Plaintiffs Diane Zurcher and James Zurcher appeal as of right the trial court's denial of their pretrial motion for summary disposition, arguing that a document signed by them and defendant Barbara Herveat constituted a binding contract for the Zurchers' purchase of Herveat's real property in Torch Lake Township. The basic issue before us is whether there was a binding contract between the parties or whether Herveat's additions to the purchase agreement converted her acceptance into a counteroffer. The resolution of this issue is complicated by the fact that the underlying action was one for specific performance, an equitable action, with only a nominal claim for damages. Nonetheless, the trial court allowed the entire matter to go to a jury and therefore made no findings of fact regarding the Zurchers' equitable claim. We hold that this was clear error and therefore reverse and remand for further proceedings.
I. Basic Facts And Procedural History
In 1987, the Zurchers purchased a cottage on Rabbit Bay, which is located near Houghton in Michigan's Upper Peninsula.
In June 1995, Herveat decided to sell her cottage. Herveat sent a letter to the Zurchers to inform them about this decision, stating:
The same day they received the letter, the Zurchers decided to buy the cottage. Diane Zurcher called Herveat that night and, after inquiring whether Herveat was "really sure" about selling, told Herveat that she and her husband wanted to buy the cottage. Over the next week, the Zurchers reviewed their finances and, for purposes of obtaining a mortgage, visited Jay Ruohonen, a loan officer at Houghton National Bank. When the Zurchers met with Ruohonen, Diane Zurcher told him that Herveat was her friend and that the purchase agreement had been oral. Ruohonen told her that she should obtain a written contract, and he provided her with a standard form to complete.
Diane Zurcher completed the form, which was entitled "authorized purchase agreement" (the purchase agreement) and which stated at the top: "This is a legally binding contract. If not understood, seek competent advice."
The Zurchers signed the purchase agreement on July 21, 1995, and mailed the signed purchase agreement to Herveat for her signature. Herveat signed the purchase agreement on August 16, 1995, below the caption at the bottom of the form entitled "OWNER'S ACCEPTANCE." The first sentence below the caption stated, "I/WE HEREBY ACCEPT the above proposal and agree to sell and convey to the above named Purchaser the premises herein described at the time and subject to the terms above set forth." The purchase agreement correctly identified the property as "Part of Section 15, T54N-R32-W, Torch Lake Township" but incorrectly stated that it was in Oakland County. The purchase agreement stated that the purchase price was $59,900. The purchase agreement identified the Zurchers as the purchasers and Herveat as the seller. However, in the body of the purchase agreement, under the caption "THE TERMS OF PURCHASE to be as follows," the Zurchers had included the following typewritten sentence:
Following this sentence, Herveat, in handwriting, added these words before Ruohonen faxed the purchase agreement to the Zurchers:
After Ruohonen faxed the purchase agreement to the Zurchers, Herveat visited her attorney, who prepared a warranty deed for the transfer of the property in exchange for $59,900. The attorney was to present the deed to Ruohonen at the closing, because Herveat was leaving the Houghton area and could not attend the closing in person. Herveat apparently signed the deed.
In mid-November 1995, the Zurchers sued Herveat for breach of contract and sought specific performance as well as reimbursement for expenses incurred as a result of the alleged breach. In her answer, Herveat claimed that no contract had existed between the parties and that, even if one had existed, it was rescinded by mutual agreement.
