BOARD OF GOVERNORS OF EASTERN MICHGAN UNIVERSITY

v

BURGESS

45 Mich. App. 183, 206

N.W.2d 256 (1973)

R. B. BURNS, JUDGE. On February 15, 1966, defendant signed a document 4 which purported to grant to plaintiff a 60-day option to purchase defendant's home. That document, which was drafted by plaintiff's agent, acknowledged receipt by defendant of "One and no/100 ($1.00) Dollar and other valuable consideration." Plaintiff concedes that neither the one dollar nor any other consideration was ever paid or even tendered to defendant. On April 14, 1966, plaintiff delivered to defendant written notice

of its intention to exercise the option. On the closing date defendant rejected plaintiff's tender of the purchase price. Thereupon, plaintiff commenced this action for specific performance.

At trial defendant claimed that the purported option was void for want of consideration, that any underlying offer by defendant had been revoked prior to acceptance by plaintiff, and that the agreed purchase price was the product of fraud and mutual mistake. The trial judge concluded that no fraud was involved, and that any mutual mistake was not material. He also held that defendant's acknowledgment of receipt of consideration bars any subsequent contention to the contrary. Accordingly, the trial judge entered judgment for plaintiff.

Defendant appeals. She claims that acknowledgment of receipt of consideration does not bar the defense

of failure of consideration. She further claims that the trial judge's findings of fact as to the absence of fraud and material mistake are in error, and that the record supports a finding that defendant, was the victim of plaintiff's coercion.

Options for the purchase of land, if based on valid consideration, are contracts which may be specifically enforced. Conversely, that which purports to be an option, but which is not based on valid consideration, is not a contract and will not be enforced. One dollar is valid consideration for an option to purchase land, provided the dollar is paid or at least tendered. In the instant case defendant received no consideration for the purported option of February 15, 1966.

A written acknowledgment of receipt of consideration merely creates a rebuttable presumption that consideration has, in fact, passed. Neither the parol evidence rule nor the doctrine of estoppel bars the presentation of evidence to contradict any such acknowledgment.

It is our opinion that the document signed by defendant on February 15, 1966, is not an enforceable option, and that defendant is not barred from so asserting.

The trial court premised its holding to the contrary on Lawrence v. McCalmont, 43 U.S. (2 How.) 426, 452,

11 L.Ed. 326, 336 (1844). That, case is significantly distinguishable from the instant case. Mr.Justice Story held that "[the guarantor acknowledged the receipt of one dollar, and is now estopped to deny it." However, in reliance upon the guaranty substantial credit had been extended to the guarantor's sons. The guarantor had received everything she bargained for, save one dollar. In the instant case defendant consideration promised her.

That which purports to be an option for the purchase of land, but which is not based on valid consideration, is a simple offer to sell the same land. An option is a contract collateral to an offer to sell whereby the offer is made irrevocable for a specified period. Ordinarily, an offer is revocable

at the will of the offeror. Accordingly, a failure of consideration affects only the collateral contract to keep the offer open, not the underlying offer.

A simple offer may be revoked for any reason or for no reason by the offeror at any time prior to its acceptance by the offeree. Thus, the question in this case becomes, "Did defendant effectively revoke her offer to sell before plaintiff accepted that offer?"

Defendant testified that within hours of signing the purported option she telephoned plaintiff's agent and informed him that she would not abide by the option unless the purchase price was increased. Defendant also testified that when plaintiff's agent delivered to her on April 14, 1966, plaintiff's notice of its intention to exercise the purported option, she told him that "the option was off."

Plaintiff's agent testified that defendant did not communicate to him any dissatisfaction until sometime in July, 1966.

If defendant is telling the truth, she effectively revoked her offer several weeks before plaintiff accepted that offer, and no contract of sale was created. If plaintiff's agent is telling the truth, defendant's offer was still open when plaintiff accepted that offer, and an enforceable contract was

created. The trial judge thought it unnecessary

to resolve this particular dispute. In light of our holding the dispute must be resolved.

An appellate court cannot assess the credibility of witnesses. We have neither seen nor heard them testify. Accordingly, we remand this case to the trial court for additional findings of fact based on the record already before the court.

Reversed and remanded for proceedings consistent with this opinion. Costs to defendant.