MARILYN KELLY, J.
George Skotzke appeals as of right from an order allowing consummation of a sale of real estate. He argues that the agreement to purchase the property violated the statute of frauds, as it contained no purchase price. He claims that the court erroneously supplied the missing terms. He claims that the judge erred in rendering his opinion based upon arguments and an affidavit, without providing an opportunity for a full evidentiary hearing. Finally, he asserts that the judge erred in allowing consummation of the sale, there being a conflict of interest in that the fiduciary sold the property to herself. We affirm.
The appellee filed a petition to close the sale of the condominium pursuant to the purchase agreement. Her brother, appellant George Skotzke, opposed the petition.
The appellant argues that the purchase agreement violated the statute of frauds, because it lacked a purchase price.
MCL 566.106; MSA 26.906 provides:
Case law has established that to comport with this statute, a writing transferring an interest in land must be certain and definite. Generally, the parties, property, consideration and time of performance must be included. McFadden v Imus, 192 Mich.App. 629, 633; 481 N.W.2d 812 (1992); Marina Bay Condominiums, Inc v Schlegel, 167 Mich.App. 602, 606; 423 N.W.2d 284 (1988).
In Benedek v Mechanical Products, Inc,
Appellant argues that there is a difference between price and consideration. He asserts that, while the statute allows consideration to be proven by other evidence, the price must be contained within the four corners of the purchase agreement. We find this argument unconvincing. Here, the consideration and the purchase price were one and the same.
Unpublished opinions do not, of course, furnish binding precedent. MCR 7.215(C)(1). Also, the Jankowski opinion failed to mention whether MCL 566.109; MSA 26.909 had been considered. We find that the statute of frauds must be read in conjunction with MCL 566.109; MSA 26.909. As a consequence, the purchase agreement for this property did not violate the statute of frauds if other legal evidence of the consideration was shown.
At the hearing below, appellee introduced evidence of the missing price by way of an affidavit of the real estate agent who witnessed the execution of the purchase agreement. The affidavit indicated that the agreed upon purchase price was the mortgage balance plus closing costs. It had not been added initially to the purchase agreement, because the exact amount could not be readily confirmed.
We must determine whether the affidavit constituted "other legal evidence." Where a contract is clear and unambiguous, parol evidence cannot be admitted to vary it. Central Transport, Inc v Freuhauf Corp, 139 Mich.App. 536, 544; 362 N.W.2d 823 (1984). Prerequisite to application of the parol evidence rule is a
Here, it is evident that the purchase agreement was incomplete. The agreement indicated that appellee would pay cash for the condominium, but the price was not included. The real estate agent's affidavit was admissible to determine whether the agreement was complete. It stated that the purchase price was not inserted into the agreement, because it could not be ascertained with precision on that date. The affidavit, therefore, was "other legal evidence" under the statute and could establish the purchase price. Bosley v Prueter, 44 Mich.App. 716; 205 N.W.2d 861 (1973). We conclude that the parol evidence rule did permit admission of the affidavit.
Next, appellant argues that the probate court erred in reaching its decision without providing a full hearing. The issues before the judge were whether the purchase agreement violated the statute of frauds, and whether the affidavit of the broker could be used to insert the purchase price. As to these issues, there was no dispute with respect to the facts, and it became a question of law to be decided by the court. Dykema v Muskegon Piston Ring Co, 348 Mich. 129, 138; 82 N.W.2d 467 (1957). Therefore, a full evidentiary hearing was unnecessary.
Finally, appellee argues that consummation of the sale was improper, because it gave rise to a conflict of interest in that appellee, a fiduciary, sold the property to herself.
MCL 700.642; MSA 27.5642 provides:
We agree with the judge that what is pertinent is the parties' position at the time the agreement was signed. Appellee had no fiduciary capacity at that time. Moreover, each interested party of the estate was notified of the sale, and the court oversaw it. Under the facts of this case, we cannot find a violation of the statute.