Wood v. Wood, 750617

• Decision Date: 23 April 1976
• Docket Number: No. 750617,750617
• Citation: 216 Va. 922,224 S.E.2d 159
• Parties: Wendell W. WOOD v. Elva W. WOOD, Individually and as Executrix of the Estate of W. Warren Wood, Deceased. Record
• Court: Virginia Supreme Court

Page 159

224 S.E.2d 159

216 Va. 922

Wendell W. WOOD v. Elva W. WOOD, Individually and as Executrix of the Estate of W. Warren Wood, Deceased.

Record No. 750617.

Supreme Court of Virginia.

April 23, 1976.

Stuart F. Carwile, Charlottesville (David W. Kudravetz, Carwile, Kudravetz &amp Krumm, Charlottesville, on briefs), for appellant.

Herbert A. Pickford, Charlottesville (William G. Barkley, Belt & Pickford, Charlottesville, on brief), for appellee.

Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, HARMON, POFF and COMPTON, JJ.

COMPTON, Justice.

We consider a purchaser's appeal from the denial of his request for specific performance of a contract for the sale of real estate. The trial court found that time Became of the essence of the contract, and we review that determination.

The facts are without substantial conflict. On July 21, 1971 plaintiff Wendell W. Wood, the purchaser, agreed to buy from sellers W. Warren Wood and Elva W. Wood, his wife, a 10.75-acre tract of land in Albemarle County for $100,000. The property was owned by W. Warren Wood, his wife having only an inchoate dower interest.

The contract provided, inter alia, that 'date of settlement and closing of this transaction shall be within one hundred twenty (120) days from date hereof' and that purchaser would 'forthwith proceed in good faith' to have the property rezoned. The writing further provided that if the purchaser was unsuccessful in securing the rezoning within the 120 days, he could 'at his sole option' declare the contract null and void in which event the $1,000 paid upon execution would be refunded by sellers. The contract also provided that it was to be binding on the executors, heirs, and estates of the parties. In the course of these proceedings below, the parties stipulated that the contract did not provide that time was of the essence.

The purchaser subsequently proceeded in good faith to have the property rezoned. When the board of supervisors denied his rezoning application on September 16, 1971, he contested this ruling in a suit for declaratory judgment. The chancellor who presided in the present suit decided in that case on April 11, 1972 that the rezoning petition should be remanded to the board for further consideration. No final order was sought by purchaser in the zoning case on the advice of 'certain county officials' who indicated the zoning application would be granted if purchaser would wait the expiration of one year from the date of his original request, and then refile.

On January 5, 1972, the three parties to the contract agreed, by executing an addendum typed on the reverse of the contract, 'to extend this said contract for six months from the 21st of November 1971 (the final day of the 120-day term) to May 21st, 1972.' Purchaser thereafter met with seller Wood on May 26, 1972 and the two agreed to extend further the 'expiration date' of the contract. On May 30, 1972, seller Wood sent a letter to purchaser stating 'I hereby agree to extend the original agreement dated July 21 1971 from its original expiration date of May 21 1972 to Sept.1st 1972.' That letter was not signed by Wood's wife.

On June 1, 1972, W. Warren Wood died testate and his wife, the defendant here, qualified as executrix of the estate. She is sued individually and in her representative capacity. By his will, Wood left the bulk of his estate, including the property in question, to defendant. She testified that about two weeks after his death, she learned for the first time of her husband's letter to the purchaser of May 30, 1972.

On August 31, 1972, purchaser went to defendant's home and stated his desire to close the transaction, handing her a letter so stating written by his attorney the day before. The stipulation shows defendant 'did not at that time object in any manner to consummating the closing of the property.' There were no further communications between the parties until September 22, 1972, when purchaser's attorney received a letter from defendant's attorney advising that defendant considered 'the sales contract of July 21, 1971 to be of no effect.' Defendant testified that after August 31, 1972 'I just decided I didn't want to sell it. . . . (T)he way property was going up, I thought it was worth more than what he had offered us for it.'

On October 2, 1972, defendant's attorney remitted the $1,000 earnest money deposit to purchaser. Purchaser's counsel returned defendant's check a week later insisting that purchaser had a valid and enforceable contract. This suit ensued about a month later.

After considering the stipulation, and the ore tenus testimony of the purchaser and defendant, the chancellor...