Brewood v. Cook

• Decision Date: 30 June 1953
• Docket Number: No. 11559.,11559.
• Citation: 207 F.2d 439,92 US App. DC 386
• Parties: BREWOOD v. COOK et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

92 US App. DC 386, 207 F.2d 439 (1953)

BREWOOD v. COOK et al.

No. 11559.

United States Court of Appeals District of Columbia Circuit.

Argued March 18, 1953.

Decided June 30, 1953.

Petition for Rehearing Denied September 15, 1953.

Mr. R. Duncan Clark, Washington, D. C., with whom Messrs. Clyde D. Garrett and Andrew T. Altmann, Washington, D. C., were on the brief, for appellant.

Mr. Byron N. Scott, Washington, D. C., for appellees.

Before PRETTYMAN, BAZELON and FAHY, Circuit Judges.

Petition for Rehearing en Banc Denied September 15, 1953.

FAHY, Circuit Judge.

The District Court decreed specific performance of a contract it found had been entered into by the appellant to sell and convey to appellees, husband and wife, two lots of land which he owned in the District of Columbia. The position of appellant in seeking reversal is that no contract was made, that evidence with respect to it was admitted in violation of the parol evidence rule, and that if a contract properly proved did exist it was unenforceable under the statute of frauds because not evidenced in writing.¹

The controverted transaction arose in connection with negotiations for the purchase by appellees of a tract of land which as a whole contained ten lots improved by a substantial dwelling house. Eight of the lots, with the improvements, were sold by appellant to appellees under a written contract which the parties fully performed. The price paid was $49,500. Appellees claimed there was a further agreement that the remaining two lots would also be conveyed to them, at a price and on terms respecting taxes agreed upon, at such time as appellant's wife became reconciled to parting with all of the land, which she was then reluctant to do. Appellant, as has been stated, was himself the owner of these lots. Appellees assert that about two years later appellant advised them that his wife had then become reconciled to conveyance of the remaining two lots, but he insisted upon a higher price than appellees claim had been agreed upon.

Considerable testimony was taken and carefully considered by the District Court, Judge McLaughlin sitting. The record reflects that both judge and counsel were well aware of the factual and legal issues involved, namely, whether there had been a meeting of the minds as to the two lots, whether the written contract which was in fact carried out constituted the whole agreement, whether parol evidence could be admitted to establish another contract covering the remaining two lots, and whether, assuming proof by competent evidence of a valid oral contract for the two lots, the statute of frauds prevented its enforcement.

Since the case must stand on its special facts we need not review in detail the conflicting evidence. We cannot say how we would resolve the factual issues were this task primarily for us. We are clear, however, that the findings worked out from the testimony by the trial judge rest sufficiently in the evidence to preclude our setting them aside under the rule governing our review. Rule 52(a), Fed.R.Civ.P.² We venture to say that it is not possible to reach a solution reflecting the factual situation with absolute certainty. While this may be due in part to appellees' failure to obtain written evidence of the asserted contract for the two lots, as should have been done, nevertheless the findings which the trial court made infuse the evidence with sufficient substance and form to withstand challenge on appellate review.

The court found that the disputed contract covering the two lots was made, was collateral to and an essential inducement of the written contract which was performed, that accordingly the former could be established by parol evidence, that possession of the two lots was entered into by appellees in the belief and under the theory that they had a binding contract for their purchase, that appellees made permanent improvements of substantial value upon them, and that the condition governing the time of conveyance by appellant was met, whereupon his oral agreement to convey became binding upon him.³

