Bennett v. Moring

• Decision Date: 19 March 1974
• Docket Number: No. 73--182,73--182
• Parties: D. L. BENNETT et al., Plaintiffs-Appellants, v. Willis C. MORING and Sunnyside Missionary Baptist Church, Defendants-Appellees. . II
• Court: Colorado Court of Appeals

Page 741

522 P.2d 741

33 Colo.App. 390

D. L. BENNETT et al., Plaintiffs-Appellants, v. Willis C. MORING and Sunnyside Missionary Baptist Church,

Defendants-Appellees.

No. 73--182.

Colorado Court of Appeals, Div. II.

March 19, 1974.

Rehearing Denied April 9, 1974.

Certiorari Denied June 10, 1974.

Goodbee & Mason, P.C., Wendell R. Goodbee, Frank W. Davis, Colorado Springs, for plaintiffs-appellants

Grant E. Miller, Colorado Springs, for defendants-appellees.

PIERCE, Judge.

This is an appeal from a judgment denying specific performance of a real estate purchase contract against one of two named defedants. The trial court denied specific performance on the grounds that the contract did not comply with the statute of frauds.

The property involved in the alleged real estate purchase contract consisted of church buildings and grounds owned by defendant Sunnyside Missionary Baptist Church (Sunnyside). Plaintiff, Bennett, a minister for a newly-organized church which was seeking facilities of its own, observed that the Sunnyside property was for sale and contacted defendant Moring, Sunnyside's minister. Subsequently, Bennett contacted Rickard, a realty agent, who proceeded to draw up a contract providing for the sale of the property for a sum of $55,000. It was uncontested that Rickard was Sunnyside's agent for procuring a buyer for the property. (While there was no formal listing agreement between Rickard and Sunnyside, the written contract provided for a 6% Commission for the Realtor to be paid by the seller.) No closeing date was specified. The contract was executed by Bennett personally on July 11, 1972, and was presented to defendant Moring. The contract was approved by the Sunnyside congregation, and defendant Moring signed the contract at the request of the realty agent, but Moring disclaimed any power to execute the contract on behalf of Sunnyside.

Several months passed during which the buyer apparently encountered some difficulties in raising the purchase price. Finally, on September 21, the realty agent drew up a 'new' contract from setting out more specifically than in the original contract the financing arrangements arrived at by the buyer. The purchase price remained the same and no material changes affecting the seller's rights were involved. This contract was tendered together with a check for $10,000 to Sunnyside on September At trial, plaintiffs presented the original written contract as an exhibit. The defendants offered the second written contract into evidence, arguing that plaintiffs, by presenting the second writing, had repudiated the first contract and, in effect, made a new offer to purchase. They claim this offer was not accepted and never executed by either of the defendants. The trial court on sufficient evidence rejected defendants' argument and concluded that the original writing constituted the only valid contract, and held that the intended closing was to occur within a reasonable time. The court further found, as against Sunnyside, that the contract was in violation of the statute of frauds, since the alleged contract was for the sale of land, and was not signed either by the defendant church, C.R.S.1963, 59--1--8, or by its agent 'lawfully authorized by writing,' C.R.S.1963, 59--1--9. Since the plaintiffs produced no writing evidencing the agency of defendant Moring to sign on behalf of Sunnyside, the court concluded that the contract was void as against Sunnyside. However, the trial court awarded damages against defendant Moring, apparently upon the theory that signature on the contract warranted his ability to convey the property. Defendant Moring did not appeal the judgment against him.

21, 1972. The congregation rejected the 'new' contract on September 22, and on September 24 passed a further resolution not to sell the property to anyone [33 Colo.App. 393] at that time. The next day, men from the plaintiff church entered the Sunnyside Church using a key suppplied by the realty agent and began to redecorate the interior. The men were asked to leave the premises by member of the Sunnyside congregation and they did so. The following day the defendants received written notice from the plaintiffs that they would seek specific performance of the original contract.

I STATUTE OF FRAUDS

Plaintiffs appeal, arguing that the trial court erred in concluding the statute of frauds rendered the contract void as to Sunnyside. We agree with this contention.

While the trial court correctly concluded that Sunnyside could not be bound by defendant Moring's signature on the basis that there was no written agency between them it failed to consider plaintiffs' contention that the minutes of a Sunnyside congregational meeting provided a sufficient memorandum in conjunction with the written contract to satisfy C.R.S.1963, 59--1--8. As the issue presented by these documents is a question of law, it is a question which this court can resolve in the absence of findings and conclusions by the trial court. Helmericks v. Hotter, 30 Colo.App. 242, 492 P.2d 85.

At trial, plaintiffs introduced into evidence the 'Church Roll and Record' of the Sunnyside Church. The record was admitted without objection and contained an entry dated July 12, 1972, showing the...