WILLIAMS
v.
DE MAN.
Docket No. 2,284.
Michigan Court of Appeals.
Decided June 13, 1967.*73 Poppen, Street, & Sorensen (Harold M. Street, of counsel), for plaintiff.
Cochran, Vander Ploeg & Grimm (Jack M. Grimm, of counsel), for defendant David De Man.
Stribley & Rude (George D. Stribley, of counsel), for defendant Lucille De Man.
Parmenter, Forsythe & Steendam (Robert L. Forsythe, of counsel), for intervening defendant John R. Achterhoff.
BURNS, J.
Plaintiff appeals a summary judgment for defendants. Plaintiff's complaint alleged that on February 10, 1966, defendant David De Man accepted plaintiff's offer to purchase a parcel of property owned by David De Man and Lucille De Man as tenants by the entireties. By the terms of this offer the sellers were designated as "David De Man and Lucille De Man, husband and wife hereinafter called the seller." The offer also contained the following provision:
"The purchaser does further agree to give * * * the realtor, until 11:59 p.m. on February 24, 1966, to secure the seller's written acceptance of this offer to purchase, which, when duly signed by the seller, shall constitute a binding contract of sale between the purchaser and the seller."
Defendant Lucille De Man never joined with her husband in signing and thereby accepting this offer. However, plaintiff alleged that on April 1, 1966, Mrs. De Man finally agreed to sell the property to plaintiff in accordance with a second offer to purchase. This second written offer also identified Mr. and Mrs. De Man as the "seller" but differed *74 substantially from the aforementioned offer in regard to possession, total consideration and terms of financing. This offer gave the realtor until 11:59 p.m. on April 4, 1966, to secure the "seller's" written acceptance. David De Man's written acceptance was never obtained. Plaintiff's complaint incorporated both offers to purchase by reference and prayed for specific performance "in keeping with the aforesaid agreements" or, in the alternative, damages for breach of contract.
David and Lucille De Man answered separately, but both denied the validity of the purchase agreements because of the absence of his or her spouse's signature. Furthermore, Mr. and Mrs. De Man admitted having executed an agreement to sell the property to another person, that person being John R. Achterhoff, who was subsequently permitted to intervene as a matter of right, pursuant to GCR 1963, 209.1. Plaintiff replied to the intervening defendant's answer by alleging that he (Achterhoff) had wrongfully procured a breach of plaintiff's contract.
All of the defendants moved for a summary judgment under GCR 1963, 117. Summary judgment was entered because "plaintiff's complaint does not set forth a cause of action for which relief can be granted for the reason that the complaint shows on its face that there is no contract between the plaintiff and the defendants David and Lucille De Man."[1]
On appeal plaintiff recognizes that neither spouse, acting alone, can convey or contract to convey to a third person property held as tenants by the entireties. Way v. Root (1913), 174 Mich 418; French v. Foster (1943), 307 Mich 361; Bailey v. *75 Grover (1927), 237 Mich 548. Nevertheless, he asserts that spouses owning real estate as tenants by the entireties may contract to convey such real property by executing separate contracts running to the same grantee, and in support of this argument plaintiff cites Branch v. Polk (1895), 61 Ark 388 (33 SW 424, 30 LRA 324, 54 Am St Rep 266). The Appellate Courts of Michigan have not passed on the effect of such a transaction, nor even on the effect of 2 separate deeds executed by the respective spouses to the same grantee. We find no necessity to delve into this question at this time because of the nature of the 2 separate "contracts"; i.e., the terms of the "offers" differed substantially and the time specified to obtain acceptance by the tenants by the entireties had expired without both spouses affixing their signatures to the alleged agreement. Under these circumstances appearing from the pleadings, the circuit judge could not have ordered specific performance. Way v. Root, supra; Bailey v. Grover, supra.
Notwithstanding the impossibility of specific performance, plaintiff claims that the partially accepted offers entitle him to recover damages for breach of contract, and that, therefore, the judge erred in granting the motions for summary judgment. A similar approach was argued in Rothstein v. Weeks (1923), 224 Mich 548. On pages 552, 553 and 555 of the Rothstein Case, supra, the Court said:
"Defendant's contention is based upon the proposition that conceding specific performance of this contract cannot be specifically enforced and is void so far as title to the property and rights of plaintiff's wife are concerned, it is yet valid as against plaintiff himself in an action at law to recover damages from him sustained by reason of his individual breach of the contract. In support of this proposition *76 defendant's counsel cites Way v. Root [1913], 174 Mich 418, and other analogous cases where the contract is individual and the party held liable obligates himself personally and alone as empowered to contract, while just the contrary is shown here. Not only did the defendant know the property plaintiff was negotiating to convey was held by plaintiff and wife as tenants by entirety, was their home, and without her signature no valid contract could be made by him in relation to it, but the instrument itself names them in all its various provisions as joint obligors and obligees throughout, nowhere obligating or even mentioning plaintiff separately. * * *
"The manifest intent as expressed in the wording of the instrument itself, and conceded facts in relation to its subject-matter, place it within the class of contracts where each executes the agreement upon a clearly implied condition that it is to be executed by others named in it, and until executed by all it remains inchoate, incomplete, undelivered and unenforceable as to all."
As in the Rothstein Case, supra, the alleged agreements between the De Mans and plaintiff contemplated that both spouses accept one of plaintiff's offers before there could be a valid contract. There is nothing in the pleadings indicating that the instruments attached to and incorporated in the complaint did not embody the true intent of the parties. Therefore, since the instruments were not executed by all designated parties, no contract ever came into existence. Plaintiff cannot recover damages for the breach of a contract that never existed.
Plaintiff's assignment of error alleging that he is entitled to recover damages from the intervening defendant for wrongful inducement of breach of contract, is also fatally affected by the absence of a binding contract. "In actions for procuring the *77 breach of contract, the contract concerned must have been valid." 30 Am Jur, Interference, § 23, p 74. Also see, 84 ALR 48 and 26 ALR2d 1242.
Judgment affirmed. Remanded in accordance with the circuit court's reservation of jurisdiction.
FITZGERALD, P.J., and QUINN, J., concurred.
NOTES
[1] The circuit judge, in so ruling, retained jurisdiction for the purpose of resolving a dispute between the De Mans and Achterhoff, and consequently that matter is not before us on this appeal.