On January 4, 1944, the following written agreement was made by defendant Etna Ballard and plaintiff Max Cramer:
"I, Etna Ballard, hereby agree to rent my farm to Max Cramer for 1 year beginning February 1, 1944, for $16 a month. He to have the privilege of buying the farm for $3,500 any time during the year, also if he sows fertilizer the first year, he is to have the benefit of it later, or be recompensed for it."
(Signed) "ETNA BALLARD" (Signed) "MAX CRAMER"
Cramer subsequently moved to the farm and paid the rent personally until he went into the army. The farm was then occupied by his brother, with the consent of Mrs. Ballard, and Ford Cramer, the father of Max, paid the rent. On August 1, 1944, Ford Cramer paid $100 to Mrs. Ballard, taking a receipt therefor, reading: "Received of Max Cramer 100, on farm contract."
Ford Cramer testified that he paid this $100 on the purchase price of the farm and that when Mrs. Ballard refused to convey to his son, Max, he deposited the remainder in escrow in the Addison State Bank. A Miss Cleveland, who described herself as a banker, testified in part as follows:
"Mrs. Ballard came there and asked me if there was any money left there for her. She told me she had some arrangement with this young Cramer and *Page 498 she asked if there was money deposited for her. I told her there was, and that my instructions were, if she delivered a deed, to pay her $3,400."
Mrs. Ballard admitted on cross-examination that the farm in question was the only one she owned. Her explanation of the $100 transaction is as follows:
"When Mr. Ford Cramer brought me the $100, he just laid it down and left it. I gave it back to him and told him I did not want to accept it because I did not know whether I was going to sell the place to him. When I gave him that option of buying the place within a year, I did not suppose I had to sell it to him. I did not expect he had to buy it when he was taken into the army, and I did not have any idea that I was going to make him buy the place if he did not want to. I knew that Mr. Cramer was talking for Mr. Max Cramer's benefit at the time because he told me he was."
The circuit judge, citing Ogooshevitz v. Arnold, 197 Mich. 203, and Cooper v. Pierson, 212 Mich. 657, held that the writing in question "was not complete within itself and therefore barred by the statute of frauds." He determined there was $96 due for rent, and that the $100, now in the hands of the clerk of the court, should be applied against that rental and taxable costs.
The applicable statute, 3 Comp. Laws 1929, § 13413 (Stat. Ann. § 26.908), reads in part as follows:
"Every contract for the leasing for a longer period than one year, or for the sale of lands, or any interest in lands, shall be void, unless the contract, or some note or memorandum thereof be in writing, and signed by the party by whom the lease or sale *Page 499 is to be made, or by some person thereunto by him lawfully authorized in writing."
Defendant argues that the writing is insufficient, because "it fails to describe properly or identify the premises that are claimed to have been the subject matter of the agreement."
The writing in the Cooper Case did not describe the premises in question, except by certain lot numbers on North Saginaw street. The headnote of that case reads:
"A memorandum for the sale of land, to be sufficient to satisfy the statute of frauds (3 Comp. Laws 1915, § 11975), must be complete in itself and leave nothing to rest in parol; it must be certain and definite as to the parties, property, consideration, premises, and time of performance."
This court, however, affirmed the determination of the trial judge that the option in question, together with a separate paper, described as a 10-day extension, which repeated the description in the option and added Flint, Michigan, was sufficient to satisfy the statute of frauds. Extrinsic evidence was therefore accepted in the Cooper Case to supply the missing designation of the location of the property. This, despite the statement of the trial judge in the Cooper Case, that:
"If one had no information as to the location of the property except what he was able to gather from the face of the option, he would have great difficulty in locating it. It does not appear from the face of the paper in what State, county, city or village it is situate. In order to be of any force in designating the property intended to be conveyed, the option would have to be aided by parol evidence. We must, therefore, conclude that the option, considered by *Page 500 itself, was not sufficiently definite and certain to satisfy the statute."
It must therefore follow that the Cooper Case is questionable authority for the proposition that extrinsic evidence cannot be introduced.
This authority and others stem from Gault v. Stormont,51 Mich. 636, where Mr. Justice COOLEY, speaking for the court, held the writing insufficient, "for though it specified the purchase price, it failed to express the time or times of payment, and there is no known and recognized custom to fix what is thus left undetermined. A memorandum, to be sufficient under the statute, must be complete in itself, and leave nothing to rest in parol."
There is, however, a line of authorities that has its origin inEggleston v. Wagner, 46 Mich. 610, permitting the identification to be supplied by extrinsic evidence. In Garvey v. Parkhurst, 127 Mich. 368, the Court epitomized the rule in the Eggleston Case, saying:
"It is urged that the contract, if any existed, between Charles and Harry, is void under the statute of frauds, because it does not contain a sufficient description of the property. This contention cannot prevail. A governmental description, or a description by metes and bounds, is not required to the validity of a contract for the sale of lands. It is sufficient if the land be described by name so as to be identified by extrinsic evidence not contradictory of the contract. Thus, a description `The Schoolcraft Store,' held sufficient. Francis v. Barry,69 Mich. 311. So, land described as, `My title and interest in the lands,' et cetera, belonging to a certain business, held sufficient. Eggleston v. Wagner, 46 Mich. 610. So, in this case, a letter referring to *Page 501 the land as `my place,' meaning the place situated in the township of Moorland, sufficiently describes the land. It is evident that it was the only place he owned in that township. The identification can be supplied by extrinsic evidence without conflicting with the contract."
The holding in Ogooshevitz v. Arnold, 197 Mich. 203, and the rule stated at page 207 are not in conflict with Garvey v.Parkhurst, supra.
The rule in Gault v. Stormont, 51 Mich. 636, 638, was distinguished from that in Eggleston v. Wagner, 46 Mich. 610,618, by Mr. Justice Harlan in Ryan v. United States,136 U.S. 68, (10 Sup. Ct. 913, 34 L.Ed. 447). That case, which was argued by Mr. William H. Taft, as solicitor general, involved an agreement to sell lands now the site of Fort Brady at Sault Ste. Marie, Michigan. Ryan insisted that the writings relied upon to establish a valid and binding contract did not satisfy the Michigan statute of frauds, because the land was not sufficiently identified. The court quoted with approval from the EgglestonCase and held that in Michigan, "it is not essential that the description in the proposal of sale have such particulars and tokens of identification as to render a resort to extrinsic aid entirely needless when the writing comes to be applied to the subject matter."
This is recognized in 49 Am. Jur. pp. 656, 657, as the general rule. In the same text it is also stated that:
"The circumstances that the seller owns only one tract of land which answers the description given in the memorandum operates to render sufficient a description which under other circumstances might be too general to satisfy the statute."
See, also, Michelson v. Sherman, 310 Mass. 774 (39 N.E. [2d] 633, 139 A.L.R. 960). *Page 502
The decree in the instant case should be vacated and any rents paid since December of 1944 shall apply as a credit towards the purchase price.
The decree is vacated and one may be entered here requiring specific performance of the agreement to sell. Costs of both courts to appellant.
BUTZEL, C.J., and CARR, SHARPE, and REID, JJ., concurred with BUSHNELL, J.