Barrett v. Greenall

• Citation: 27 A.2d 599
• Parties: BARRETT v. GREENALL.
• Decision Date: 21 July 1942
• Court: Supreme Judicial Court of Maine (US)

27 A.2d 599

BARRETT

v. GREENALL.

Supreme Judicial Court of Maine.

July 21, 1942.

Exceptions from Superior Court, York County.

Action by Carleton S. Barrett against Thomas H. Greenall to recover money paid by the plaintiff to defendant on the purchase price of land, which land was sold by defendant to a third person. From a directed verdict for defendant, plaintiff brings exceptions.

Exceptions sustained.

Before STURGIS, C. J., and THAXTER, HUDSON, MANSER, WORSTER, and MURCHIE, JJ.

Hugh W. Hastings, of Fryeburg, and Frank S. Piper, of Cornish, for plaintiff.

Willard & Willard, of Sanford, for defendant.

MURCHIE, Justice.

This case comes to the court on exceptions by the plaintiff to the action of the justice presiding in the trial court in directing a verdict for the defendant at the close of the plaintiff's evidence, and a single exception to an evidence ruling which it is not necessary to consider.

Plaintiff's declaration, as amended, sets forth in two counts, one of which is a general omnibus count with a specification that reiterates the allegations of the other as to the sum of $300 paid by him to the defendant on named dates, that an oral or verbal contract for the sale of a cottage and lot by the defendant to the plaintiff at a price of $1,200 was entered into in June, 1939, when $100 was paid as a deposit or partial payment thereon and possession taken (there being no allegation that a time was then fixed for payment of the balance); that thereafter a further payment of $200 was made to apply on the purchase price, and the expiration date fixed at "on or before September 21, 1940"; and that on said expiration date, the defendant verbally notified the plaintiff that he had sold the property to a third party and "then refused to complete" the transaction, although the plaintiff was "prepared and ready to pay the balance" of the agreed purchase price.

As originally written, the count wherein the details of the alleged contract between the parties were set forth contained additional allegation that two weeks prior to the closing day aforesaid, it was orally agreed that plaintiff would relinquish his trade provided the defendant could sell the property for $1,500, and would, in the event of such a sale, repay to the plaintiff that sum of $300 which represented the deposits he had theretofore made, plus $150 or one-half the difference between the two named prices. The count, as amended, is limited to a declaration seeking recovery of the $300 alleged to have been paid in partial payment of the agreed purchase price. There is no allegation that plaintiff ever made a sufficient tender of the unpaid balance to the defendant, accompanied by demand for a conveyance, but allegation is that prior to the agreed expiration date the defendant verbally notified him that the "property had been sold to others".

The pleadings are somewhat confused because the defendant, at the term when plaintiff was allowed to amend his declaration, filed a specification of defense in which the original oral agreement and the receipt of $100 as a deposit thereon was admitted, with a period of two months allowed for payment of the balance, as were the tacts of an extension of time to June 1, 1940, and the later payment of $200 which, however, was asserted to have been paid after the extended expiration date, as rental, although it was to apply on the purchase price if plaintiff should still wish to purchase the property (there being no new assignment of an expiration date), whereas later, and before issue was framed, he filed amended pleadings in which he set up the Statute of Frauds as a bar to plaintiff's action on each count in his declaration as amended. While not material to the issue, his original specification carried denial that the premises had been sold to a third party and asserted that title thereto was still held by him.

It is undoubted on the record that the parties did make an oral contract for the sale of land which is unenforceable under the provisions of Paragraph IV of the Statute of Frauds, R.S.1930, Chap. 123, Sec. 1; that the property involved was a cottage and lot with a lake frontage of 125 feet and a depth of approximately 100 feet; that the plaintiff as the intended purchaser paid $100 to the defendant as the intended seller and entered into possession of the property at the time the trade was made; and that the agreed price was $1,200. It is equally clear that no written memorandum or note sufficient to satisfy the requirements of the statute was signed by the party to be charged therewith. Williams v. Robinson, 73 Me. 186, 40 Am. Rep. 352; Kingsley v. Siebrecht, 92 Me. 23, 42 A. 249, 69 Am.St.Rep. 486. In point of fact, a sufficient memorandum was not then possible since one essential term, i. e., the time for payment of the balance and completion of the transaction, had not been agreed upon between the parties.

On these facts the agreement between the parties was unenforceable in law if defendant, as he did, should interpose the statute as a bar to action, Lawrence v Chase, 54 Me. 196; Farwell et al. v. Tillson, 76 Me. 227; Thurlow v. Perry et al., 107 Me. 127, 77 A. 641; and the same thing is obviously true of the subsequent agreement for cancellation of the original trade and a division of the profit to be realized in selling the property to a third party at an increased price. If plaintiff was seeking merely to collect half of that profit, or to recover the money paid by him on account of the agreed purchase price on the basis of the defendant's verbal promise to repay it which was alleged in the original declaration to be a part of the revised oral contract between the parties, a directed verdict would have been entirely proper. Ample authority is found to support the rule, as it is stated in Heath v. Jaquith, 68 Me. 433, at page 436, that: "if the party having the burden of proof * * * introduces no evidence which, if true, giving to it all of its probative force, will authorize the jury to find in his favor, the judge may direct a verdict against him", or, as later phrased: "when it is apparent that a contrary verdict could not be sustained". Market & Fulton National Bank v. Sargent, 85 Me. 349, 27 A. 192, 35 Am. St.Rep. 376. See, also, Bennett v. Talbot, 90 Me. 229, 38 A. 112; Coleman v. Lord et al., 96 Me. 192, 52 A....