In early October 1996, the Zurchers moved for summary disposition under MCR 2.116(C)(10), claiming that the parties had formed a legally binding contract from which the Zurchers had not released Herveat. Herveat responded with her own motion for summary disposition, claiming (1) that a contract had not existed between the parties because the purchase agreement misidentified the property, listed no time for closing, and contained no remedy provision, (2) that Herveat's addition of terms to the purchase agreement created a counteroffer that the Zurchers did not accept, and (3) that the offer was revoked when Herveat informed Diane Zurcher that she did not want to sell the property. In late October 1996, the trial court denied both parties' motions for summary disposition. The core of the trial court's determination regarding the motions was as follows:
In a subsequent order, the trial court ordered that the matter be mediated and the mediators unanimously awarded $6,000 to the Zurchers, "so long as acceptance constitutes complete settlement of all claims." The Zurchers filed no response to the mediation evaluation, effectively rejecting the evaluation. The case then went to trial on both the Zurchers' equitable claim for specific performance and their claim for damages. At the close of the evidence both parties moved for a directed verdict, the trial court denied both motions, the jury found that no contract had existed between the parties, and the trial court awarded Herveat $4,130.97 in mediation sanctions. On appeal the Zurchers contend that the trial court erred in denying their motion for summary disposition
II. Standard Of Review
This Court reviews a trial court's grant or denial of summary disposition pursuant to MCR 2.116(C)(10), based on a finding that there is no genuine issue of material fact, de novo. Pinckney Community Schools v. Continental Casualty Co., 213 Mich.App. 521, 525, 540 N.W.2d 748 (1995). As does the trial court, we look at the entire record and, viewing the evidence in favor of the nonmoving party, decide if an issue exists about which reasonable minds might differ. Id.
III. Material Terms Of A Binding Contract For The Sale Of Land
At the outset, it is well to keep certain key distinctions with respect to this area of the law firmly in mind. First, there is the distinction between the form of a contract for the sale of land and the substance of that contract. Second, there is the distinction between a contract for the sale of land and a "land contract."
B. Form Versus Substance
(1) Form As Dictated By The Statute Of Frauds
In Michigan, as elsewhere, the form of a contract for the sale of land is dictated by the statute of frauds.
Simply put, therefore, a contract for the sale of land must, to survive a challenge under the statute of frauds, (1) be in writing and (2) be signed by the seller or someone lawfully authorized by the seller in writing. Although a number of cases explain, amplify, limit, or distinguish the language of the statute of frauds
"We may well start with this one general doctrine: There are few, if any, specific and uniform requirements. The statute itself prescribes none; and a study of the existing thousands of cases
We note that the interpretation of the statute of frauds has evolved somewhat over time, particularly with respect to the question whether parol evidence could be admitted to "fill out" the terms of a contract for the sale of land. Earlier courts were fairly strict in their enforcement
The substance of a binding contract for the sale of land is a subject separate from its sufficiency under the statute of frauds and one that is governed by the general contract law concept that there must be a meeting of the minds regarding the "essential particulars" of the transaction. See, e.g. Henry v. Rouse 345 Mich. 86, 92, 75 N.W.2d 836 (1956). For perfectly understandable reasons, however, any number of cases tend to conflate the form of a binding contract, as required by the two elements of the statute of frauds, with the substance of such a contract, as required by general principles of contract law.
For example, in Gedvick v. Hill, 333 Mich. 689, 695, 53 N.W.2d 583 (1952), the Michigan Supreme Court segued between consideration of the substance of the document in question and its form. The Court first stated that "[t]he primary question in this litigation is whether the document submitted in evidence as exhibit A was intended to be a memorandum of an agreed sale of the farm, and as such constituted a sufficient compliance with the requirements of the statute of frauds touching the transfer of real property." Id. at 692, 53 N.W.2d 583 (emphasis supplied). The Court, id. at 695, 53 N.W.2d 583, went on to quote Cooper v. Pierson, 212 Mich. 657, 660, 180 N.W. 351 (1920), to the effect that, to be sufficient under the statute of frauds, a memorandum "`must be complete in itself, and leave nothing to rest in parol.'" The Court then quoted from the next sentence in Cooper, to the effect that, "`[I]t [the memorandum] must be certain and definite as to the parties, property, consideration, premises, and time of performance.'"
This Court has, in the modern era when the admission of parol evidence is viewed much more liberally, on occasion also conflated form questions under the statute of frauds with substance questions under general contract law principles. For example, in Kojaian v. Ernst, 177 Mich.App. 727, 730, 442 N.W.2d 286 (1989), this Court stated:
The Kojaian panel then went on to state, again citing Brotman, that under the more liberal application of the statute of frauds, "the material terms which must be established before an agreement becomes enforceable are generally the identification of the parties, the property, and the consideration." Kojaian, supra at 731, 442 N.W.2d 286.
