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STATE OF MICHIGAN
COURT OF APPEALS


WILLIAM BUCK and JANICE BUCK, Plaintiffs-Appellees, v VINCENT P. STAFFNEY, Defendant-Appellant.

UNPUBLISHED January 26, 1999

No. 205181 Muskegon Circuit Court LC No. 96-035220 CK

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,

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Michigan Law