Boesiger v. Freer

• Decision Date: 14 May 1963
• Docket Number: No. 8918,8918
• Citation: 85 Idaho 551,381 P.2d 802
• Parties: Max BOESIGER and Ruth H. Boesiger, husband and wife, Plaintiffs-Cross-Defendants and Appellants, v. Lewis C. FREER, Defendant-Cross-Complainant and Respondent, v. Mary E. COX, a widow, Cross-Defendant and Appellant.
• Court: Idaho Supreme Court

Page 802

381 P.2d 802

85 Idaho 551

Max BOESIGER and Ruth H. Boesiger, husband and wife, Plaintiffs-Cross-Defendants and Appellants, v. Lewis C. FREER, Defendant-Cross-Complainant and Respondent, v. Mary E. COX, a widow, Cross-Defendant and Appellant.

No. 8918.

Supreme Court of Idaho.

May 14, 1963.

Francis H. Hicks, Mountain Home, Richards, Haga & Eberle, Boise, for appellants.

Hawley & Hawley, Boise, for appellant Mary E. Cox.

Perce Hall, Mountain Home, Anderson, Kaufman & Anderson, Boise, for respondent.

KNUDSON, Chief Justice.

This action was commenced on February 17, 1959, by appellants, Max Boesiger and wife (hereinafter referred to as Boesiger) against respondent, Lewis C. Freer, seeking restitution and possession of farm lands in Elmore County allegedly belonging to Boesiger.

Freer, as cross-plaintiff, seeks specific performance of an alleged oral agreement entered into with cross-defendant Mary E. Cox (hereinafter referred to as Cox) for the sale and purchase of said farm lands. From a judgment in favor of respondent Freer, this appeal is taken by appellants, Boesiger and Cox.

On December 20, 1956, Cox, the then owner of the property in issue, entered into a written lease agreement with respondent under the terms of which the subject property was leased to Freer for a term commencing January 1, 1957 and ending January 1, 1958. The lease, inter alia, contains an option right on the part of Freer, as lessee, to renew the lease for an additional year and for two additional terms. It also provides that respondent shall have the first right to purchase the subject premises, if offered for sale, during the period covered by the lease, on the terms offered by the lessor Cox.

During 1957, Cox, with the consent of respondent, sold under contract three acres of the leased property, referred to as Davis Tract, under which contract there remained an unpaid purchase balance of $3000,00

Beginning October 1, 1957, Freer and Cox exchange correspondence relating to a request by Freer for a reduction of rental in the event of an extension of the lease term for the year 1958, and also relating to an offer of sale by Cox. They thereafter orally discussed the subject of sale by telephone, at the dwelling on the subject property, and also at a meeting of the parties at the office of attorney Perce Hall on about February 3, 1958.

The evidence is to some extent conflicting as to what was said by the respective parties during such discussions. Shortly after the meeting at Mr. Hall's office Cox unilaterally signed an 'Agreement' bearing date of February 8, 1958, under the terms of which Cox agreed to sell the subject property to Max A. Boesiger, Inc., for the stated sum of $26,500.00 and contained an acknowledgment of having received a down payment of $2000.00. Immediately after signing said agreement Cox left for Texas and returned shortly prior to March 17, 1958. On said last mentioned date Cox executed another 'Agreement' under the terms of which Cox agreed to sell the subject property to Max A. Boesiger Real Estate, Inc. for a stated consideration of $16,625.00. Under date of April 8, 1958, Cox executed a warranty deed which in terms conveyed the subject property to Boesiger for a stated consideration of $17,790.00. It is under said deed that appellant Boesiger claims title to and right of possession of the property involved.

Essentially the assignments of error challenge the sufficiency of the evidence to sustain the findings of fact, conclusions of law and judgment. After thoroughly examining the record, we conclude that each and all of the findings of fact made by the trial court are supported by substantial competent evidence.

One of the principal issues raised by this appeal is whether there has been sufficient part performance of the oral agreement as to justify the court in regarding the case as being relieved from the operation of I.C. § 9-503 of the Statute of Frauds.