Clearly, Kojaian was a statute of frauds case. However, Brotman, in which the plaintiff sought specific performance of a contract to convey real estate, had nothing whatever to do with the statute of frauds. Rather, the pertinent portion of Brotman dealt with whether the trial court in that matter properly granted specific performance where the agreement had failed to provide an absolute closing date. Brotman, supra at 726, 246 N.W.2d 368. Thus, the Kojaian panel used general contract principles to decide a statute of frauds question. We emphasize that this approach, although somewhat confusing, does not make the general contract law principles in question invalid; rather, this approach simply tends to blur the distinction between the formalistic requirements of the statute of frauds and the substantive requirements of contract law.
(2) Substance As Dictated By General Contract Law Principles
A general requirement for a valid contract for the sale of land is that it contain certain essential elements. 77 Am. Jur. 2d, Vendor and Purchaser, § 5, p. 121. More specifically, "such a contract must generally be in writing and must set forth the terms of the agreement with sufficient certainty and definiteness, specifying the identities of the parties and their mutual assent, the property which is the subject of the contract, the price of such property, and the consideration." Id. at 121-122. It
Similarly, it is also required that an adequate description of the land be included in the contract. Such a description is acceptable "if it discloses with sufficient certainty what the intention of the grantor is with respect to the quantity and location of the land to which reference is made so that its identification is practicable." Id. at § 11, p. 126. Finally, another essential term of a land sale contract is the identification of the parties. A contract meets this requirement by designating "the names of the buyer and the seller with sufficient certainty so as to identify them." Id. at § 12, p. 127.
See also Milner Hotels, Inc., v. Ehrman, 307 Mich. 347, 356, 11 N.W.2d 914 (1943), a specific performance case that quotes with approval from the syllabus in Brin, supra at 400, 154 N.W. 110, regarding the essential terms of a land contract (i.e., "parties, property, consideration, terms and time of performance") and holds that, although the parties discussed but did not agree on minor conditions "dehors the agreement," the agreement was binding. See further Rathbun v. Herche, 323 Mich. 160, 165-166, 35 N.W.2d 230 (1948), another specific performance case, in which the Court quoted with approval the syllabus in Milner Hotels, supra at 347, 11 N.W.2d 914, and also held:
This Court has also set out what it considers to be the "essential" or "material" terms of contracts for the sale of land. In Dassance v. Nienhuis, 57 Mich.App. 422, 430, 225 N.W.2d 789 (1975), a specific performance case, this Court, citing Milner Hotels and Rathbun, held that
[w]hile it is true that specific performance is not an appropriate remedy where material matters of the contract are not ascertainable, Henry v. Rouse, 345 Mich. 86, 92, 75 N.W.2d 836 (1956), we are not faced with that situation here. In the case at bar, the material terms of the contract between plaintiffs
In Brotman, supra at 727, 246 N.W.2d 368, another specific performance case, this Court took the next step. Rather than setting out the identification of the property, the parties, and the consideration as, arguably, a nonexclusive list, the Brotman panel, citing Dassance, stated unequivocally that "[t]he material terms of the contract which must be clearly established are the identification of the property, the parties, and the consideration." Id. at 726-727, 246 N.W.2d 368 (emphasis supplied). As noted above, this statement was carried forward in Kojaian, supra at 731, 442 N.W.2d 286, albeit in a statute of frauds context.
Thus, until recently, there was arguably a divergence between some of the older cases of the Michigan Supreme Court, such as Brin, Milner Hotels, and Rathbun in which the Court referred to provisions relating to "terms," "time of performance," "marketable title," the "amount and time" of installment payments, the "rate of interest," and the "adjustment of taxes and assessments" as material or essential terms of a contract for the sale of land, and decisions of this Court, such as Brotman and Kojaian, that, ultimately, delineated only the identification of the property, the parties, and the consideration as material or essential terms.
