiff Coronet Development Company.

Wm. Henry Gallagher, Reymont Paul, and Wilfred H. Erwin, for defendant F.S.W., Inc.

Dykema, Wheat, Spencer, Goodnow & Trigg (James H. Spencer, of counsel), for defendants Godchaux.

Robert J. Kelly, for defendant Mrs. Fred Weis.

Leave to appeal granted by Supreme Court August 25, 1966. See 378 Mich 729, 379 Mich 302.

QUINN, J.

Coronet Development Company appeals from accelerated judgments^[1] granted by the trial court to defendants Godchaux, individually and as executors of the succession of Fred S. Weis, and Mrs. Fred S. Weis for the reason the court lacked jurisdiction over these defendants. Plaintiff also appeals from a summary judgment^[2] granted to F.S.W., Inc., for the reason no cause of action was stated against it. The issues for decision are clearly framed. Did the trial court have jurisdiction over the Godchaux, individually or as executors, and over Mrs. Fred S. Weis? Does the complaint state a cause of action against F.S.W., Inc.?

The complaint contained two counts. Count 1 was for specific performance of an oral contract to sell land entered into between Coronet and F.S.W., Inc. No relief was sought against the other defendants in count 1. Count 2 sought relief against all defendants on the basis of an alleged conspiracy among them to cause F.S.W., Inc., to breach the contract of sale relied on in count 1 and later contracts to sell Coronet all of the stock in F.S.W., Inc., entered into by the executors of the estate of Fred S. Weis and Coronet.

F.S.W., Inc., is a Louisiana corporation whose only asset is the Michigan land involved in this litigation. Fred S. Weis was the sole stockholder of this corporation; he died in February, 1963. His widow, Mrs. Fred S. Weis, is a resident of Louisiana and was never in Michigan during the time involved in this litigation. The Godchaux are officers of F.S.W., Inc., and executors of the estate of Fred S. Weis. They are residents of Louisiana and were never in Michigan during the time involved in this litigation.

It is the claim of Coronet in count 1 that on or about November 25, 1963, F.S.W., Inc., through its officers, the Godchaux, orally granted Coronet an option to purchase the land involved in this case, which is located in Livingston county, Michigan. It is further claimed that on or about January 24, 1964, Coronet exercised this option, and as a result, F.S.W., Inc., orally agreed to sell the land to Coronet for $175,000 on stated terms. To preclude the application of the statute of frauds^[3] and to come within the part performance provision of the statute,^[4] Coronet claims it went into possession of the land in reliance on the oral agreement to sell and expended time and money in developing the land. However, the trial court found from the record before it that Coronet's only possession was for survey purposes and any expenditures were made for investigative purposes prior to the time Coronet exercised its option. The record before the trial court supports these findings, and we affirm the trial court in its holding that there was no part performance to save this oral contract from being void under the statute, supra. Performance prior to contract is not part performance under the contract nor is payment of money sufficient to remove a contract from operation of the statute of frauds. Daugherty v. Poppen (1947), 316 Mich 430. It does not appear from the evidence before the trial court that amendment of the complaint was justified and summary judgment as to F.S.W., Inc., was properly granted. GCR 1963, 117.3.

The only service of process on the Godchaux and Mrs. Weis was in Louisiana. Coronet contends that the alleged conspiracy to induce breach of contract constituted a tort in Michigan and under CLS 1961, § 600.705 (Stat Ann 1962 Rev § 27A.705), such service was sufficient to give Michigan limited personal jurisdiction to support a personal judgment against these defendants arising out of the tort. Accepting, without so deciding, that Coronet is correct in this position, the argument fails because no conspiracy is shown. Mere characterization as a conspiracy is not sufficient. Greer v. Parks (1942), 300 Mich 492. Analysis of the facts pleaded to establish the conspiracy discloses no conspiracy. First, Coronet says the estate of Weis by its executors agreed to sell all the stock of F.S.W., Inc., to Coronet for the same price as the land, and that this was in furtherance of the conspiracy. This agreement was made voluntarily by Coronet and it is in no position to claim conspiracy on this transaction. The next series of facts pleaded to show conspiracy is that thereafter Coronet and the executors entered into a second contract for the sale of the stock at a greater price and conditioned on approval thereof by the probate court in Louisiana. This agreement was entered into voluntarily by Coronet, and the only logical inference to be drawn from entering into a second contract is that it superseded the former contract for sale of stock. Joseph v. Rottschafer (1929), 248 Mich 606. The second contract was a conditional one. Schultz v. Carlson (1946), 313 Mich 432. Approval of the second contract was never obtained from the Louisiana probate court, and all stock of F.S.W., Inc., was sold to defendant Banfield at a price greater than Coronet offered to pay in its second contract. Rather than establishing a conspiracy, the record discloses a performance of duty by the executors, namely: obtain the best price possible for the stock.

To involve Mrs. F.S. Weis in a conspiracy which is not shown to exist, Coronet contends that by the inducement of Banfield, she threatened removal of the executors of the Weis estate falsely and maliciously in order to force the breach of the contract relied on by Coronet. The record does not support the contention. Instead it discloses a legitimate effort by a widow to obtain a settlement of her husband's estate and the sale of an asset of that estate for the best price obtainable. There is no conspiracy and no basis for jurisdiction over the Godchaux and Mrs. Weis.

This holding also determines Coronet's claim of conspiracy as to F.S.W., Inc., but in addition, it should be noted that Coronet cannot do indirectly what it cannot do directly, namely: enforce the F.S.W., Inc., contract. Cassidy v. Kraft-Phenix Cheese Corp. (1938), 285 Mich 426.

Coronet's final allegations of error concern the trial court's refusal to order cross-examination of defendants in support of their motions for summary and accelerated judgments. Coronet contends it was error to decide these motions without affording Coronet the opportunity to cross-examine. The grant or denial of cross-examination in this situation is discretionary. GCR 1963, 116.6. We find no abuse of discretion here.

Affirmed, with costs to appellees.

LESINSKI, C.J., and T.G. KAVANAGH, J., concurred.

NOTES

[1] GCR 1963, 116.

[2] GCR 1963, 117.2.

[3] CL 1948, § 566.108 (Stat Ann 1953 Rev § 26.908).

[4] CL 1948, § 566.110 (Stat Ann 1953 Rev § 26.910).