MacRitchie v. Plumb
MacRitchie v. Plumb
Opinion of the Court
Plaintiff, William MacRitchie, administrator of the estate of Wilma E. Day, deceased, brought an action against defendants, Gerald Plumb and Ophelia Plumb, in Hillsdale Circuit Court averring that defendants had breached an agreement of sale for the purchase of real property from the plaintiff’s decedent. Following a bench trial the court found for the plaintiff and awarded $16,526.56 in damages. Defendants appeal as of right.
On May 9, 1973, defendants executed an offer to purchase real estate on a Michigan Real Estate Association uniform buy and sell agreement form whereby they offered to purchase the residence of plaintiff’s decedent for $50,000. Plaintiff’s decedent accepted the offer on May 13, 1973. The agreement showed that defendants made a deposit of $100 and that they were to pay an additional $4,900 as a down payment on a land contract with interest at 7% per annum. The agreement further provided that the sale was to be closed within 30 days after all documents were ready and that the change in occupancy would be given to the vendee immediately after closing.
A land contract was prepared and signed by the defendants on May 15, 1973. At that time the broker and the defendants were not aware that plaintiff’s decedent had died on May 14, 1973.
Over a year later, on August 15, 1974, the home was sold for $40,000. The plaintiff filed the instant action on September 3, 1974, seeking to have defendants held liable for some $16,000 in damages, $10,000 difference between the contract price and subsequent sale price and $6,000 for other expenses allegedly incurred as a result of the breach. Defendants answered and filed a counterclaim seeking to recover their $100 deposit.
A pretrial conference was held on December 2, 1974, with Judge Kenneth Prettie presiding. A pretrial conference summary order was subsequently issued. The issues were defined therein as whether the preliminary agreement or the land contract made time of the essence and the effect, if any, that the death of a prospective seller of real estate has upon the validity and unenforceability of a preliminary agreement or unexecuted land contract.
Defendants bring a number of allegations of error on appeal of which only three merit brief discussion.
Defendants contend that the buy-sell agreement entered into by plaintiff’s decedent and 'defendants was not a valid ánd enforceable contract. We disagree. A contract for the transfer of real property is valid and enforceable if the agreement contains the essential elements of a contract with sufficient certainty and definiteness regarding the parties, property, consideration, terms, and time of performance. Brin v Michalski, 188 Mich 400; 154 NW 110 (1915). In the case at bar all the essential elements of a contract wfere present and clearly
Defendants next contend that the trial judge committed reversible error when he found that time was not of the essence in the contract. We disagree. The general rule is that time is not to be regarded as of the essence of a contract unless made so by express provision of the parties or by the nature of the contract itself or by circumstances under which it was executed. 91 CJS, Vendor and Purchaser, § 104, p 1000. In the case at bar, the real estate broker testified that the 30-day closing requirement was inserted as a matter of course and not as a result of defendants’ concern that the land contract be executed immediately. Further, defendants did not request a time limitation be placed upon the closing. Defendant Gerald Plumb even admitted that at the time he and his wife entered into the contract they were not concerned with placing a time limitation on the final closing. The trial judge’s finding that the parties had not made time as of the essence of the contract is therefore amply supported by the record and we are unable to say that his finding of fact in this regard was clearly erroneous.
The defendants next contend that the trial court erred in its calculation and its awarding of damages. We agree. Courts have uniformly held that where a vendor seeks to recover damages from the vendee pursuant to a contract for the transfer of real property, the measure of damages is the difference between the contract price and the market value of the land. Calamari and Perillo, Contracts, § 231, p 365. Further, the vendor’s loss is
Remanded for proceedings not inconsistent with this opinion.
Reference
- Full Case Name
- In re DAY ESTATE MacRITCHIE v. PLUMB
- Cited By
- 6 cases
- Status
- Published