In our view, this possible divergence was resolved in Giannetti v. Cornillie, 447 Mich. 998, 525 N.W.2d 459 (1994) (Giannetti II), adopting the dissent of then Judge Taylor in Giannetti v. Cornillie, 204 Mich.App. 234, 239-241, 514 N.W.2d 221 (1994) (Giannetti I). As described by Judge Taylor, Giannetti I, a case where the trial court granted specific performance to the plaintiffs (buyers),
The plaintiffs argued that the modification of the mortgage amount did not vitiate their purported acceptance "because the mortgage amount, unlike the purchase price, was not a material term of the contract." Id. at 237, 514 N.W.2d 221. The majority of the Giannetti I panel in this Court disagreed, holding that the modification to the mortgage amount was material and therefore the plaintiffs' purported acceptance was only a counteroffer. Id. at 238, 514 N.W.2d 221. The majority reasoned that
We first note that it is not possible from the text of the majority's decision in Giannetti to determine whether the defendants interposed the statute of frauds as a defense. If we assume that there was such a defense, then the majority's reference to the statute of frauds in the last sentence quoted above is understandable. If there was no such defense, the majority was following the tradition of conflating the issues of the form of a contract for the sale of land as dictated by the statute of frauds with the substance of such a contract as required by general contract law principles.
More directly, however, we note that the majority in Giannetti I did not refer at all to the Michigan Supreme Court and Court of Appeals cases, cited above, that deal with the issue of the material or essential terms of a contract for the sale of land. Rather, the majority assumed that the modification to the mortgage amount, by "widening the door through which plaintiffs could escape," was a modification of a material term. Id. Judge Taylor was quick to pick up on this point. Citing Brotman, he flatly stated, "It is well-established contract law that the material elements of a real estate contract are the identity of the property, the parties, and the consideration." Id. at 239-240, 514 N.W.2d 221. With this single sentence, Judge Taylor established that, in his view, the materiality of a term in a contract for the sale of land was a matter of contract law and that, following Brotman, the material terms of such a contract were the identification of the property, the parties, and the consideration.
Citing M.C.L. § 566.106; MSA 26.906 and McFadden v. Imus, 192 Mich.App. 629, 633, 481 N.W.2d 812 (1992), Judge Taylor determined that the requirements of the statute of frauds had been met, thereby disagreeing with the majority on that point as well. Judge Taylor then went on to note that in determining whether there was a material change in the contract terms to the extent that no meeting of the minds occurred, the "majority treats the materiality question as if it were a question of law rather than a question of fact." Giannetti I, supra at 240, 514 N.W.2d 221. Judge Taylor then referred to the trial court's factual findings as representing "a fair interpretation of the evidence presented at trial," id. at 241, 514 N.W.2d 221; the trial court's findings included a conclusion that the defendants' actions evidenced their belief regarding a meeting of the minds. In this regard, we believe it vitally important to keep in mind that Giannetti was an equitable action for specific performance in which the trial court was the trier of fact. Judge Taylor's reference to the materiality question as being one of fact must, therefore, be read within this context and cannot be read as an assertion that, somehow, in an equitable action a jury is to determine factual questions regarding materiality.
In Giannetti II, supra at 998,525 N.W.2d 459, the majority decision of the Giannetti I panel of this Court. The Court's exact words were:
We read the emphasized portion of the Court's order as adopting Judge Taylor's reasoning as the Court's own and therefore we regard the language incorporating that reasoning as binding precedent. Thus, the state of the law in Michigan at this time with respect to the material or
C. Contracts For The Sale Of Land And "Land Contracts"
We also note that there is possibility for confusion between a contract for the sale of land and a "land contract." A contract for the sale of land is, quite simply, a purchase agreement such as the one at issue in this matter. The term "land contract" is commonly used in Michigan as particularly referring to "agreements for the sale of an interest in real estate in which the purchase price is to be paid in installments (other than an earnest money deposit and a lump-sum payment at closing) and no promissory note or mortgage is involved between the seller and the buyer." 1 Cameron, Michigan Real Property Law (2d ed.), § 16.1, p. 582. A land contract is therefore an executory contract in which legal title remains in the seller/vendor until the buyer/vendee performs all the obligations of the contract while equitable title passes to the buyer/vendee upon proper execution of the contract. While in modern practice purchase agreements and land contracts are often not the same document, in earlier times they often were. See, e.g., Miller, supra at 525, 103 N.W. 872, where there was only one agreement, which apparently served as both the purchase agreement between the parties and a land contract. The interchangability of these two types of agreements in earlier practice perhaps explains why the amount and time of installment payments and the rate of interest were listed as material terms of contracts for the sale of land because, in fact, such terms were (and are) essential elements of a land contract.
