Band v. Hazel Park Development Co.

337 Mich. 626 (1953)

60 N.W.2d 333

BAND v. HAZEL PARK DEVELOPMENT CO.

Docket No. 58, Calendar No. 45,868.

Supreme Court of Michigan.

Decided October 5, 1953.

Rehearing denied November 27, 1953.

George J. Armbruster (Carroll C. Grigsby, of counsel), for plaintiff.

William G. Comb, for defendant.

DETHMERS, C.J.

This is suit for specific performance of a preliminary agreement for the sale of a piece of real estate subdivided into a number of lots. From decree for plaintiff defendant appeals.

The agreement contained a provision, around which the sole controversy revolves, as follows:

"Only building and use restrictions mutually acceptable to buyer and seller shall be placed on said subdivision."

The defense raised on trial was that the parties had never agreed on building and use restrictions. On appeal the question is narrowed to the precise one of whether the court erred in finding that, pursuant to the above noted provision of the contract concerning restrictions, there had been a meeting of the minds between the parties in relation to the minimum cost of homes to be erected on the lots. Questions concerning the possibility of other building or use restrictions were not urged on trial or included in *628 the statement of reasons and grounds of appeal and are, therefore, not before us. DesRoches v. McCrary, 315 Mich 611; Patterson v. Jacobs, 289 Mich 351.

The record contains the testimony of plaintiff, of 2 realtors involved in the deal, and of the attorney who represented plaintiff in the negotiations, all of which supports plaintiff's claim and the trial court's finding that at the time the contract was signed the parties had agreed on the minimum cost of $7,500 for frame houses and $10,500 for brick houses. Approximately one-half year after the preliminary agreement was made defendant's president insisted on a $15,000 minimum, but he admitted on trial that no such figure had been mentioned when the agreement was signed. The trial court found, and there is evidence to support it, that defendant declined to go through with the deal because the value of the real estate had increased. Review of the entire record does not persuade us that, had we been in the position of the trial court, we would have found otherwise as to the facts.

Defendant cites authorities for the proposition that equity will not specifically enforce a contract bad for vagueness and uncertainty in respect to material elements of the transaction. They are not in point. The contract was clear enough in every other respect than that relating to restrictions. It left that matter to be determined by subsequent mutual agreement. The trial court found and the record establishes that such agreement was subsequently reached by them. Courts do not favor destruction of contracts because of indefiniteness and hold that uncertainty may be removed by subsequent acts or agreements of the parties. Accordingly, specific performance was granted in Waites v. Miller, 244 Mich 267, in which the written agreement left open for future agreement of the parties fully as large and *629 important an area of the total transaction as that involved here.

Affirmed, with costs to plaintiffs.

ADAMS, BUTZEL, CARR, BUSHNELL, SHARPE, BOYLES, and REID, JJ., concurred.