## Facts

- Renee M. Burgess signed a Board-drafted writing on February 15, 1966, stating she granted the Board of Control of Eastern Michigan University a 60-day option to purchase her home.
- The writing recited receipt of “$1.00 and other valuable consideration.”
- The Board admitted that neither the $1 nor any other consideration was ever paid or tendered to Burgess.
- On April 14, 1966, the Board gave written notice that it intended to exercise the option and later tendered the full purchase price at the scheduled closing.
- Burgess rejected the tender.
- The Board sued for specific performance in Michigan circuit court.
- Burgess defended on lack of consideration for the option, revocation before acceptance, and also alleged fraud, mutual mistake, and coercion as to the price and circumstances.
- The trial court ruled for the Board, reasoning that Burgess’s written acknowledgment of consideration barred her from asserting nonpayment, and ordered specific performance.

## Issues

1. Whether a written acknowledgment/recital of received consideration in an option agreement bars the optionor from proving that no consideration was actually paid or tendered.
2. Whether a purported option to purchase real property is enforceable by specific performance when no consideration was paid or tendered to support the option’s irrevocability.

## Decision

- The Michigan Court of Appeals reversed and remanded.
- A recital acknowledging receipt of consideration creates only a rebuttable presumption that consideration passed; it does not preclude proof that consideration was never paid.
- Neither the parol evidence rule nor estoppel prevents evidence contradicting a recital of consideration when the question is whether consideration actually passed.
- Because the Board paid or tendered no consideration for the option, the instrument was not a binding option contract but a revocable offer.
- Without a binding option contract, the Board was not entitled to specific performance.

## Legal Principles

- An option to purchase land is specifically enforceable only if supported by valid consideration.
- Nominal consideration (including $1) can support an option only if it is actually paid or at least tendered.
- A written recital/acknowledgment of received consideration is not conclusive; it creates a rebuttable presumption that may be overcome by evidence of nonpayment.
- Evidence that consideration was not paid may be admitted notwithstanding the parol evidence rule where the proof goes to whether consideration passed at all.
- An “option” unsupported by consideration is treated as a revocable offer and is not enforceable as an option contract.

## Conclusion

The court held that the Board could not enforce the purported 60-day option through specific performance because no consideration was paid or tendered to make the option irrevocable, and the written recital of consideration did not bar Burgess from proving nonpayment.


Bd. of Control of E. Mich. Univ. v. Burgess, 45 Mich. App. 183, 206 N.W.2d 256 (Mich. Ct. App. 1973)