IV. The Purchase Agreement
Given the state of the record, it is perhaps appropriate for us to indicate what this case is not about. First, this case is not an appeal from the trial court's denial of the Zurchers' motion for a directed verdict.
Second, this case, at its heart, is not a statute of frauds case. We note that in her brief in opposition to the Zurchers' motion for summary disposition, Herveat argued that an inaccurate description of the property, as well as the absence of a specific closing date, in the purchase agreement rendered it unenforceable under the statute of frauds. However, on appeal Herveat nowhere squarely argues the statute of frauds as a defense to the enforceability of the purchase agreement.
B. The Material Terms Of The Purchase Agreement
(1) The Property
There is no dispute that the legal description of the property contained in the purchase agreement was partially incorrect. Herveat appears to argue that these defects in the purchase agreement rendered it unenforceable. We disagree. In a contract for the sale of land, there is no question that the property must be sufficiently described. Here, the purchase agreement listed the wrong county. However, the purchase agreement correctly identified the property as being in "Torch Lake Township" and on "Rabbit Bay."
Accordingly, we conclude that, as a matter of law, the partially inaccurate legal description, in light of the circumstances of possession, ownership, situation of the parties, and their relation to each other and to the property as they were when negotiations took place and the writing was made, did not make the purchase agreement unenforceable. Thus, we find that the contractual law requirement that the property be identified was satisfied.
(2) The Parties
There is no question but that the purchase agreement identified the parties. Thus, we find that the contractual law requirement that the parties be identified was satisfied.
Similarly, there is no question that the purchase agreement identified the purchase price as being $59,900. Thus, we find that the contractual law requirement that the consideration be identified was satisfied. If the only question before us was whether the purchase agreement contained the material terms of a contract for the sale of land set out by Judge Taylor in Giannetti I, supra at 239-241, 514 N.W.2d 221 and adopted by the Michigan Supreme Court in Giannetti II, supra at 998, 525 N.W.2d 459 (i.e., the identification of the property, the parties, and the consideration), then this case would be over and we would simply rule that the trial court erred in denying the Zurchers' motion for summary disposition. However, Herveat's basic challenge to the binding effect of the purchase agreement, in the final analysis, rests primarily and most logically on the issue whether her changes to the purchase agreement converted her acceptance of the Zurchers' offer into a counteroffer.
C. Other Terms Of The Purchase Agreement
(1) Closing Date
Herveat first appears to argue that the absence of a closing date makes the purchase agreement unenforceable. In Kojaian, supra at 731, 442 N.W.2d 286, which is, of course, a statute of frauds case, this Court held that "[w]hen other terms, such as the time for performance or payment, are missing, courts will presume reasonable terms unless the parties express a contrary intention."
Here, the parties did not indicate that they expected anything other than a reasonable closing date. Therefore, the trial court should have presumed that the closing would have occurred within a reasonable time after the purchase agreement was signed. We find that the absence of a closing date on the purchase agreement did not render it unenforceable.
(2) Herveat's Changes To The Purchase Agreement
As noted above, after the Zurchers signed the purchase agreement and sent it to Herveat, Herveat made changes before signing and returning it. It is here that Herveat's arguments have the most cogency. Specifically, Herveat indicated that she wanted to keep a lawn mower and some ceramic vases located on the property and that she wanted the Zurchers to pay the costs and fees associated with the sale, with the exception of the proration of 1995 taxes and the cost of preparation of the deed. As did the sellers in Giannetti, Herveat argues that these alterations changed the offer into a counteroffer that was not subsequently accepted in writing by the buyers.
