Burke v. Fine, 35504

• Decision Date: 15 February 1952
• Docket Number: No. 35504,35504
• Citation: 51 N.W.2d 818,236 Minn. 52
• