OGOOSHEVITZ v. SAMPSON, 211 Mich. 184-

(a) Statement of Fact.

(b) Brief for Plaintiff.

(c) Brief for Defendant. OGOOSHEVITZ v. SAMPSON, 211 Mich. 184-

(a) Statement of Fact.-The above parties entered into an agreement for the sale of land, the writing being as follows: "Detroit, Michigan, March 2nd, 1916. Received of I. Ogooshevitz, $100,00 as first payment on lot known as westerly 18 feet of lot seven (7) and easterly thirty-four (34) feet of lot eight (8), being 52 feet on the south side of Palmer Avenue, "West of Beaubien Street, for the sum of $5,720.00, terms as follows: $620.00 more on delivery of land contract or deed and remaining $5,000.00 on or before one (1) year from the date of contract, purchaser to receive an abstract brought down to date before contract is made, to show free and clear title. Six per cent interest. Geo. L. Sampson."

Plaintiff alleged that he tendered the amount due and defendant refused to carry out the terms. Suit was started by the plaintiff for damages. Upon the trial of the case, the question arose whether the above writing was sufficient to satisfy the statute of frauds, and whether parol testimony was admissible to vary the terms of the above writing.

From a judgment for an insufficient amount for plaintiff, plaintiff appeals. Reversed.

(b) Brief for Plaintiff.-The agreement was a complete, full, and valid

agreement between the parties. Refusal to carry out or perform its terms was a sufficient basis for an action of damages or a suit for specific performance. Mull v. Smith, 132 Mich. 618; Smith v. Mathis, 174 Mich. 262; Miller v. Smith, 140 Mich. 524; Brin v. Michalski, 188 Mich. 400; Walsh v. Oakman, 199 Mich. 688.

79. Curry v. Curry, 213 Mich. 309, 39 Cyc. P. 1384; Waller v. Lieber-man, supra.

80. Waller v. Lieberman, supra and cases there cited.

The trial court erred in allowing parol testimony to vary the terms of the above agreement in the absence of fraud or misrepresentation. Smith v. Mathis, 174 Mich. 262; Wolf v. Meyantz, 184 Mich. 452; Ogooshe-vitz v. Arnold, 197 Mich. 203; Stange v. Wilson, 17 Mich. 341; Vanderkarr v. Thompson, 19 Mich 82; Kerwin v. Baker, 199 Mich. 688.

(c) Brief for Defendant.-The writing made by these parties was clearly memoranda, and indicated that the parties would get together at a later date and enter into a contract, and the trial court properly called attention to the statute of frauds applicable to this case.

"An instrument relating to the sale and conveyance of land, if sufficient to comply with the essential requisites of a deed, may, according to the intention of the parties, operate either as an absolute conveyance or as a mere bond for title or contract to convey."

39 Cyc. 1299, D. 1.

When the contract itself is in writing and signed by both parties, the writing is the contract. When the memorandum of the oral contract is in writing and signed by the vendor, it is not the contract but a memorandum, which makes it binding upon him if accepted by vendee. Mull v. Smith, 132 Mich. 168.

Parol testimony is admissible to bring out the circumstances and allow the court to view the circumstances as the parties viewed them, and so to judge of the meaning of the words and of the correct application of the language to the thing described. Goddard v. Foster, 17 Wall. (U. S.) 1421; Brown v. McGran, 14 Peters (U. S.) 493; Jennings v. Sherwood, 8 Conn. 127; First Nat. Bank v. Dana, 79 N. Y. 112. COOPER v. PIERSON, 212 Mich. 659-

(a) Statement of Fact.

(b) Brief for Plaintiff.

(c) Brief for Defendant. COOPER v. PIERSON, 212 Mich. 659-

(a) Statement of Fact.-Plaintiff received the following option from the defendants: "May 26th, 1919. In consideration of One ($1.00) Dollars, we the undersigned, agree to give option to Morris Cooper, on Lots 831, 833 and 835, North Saginaw Street, for the sum of Two Hundred Sixty and no/100 Dollars per front foot. It is agreed that first payment be made five thousand dollars. Balance to be secured by deed of trust for five years with six per cent interest. This option will expire June 26, 1919.-Fred D. Pierson, Robert L. Pierson, Fannie G. Pierson."

On the last day of the option, plaintiff met the defendants and requested them to have the papers drawn. Upon failure to find defendant's attorney In, an extension of ten days was agreed to upon payment of $100.00. The extension read as follows: "$100.00. June 26, 1919.

Received from Morris Cooper, One Hundred and no/100 Dollars, part payment on purchase price of Lots No. ------, known in option furnished to Morris Cooper in option dated May 26th, 1919, the revised number known as number 821 North Saginaw Street, Flint, Michigan, deed to be drawn on or before ten days. Fred D. Pierson."

The defendants refused to convey and plaintiff filed this bill for specific performance.

The court held that the option was insufficient to satisfy the statute of frauds because it did not designate the property intended to be conveyed, it not appearing in what state, county or village the property was situated, but reading the option and the ten-day extension together, the extension supplied what was lacking in the option, and the extension being signed by Fred Pierson only, the option is binding upon him only.

The court held that plaintiff was entitled to a decree against Fred Pierson only. Plaintiff and Fred Pierson appeal. Affirmed.

(b) Brief for Plaintiff.-The option was sufficient to satisfy the statute of frauds, as all parties knew what property was intended and the defendants testified that they owned only one parcel on North Saginaw Street.

The court has passed upon the question of description many times and have held the following sufficient: "My house and two lots on corner of Superior and Second Sts., this city." Gault v. Starmont, 61 Mich. 636. "Schoolcraft Store." Francis v. Barry, 69 Mich. 311. "My place." Garvey v. Parkhurst, 127 Mich. 368. "House and lots known as 706 Antoine St." Ogooshevitz v. Arnold, 197 Mich. 203. "House and lot situated Nos. 347 and 349 Alexandrine Avenue East, Detroit." Brin v. Michalski, 188 Mich. 400. "He who sells property on a description given by himself, is bound to make good that description; and if it be untrue in a material point, although the variance be occasioned by a mistake, he must still remain liable for that variance." McFerran v. Taylor, 3 Cranch (U. S.) 270; 29 Am. & Eng. Ency. 810.

(c) Brief for Defendant.-Five things are necessary in order to make a valid memorandum under the statute-the parties, property, consideration, terms, and time of performance. Ebert v. Culle, 165 Mich. 75; Lumber Co. v. Iron Co., 101 Mich. 577; Gault v. Starmont, 51 Mich. 636; Rosenbaum v. Tyszka, 192 Mich. 457; Droppers v. Marshall, 206 Mich. 560.

In Droppers v. Marshall, supra, the memorandum relied upon contained a correct description of the premises with the exception of the section number which was left out. The court held that on account of the omission of the section number, the memorandum was fatally defective.