(dissenting). I would deny leave to appeal.
The memorandum opinion overstates the matter. It is inaccurate to say that the Court of Appeals "raised this issue [of laches] sua sponte”. The concept that specific performance should be denied because of plaintiff’s delay in commencing the action was argued at both the trial and appellate levels. Defendant’s lawyer asserted that plaintiff "abandoned” the agreement and that "this is laches on their part, their conduct constitutes laches, and this is an equitable action brought by them and we believe this is an equitable defense”. Most of defendant’s brief filed with the Court of Appeals is devoted to the issues raised by plaintiff-appellant but she also adverted to the over three year delay in commencement of the action, asserting that it was "only when the increase in real estate values caused the land to double in value that plaintiff commenced this action to buy the land at the 1969 price”.1
The April 18, 1969 preliminary agreement was contingent on rezoning for manufacturing use. The rezoning was completed on August 4, 1969. This action was commenced over three years later on August 21, 1972.
While some of the delay in commencing this action might be attributable to uncertainty whether defendant would perform and concern over the validity of the power of attorney, Laurence Scarpace died April 17, 1970, two years and four months before this action was commenced.
The Court of Appeals concluded that the reason *311for the delay was that after the plaintiff obtained replacement property it had no desire to enforce the agreement until it became apparent that, due to the passage of time, the subject land was worth more than the 1969 purchase price.
I see nothing of jurisprudential significance in this case, or why we would want to interfere with the judgment of the Court of Appeals majority that a delay of over three years in commencing this action supports the conclusion that plaintiff is barred from obtaining equitable relief on the ground of laches.2 It is not necessary to hear this case to avoid clear error and material injustice.3
*312Kavanagh, C. J., concurred with Levin, J.The court rule provides that "[o]rdinarily” no point will be considered by the Court of Appeals not set forth in the statement of questions involved. GCR 1963, 813.1. The language of the rule indicates that the Court of Appeals has authority to consider a question raised in the trial court and mentioned in the briefs even though it is not covered in the statement of questions involved.
Plaintiff had a right of action against Mrs. Scarpace for breach of implied warranty of authority to sign the agreement for her husband, which could be maintained at any time within the statute of limitations.. Damages would be limited to the difference between the contract price and the resale price at the time of breach.
"Appeal may be taken to the Supreme Court only upon application and leave granted, in the discretion of the Supreme Court, from any decision of the Court of Appeals, interlocutory or final, upon a showing of a meritorious basis for appeal and any one of the following grounds.
"(1) The subject matter of the appeal involves legal principles of major significance to the jurisprudence of the State.
"(2) The decision of the Court of Appeals is clearly erroneous and will cause material injustice.
"(3) The decision is in conflict with decisions of the Supreme Court or other Court of Appeals decisions.
"(4) In any appeal of an interlocutory order of the Court of Appeals, it must be shown that appellant would suffer substantial harm by awaiting final judgment before taking appeal.” GCR 1963, 853.1.
Mrs. Scarpace signed her own name to the agreement and her husband’s name as his attorney-in-fact on the advice of a real estate agent that a power of attorney dated November 17, 1967 conferred on her the requisite authority. Laurence Scarpace’s health had been declining. He was adjudicated incompetent in December, 1969 and died in April, 1970. This action was commenced in August, 1972.
The trial judge said that Mrs. Scarpace entered into the agreement "upon being solicited by a real estate broker” and that the broker had gone with plaintiff’s representatives to see the property 20 to 25 times but the broker "never saw Mrs. Scarpace” "before the time of signing”. The broker, said the judge, "had interested himself very much in the sale of the property, and had talked to Mrs. Scarpace. It *312appears Mrs. Scarpace was in a troubled state of mind with her husband’s illness, with Internal Revenue problems, and the record is definite on those points”.
Mrs. Scarpace signed her husband’s name "at the request and with instructions as to signing from the real estate broker”. The broker "saw the power of attorney but did not attach it to the purchase agreement for the benefit of the plaintiff’.
The judge said that when Olga Scarpace refused to go through with the transaction, "plaintiff was forced to obtain less desirable property”. He said that "there should have been more attention paid to the terms of the power of attorney by the real estate broker and all those interested in the property”.
He declined to award damages except for expenses attributable to the rezoning in the amount of $650 and directed that a judgment be entered in plaintiffs favor for that amount plus court costs and attorney fees of $146.15.