This resolution of the facts by the District Court goes far toward solving the legal issues as well. For the law does not exclude proof by parol evidence of a contemporaneous agreement in addition to and not inconsistent with or a variation of a written agreement between the same parties. Bell, Rogers & Zemurray Bros. v. Jenkins, 1930, 221 Ala. 652, 130 So. 396; Cox v. Fleisher Const. Co., 1929, 208 Iowa 458, 223 N.W. 521; Roof v. Jerd, 1929, 102 Vt. 129, 146 A. 250, 68 A.L.R. 235. See, also, Champlin Refining Co. v. Gasoline Products Co., 1 Cir., 1928, 29 F.2d 331. Where the parties did not adopt the writing as a statement of the whole agreement, parol evidence of an additional one is admissible. 3 Williston, Contracts § 636 (1936). This rule is sometimes referred to as the partial integration doctrine, due to the fact that only part of the whole transaction is integrated in the writing. As an instance where the facts would not permit application of this rule, see Seitz v. Brewers' Refrigerating Mach. Co., 1891, 141 U.S. 510, 517, 12 S.Ct. 46, 35 L.Ed. 837. The writing was held not to express the whole agreement of the parties in O'Hanlon v. Grubb, 1912, 38 App.D.C. 251, 37 L.R.A.,N.S., 1213; United States Navigation Co. v. Black Diamond Lines, 2 Cir., 1942, 124 F.2d 508, certiorari denied, 315 U.S. 816, 62 S. Ct. 805, 86 L.Ed. 1214; and Cohn v. Dunn, 1930, 111 Conn. 342, 149 A. 851, 70 A.L.R. 740. Additional support for the admissibility of the evidence now in question is afforded by decisions which hold that parol evidence will be received to prove a contemporaneous agreement which was an inducement to the one placed in writing. Stewart v. Meadows, 8 Cir., 1922, 282 F. 861; Mallard v. Ewing, 1936, 121 Fla. 654, 164 So. 674; Blunk v. Kuyper, 1950, 241 Iowa 1138, 44 N.W.2d 651; Geyser Ice Co. v. Sharp, Tex.Civ. App.1935, 87 S.W.2d 883; Mason v. Cater, 1921, 192 Iowa 143, 182 N.W. 179. See, also, Sale v. Figg, 1935, 164 Va. 402, 180 S.E. 173.

The contract respecting the two lots having been established by evidence thus admissible the appellant, for reasons now to be stated, may not set up the statute of frauds to bar its enforcement against him. With adequate supporting evidence the court found that appellees would not have executed the written contract or accepted conveyance of the eight lots and improvements, at a cost to them of $49,500, if it had not been for the inducement of appellant's simultaneous agreement to convey subsequently the two remaining lots. This factual situation brings the case within the rule that one who thus induces another by a parol agreement to change his position so materially that unless the inducing agreement is enforced a fraud results, is estopped to set up the statute of frauds to bar such enforcement. This rule is supported by numerous decisions of the courts and other authorities. An extensive discussion of the cases and texts, the latter including 2 Pomeroy, Equity Jurisprudence § 804, and Bigelow, Estoppel p. 640 (6th ed.), is contained in Vogel v. Shaw, 1930, 42 Wyo. 333, 294 P. 687, 75 A.L.R. 639.⁴ We need not and do not decide whether the entering into possession of the two lots by appellees, found by the trial court to be referable to the oral contract, and the making of improvements thereon, in and of themselves permit appellees to rest upon the part performance rule to take this case out of the statute of frauds;⁵ for while possession was taken with appellant's acquiescence, and while the court did find that permanent improvements of substantial value had been placed upon the two lots by appellees, there is also the additional finding explicitly made by the court below, as follows,

"The plaintiffs would not have executed the written contract of May 19, 1948, or accepted conveyance of the property covered thereby had it not been for the inducement of the simultaneous agreement to subsequently convey Lots 32 and 33 for $2,500.00."

As the evidence shows and as is implicit in this finding the protection which the two lots would afford to the home and to the other lots,⁶ for which as we have said appellees paid appellant $49,500 under the May 19, 1948, contract, was a critical inducing factor to the main purchase. Once the trial court's finding in this regard is accepted it is obvious that appellees' situation was very materially altered, in a manner which otherwise would not have occurred, by their reliance upon the oral agreement also to convey the two lots. The situation created by appellant's failure to convey could not be rectified by rescission or by an action for damages for breach of contract. The conclusion of the trial court, therefore, that this oral contract, though not evidenced in writing as required by the statute of frauds, was enforceable in equity, is fully supported by the doctrine of equitable estoppel to which we have referred. Whitney v. Hay, 1901, 181 U.S. 77, 21 S.Ct. 537, 45 L.Ed. 758, affirming 15 App.D.C. 164, 1899, also supports this position though there it was part performance alone, without the element of inducement here present, which moved the court to decree specific performance of the oral agreement respecting land notwithstanding the statute of frauds. See, also, other cases enumerated in note 5, supra, and see note 4, supra.

There is a further question raised by appellant not thus resolved, and which goes to the foundation of appellees' case. Appellant contends the alleged contract respecting the two lots was, all else aside, nudum pactum in that the condition, namely, reconciliation of the wife to the conveyance, prevented mutuality at the time the alleged contract was made. Title was not in the wife but in appellant, and the condition stated did not relate to price but only to her psychological adjustment to disposal of all the land by appellant. When this adjustment was made, appellees were notified and were...