Not only does the doctrine of part performance, under certain circumstances, authorize the taking of a verbal contract out of the operation of said statute, but our statute (I.C. § 9-504) specifically directs that said section (I.C. § 9-503) must not be construed 'to abridge the power of any court to compel the specific performance of an agreement, in case of part performance thereof.' While the doctrine of part performance and § 9-503 each mark a relaxation of the statute of frauds, a further relaxation should not be permitted by failing to question the sufficiency of the act or acts which are relied upon as constituting part performance within the doctrine and said statute.

What constitutes part performance must depend upon the particular facts of each case and the sufficiency of particular acts is a matter of law.

In the instant case the acts relied upon by respondent as constituting part performance on his part are (1) improvements made upon the subject property (2) possession under oral contract (3) payment of $619.95 of purchase price, and (4) sale by respondent of his livestock (cows and calves) during December and January in order to raise money with which to make the down payment ($3000.00) as agreed upon, resulting in substantial financial loss to respondent.

The contention that improvements made by respondent constitute part performance is only casually mentioned in respondent's brief. Respondent testified that the improvements consisted of 'removing some partitions in a barn' which he described as being 'more to repair', and 'changing some ditches.' The trial court did not find that respondent had made any substantial improvements. In order to be considered as constituting part performance of a contract such as is here considered, improvements must be substantial in relation to the value of the property involved. Anderson v. Whipple, 71 Idaho 112, 227 P.2d 351.

In its findings the court did not clearly state at what time respondent's possession of the subject property became referable to the agreement of sale. The court did find that 'Freer went into possession of the leased premises shortly after December 20, 1956, and has remained in possession of the premises ever since that date.' (Par. III of Findings) Possession is also mentioned in Par. VIII of the Findings wherein reference is made to the meeting of Cox and Freer in the office of attorny, Perce Hall, on February 4, 1958, and the court stated 'possession of the property was delivered immediately to Freer although Freer agreed to pay the interest on the mortgage from December 1, 1957, the date considered to be that on which the parties orally reached agreement.'

Where possession is relied upon as part performance to take the case out of the statute of frauds the taking of the possession is of great importance. In the instant case respondent originally obtained possession under his lease agreement with appellant Cox and his possession was continuous until the time of trial of this case. The general rule applicable in cases where the possession has been so commenced is stated in 81 C.J.S. Specific Performance § 59, p. 546, as follows:

'However, the continuance of a possession assumed or commenced before the making of a contract, under some right or in some capacity other than that created by, or resulting from, such contract, is not such a taking and holding of possession as may, either alone or in connection with other acts, be regarded as part performance of the contract.'

It does not follow that the taking of possession of property prior to making an oral contract relating thereto will prevent such possession, when continued after the contract is made, from being regarded as an act of part performance thereof. Competent evidence may clearly show that possession, after the making of an oral contract, was definitely referable to the contract. However the possession of land to constitute a part performance of a contract invalid under the statute of frauds, must be actual, notorious and in pursuance of the contract. Johnson v. Flatness, 70 Idaho 37, 211 P.2d 769; Peterson v. Hagaman, 162 Kan. 222, 175 P.2d 118; 49 Am.Jur. 734.

In the case before us the district judge stated in his memorandum decision 'that he [respondent] is entitled to specific performance because his possession after January 1, 1958, is referable to the oral contract under the evidence * * *.' However the court did not find that it was such a possession as constituted part performance.

Referring to the contention that respondent partly performed the oral agreement by paying $619.95 of the purchase price, it is not entirely clear that the trial court considered that respondent did so partly perform. In the findings the court specifically referred to certain payments which had been made by respondent following which the court said:

'which payments resulted in an overpayment of rent for 1957 by the sum of $619.95. It was the intent and understanding of Freer and Cox that there would be an accounting between them to establish the over-payment of rent due on the lease and it was further understood that any over-payment of rent would apply upon the purchase price of the property.'

The language used indicates that the payments aggregating $619.95 were originally considered and made as rental payments. If respondent relied upon said payments as constituting part performance it was his burden to show by clear and convincing evidence that such was a fact. However, assuming that said amount had been paid to apply on the purchase price, such payment would not by itself constitute such part performance as to justify specific performance of the oral contract since it is only a comparatively small part of the purchase price ($25,000.00). Raff v. Baird, 76 Idaho 422, 283 P.2d 927.

The court found that in reliance upon the oral agreement respondent, during December, 1957, and January, 1958, sold approximately 150 head of his cattle in order

'to pay off the mortgage on the cattle and still have...