For a response to an offer to be deemed an acceptance as opposed to a counteroffer, the material terms of the agreement cannot be altered. We note that Herveat's addition of these terms did not change the Zurchers' obligation to buy the property and, therefore, under Giannetti II, supra at 998, 525 N.W.2d 459 it can certainly be argued that the material terms of the contract were not altered.
Nevertheless, Herveat's changes arguably affected a material term: the consideration to which the parties agreed. In our view, to convert Herveat's changes from an acceptance to a counteroffer, her changes must be more than de minimus; in other words, to change an acceptance into a counteroffer, the changes to a material term must themselves be material. See id. (treating nonmaterial change in acceptance as not constituting the making of a counteroffer). We are, at this juncture, presented with a procedural
Here, the Zurchers also sought both equitable relief in the form of specific performance and legal relief in the form of damages. This fact did not, however, deprive them of their right to a ruling by the trial court regarding their request for specific performance. The trial court did not make any factual findings on the interrelated issues of the material terms of the purchase agreement and if changes to those material terms were sufficient to convert Herveat's acceptance into a counteroffer but, rather, allowed the question whether there was a binding contract for the sale of land to go to the jury. This was clearly error. We therefore do not have before us findings of fact
D. Rescission Of The Purchase Agreement
Herveat also argues there was a factual dispute regarding whether Diane Zurcher told Herveat that Herveat could back out of the agreement at any time and that this precluded summary disposition. However, even if Herveat was correct in alleging that she was repeatedly told she could back out of the purchase agreement, this would not have invalidated the contract. As stated by Judge O'Connell for the panel in Zurich Ins. Co. v. CCR & Co. (On Rehearing), 226 Mich.App. 599, 604, 576 N.W.2d 392 (1997): "It is beyond doubt that the actual mental processes of the contracting parties are wholly irrelevant to the construction of contractual terms. Rather, the law presumes that the parties understand the import of a written contract and had the intention manifested by its terms." There was nothing in the purchase agreement indicating that either party could rescind it at will. Thus, Herveat's subjective thoughts about the enforceability of the purchase agreement are irrelevant to whether it was indeed enforceable.
There was an additional factual dispute regarding whether Diane Zurcher told Herveat in a telephone call that she, Zurcher, would rescind the purchase agreement. Even assuming that Diane Zurcher made the statement in question, such a statement would not have voided the purchase agreement. Herveat made
In this case, the trial court erroneously allowed the question whether there was a binding contract for the sale of land to go to the jury. Thus, the trial court never exercised its discretion regarding whether to order specific performance of the contract (if a contract existed). Accordingly, we conclude that this case should be remanded to the trial court for it (1) to make a factual finding regarding whether Herveat's changes to the purchase agreement constituted a change to a material term of the contract (i.e., consideration) and, if so, (2) to make a factual finding regarding whether these changes were of the magnitude and materiality to convert Herveat's acceptance into a counteroffer. In this regard, if any party wishes to make a record, through testimony or otherwise, regarding these factual questions, the trial court shall permit this.
If the trial court, after due consideration of that record and of our discussion above of the germane legal principles, finds that Herveat's changes were not to a material term of the contract or that such changes were not of the magnitude and materiality to convert Herveat's acceptance into a counteroffer, then the trial court should clearly enter a decree for specific performance of the appropriate terms and conditions. If, however, the trial court finds that Herveat's changes were to a material term of the contract and that such changes were of the magnitude and materiality to convert Herveat's acceptance into a counteroffer, then the trial court should decline to enter such a decree. In either event, this Court will then, if either or both parties choose again to appeal, be in the exact situation as was the Court in Giannetti: we will have before us the findings of the trial court—the appropriate trier of fact in an equitable action for specific performance—with regard to the critical issues in the case.
