WILLIAM BUCK V VINCENT P STAFFNEY
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STATE OF MICHIGAN
COURT OF APPEALS
WILLIAM BUCK and JANICE BUCK,
UNPUBLISHED
January 26, 1999
Plaintiffs-Appellees,
v
No. 205181
Muskegon Circuit Court
LC No. 96-035220 CK
VINCENT P. STAFFNEY,
Defendant-Appellant.
Before: Hood, P.J., and Neff and Markey, JJ.
PER CURIAM.
Defendant appeals by right a judgment ordering specific performance of a purchase agreement
for a parcel of land. We affirm.
Defendant, as seller, and plaintiffs, as buyers, entered into a purchase agreement for the sale of
a parcel of land located on the Lake Michigan side of a sand dune in the city of Muskegon. The
purchase agreement contained a height restriction that provided, in part:
[t]he parties further acknowledge and agree that the height of the residence to be built
by Buyer shall be acceptable to Seller, and that the parties believe said acceptable
height to be approximately twenty-five feet. The parties agree that the height restriction
as finally agreed upon by the parties shall be incorporated in the warranty deed
conveying Parcel A.
According to the purchase agreement, closing was to take place no later than August 17, 1996.
Closing did not take place. Plaintiffs brought suit requesting specific performance of the purchase
agreement.
An action for specific performance is equitable in nature and subject to de novo review by this
Court. Smith v Neilan, 44 Mich App 394, 397; 205 NW2d 186 (1973). This Court will not reverse
unless the trial court’s findings are clearly erroneous or this Court would have reached a different result
had it occupied the position of the trial court. Calvary Presbyterian Church v Presbytery of Lake
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Huron of the United Presbyterian Church in the USA, 148 Mich App 105, 109-110; 384 NW2d
92 (1986).
I
The first issue is whether the purchase agreement was an enforceable contract. In order for
there to be a valid contract, the contracting parties must have a meeting of the minds on all material
facts. Stanton v Dachille, 186 Mich App 247, 256; 463 NW2d 479 (1990). A height agreement is
not generally a material fact. Material facts include subject matter, price, payment terms, and the parties
to be bound. See, generally, Kojaian v Ernst, 177 Mich App 727, 731; 442 NW2d 286 (1989).
Because the height restriction is not a material term, the lack of mutual assent would not defeat the
purchase agreement. Even if the height restriction were a material term, we then use an objective
standard in deciding whether meeting of the minds occurred, looking to the parties’ express words and
visible acts, not their subjective states of mind. Stanton, supra at 246-247. The testimony presented
shows that the parties to this suit agreed to be bound by a twenty-five-feet height restriction
Additionally, defendant contends that the height restriction served as an “agreement to agree,”
thereby making the purchase agreement unenforceable. We disagree. A contract to make a contract is
not a valid contract if the future contract is to contain a material term not already agreed upon.
Professional Facilities Corp v Marks, 373 Mich 673, 679; 131 NW2d 60 (1964). However, as we
have already discussed, the height restriction is not a material term.
Next defendant contends that the purchase agreement is not binding because the parties left the
height restriction to be negotiated in the future. We disagree. The fact that certain matters are left for
future negotiations is some evidence that the contract was not intended to be binding, but it is not
conclusive proof. Opdyke Investment Co v Norris Grain Co, 413 Mich 354, 359-360; 320 NW2d
836 (1982). Indeed,
[w]e must not jump too readily to the conclusion that a contract has not been made
from the fact of apparent incompleteness. People do business in a very informal
fashion, using abbreviated and elliptical language. A transaction is complete when the
parties mean it to be complete. It is a mere matter of interpretation of their expressions
to each other, a question of fact. [Id., citing 1 Corbin, Contracts, § 29, pp 86-88.]
The contemplation of additional contracts does not invalidate any agreement actually reached. Id. at
360.
Last, defendant contends that the contract suggests a failure of consideration. Defendant does
not cite support for this argument. A party who fails to provide authority in support of an argument on
appeal has abandoned the argument because that party may not leave it to an appellate court to search
for authority to sustain or reject his position. Magee v Magee, 218 Mich App 158, 161; 553 NW2d
363 (1996).
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We hold that the trial court’s findings regarding the existence of an enforceable contract were
not clearly erroneous.
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II
The second issue defendant raises is whether the determination of the height restriction was a
condition precedent to performance of the agreement. Defendant argues that there were no negotiations
nor was he given the information necessary to make a final determination as to the height of plaintiff’s
proposed house. Accordingly, because he did not make this determination; he was absolved from his
duty to perform the contract. We disagree.
The terms “provided that” and “if” are typically used to signal a condition but are not required.
Stanton, supra at 257. Stipulations in a contract are not usually construed as a condition precedent
unless the plain language of the contract compels the court to construe them as such. Vergote v K
Mart Corp, 158 Mich App 96, 107; 404 NW2d 711 (1987). Thus, the trial court’s ruling that under
the plain language of the contract the height restriction was not a condition precedent was not clearly
erroneous.
III
Defendant further contends that plaintiffs are barred from specific performance by the doctrine
of clean hands. We disagree. It is undisputed that he who seeks equitable remedies must come to
equity with clean hands. Isbell v Brighton Area Schools, 199 Mich App 188, 189; 500 NW2d 748
(1993). Defendant claims that plaintiffs changed the terms regarding the height agreement and failed to
tell him. Additionally, defendant claims that plaintiffs, in order to get more favorable terms in the
purchase agreement, led him to believe he would be the contractor for the house that was going to be
built on the property. Last, defendant claims that there was an oral agreement to close at a time
different from that specified in the purchase agreement; however there was also testimony that
contradicted defendant’s claims. Questions involving credibility should be left for the trier of fact to
resolve. Nabozny v Burkhardt, ___ Mich App ___; ___ NW2d ___ (Docket No. 203738, issued
December 22, 1998), slip op at 2. We would not have reached a different result had we occupied the
position of the trial court.
We affirm.
/s/ Harold Hood
/s/ Janet T. Neff
/s/ Jane E. Markey
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