VI. The Dissent
Our dissenting colleague, post at 349, states that the "parties consented to a jury trial" and, relying on McPeak v. McPeak, 457 Mich. 311, 577 N.W.2d 670 (1998), concludes that the "jury was an appropriate factfinder in this case." While we concede that the record is less than fully illuminating on this point, we respectfully suggest that there is no basis whatsoever—on the record or otherwise—for the position that the Zurchers "consented" to a jury trial of their equitable claims for specific performance. Therefore, McPeak does not control and a remand for fact finding by the trial court with regard to their equitable claims is appropriate.
It is clear that the Zurchers included a jury demand with their complaint and deposited a jury demand fee.
Our conclusion in this regard is buttressed by our review of the record as it was subsequently developed. In their motion for summary disposition, the Zurchers moved that the purchase agreement "be specifically enforced, as there is no genuine issue of material fact, pursuant to MCR 2.116(C)(10)." Herveat's brief in opposition to the Zurchers' motion (and in support of her own countermotion) concluded by stating, "In such a context, a Court of Equity must hold that the equitable relief of specific performance is not appropriate to the facts and circumstances of this case." Thus, it was clear that both parties approached the hearing on their motions for summary disposition as one in which the Zurchers' equitable claims would be considered, if not decided, by the trial court.
The trial court, as noted above, determined that there were questions of fact that had to be resolved and denied both motions. The trial court then turned to— but ultimately avoided—the all-important question of who would decide the questions of fact with respect to the Zurchers' equitable claims:
So I'm going to proceed with the pretrial. Mr. Marks [plaintiffs' attorney] has a jury demand in his complaint for breach of contract, and perhaps we can start with what is going to be tried to the jury, and what are questions of equity that the jury will—insofar as your
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Thus, the trial court, having determined that factual issues existed that precluded summary disposition, apparently recognized that there were certain equitable issues that should be tried to the court and certain monetary issues relating to damages for the alleged breach of contract that should be tried to the jury. We are unable to find any later determination on the record by the trial court
Reversed and remanded for further appropriate proceedings consistent with this opinion. In order to expedite the matter, we retain jurisdiction.
Reversed and remanded.
MARKMAN, J., concurred.
O'CONNELL, J. (concurring in part and dissenting in part).
I concur with the majority's well-reasoned opinion in all respects, except that I would not reverse and remand for factual findings by the trial court. The majority correctly notes that the trial court is usually the finder of fact in an equitable action, such as one for specific performance. However, MCR 2.509(D)(2) provides that in actions where no right to a jury exists, such as equitable actions, the court may, "with the consent of all parties, order a trial with a jury whose verdict has the same effect as if trial by jury had been a matter of right."
Additionally, our Supreme Court has held that where parties consent to a jury
I find McPeak to be controlling in this case. Here, plaintiffs filed a timely jury demand, and defendant never moved to strike that demand or to limit the issues to be submitted to the jury. Therefore, the parties consented to a jury trial, and under MCR 2.509(D), the jury was an appropriate factfinder in this case.
I would therefore affirm the decision of the trial court and respect the verdict of the jury.
Oregon appears to be one of the foremost jurisdictions on this topic in terms of the number of published cases that deal with the requirements of a land sale contract. In Comment, Perfecting Oregon's Land Sale Contract: Beyond Notice and Cure, 76 Or L R 945, 965 (1997), Gregory R. Henrikson summarizes the law on specific performance and essential terms in Oregon. He writes:
The State of Washington also specifically defines the essential terms of a contract for the sale of real property. However, Washington has a much higher standard for determining the validity of a contract. In Kruse v. Hemp, 121 Wn.2d 715, 722, 853 P.2d 1373 (1993) (citing Hubbell v. Ward, 40 Wn.2d 779, 782-783, 246 P.2d 468 ), the Washington Supreme Court followed a prior decision setting out the
Many other states require certain essential terms for a valid contract, but either do not define those terms or set them out in relation to the requirements of the statute of frauds.
The Zurchers' reply brief states: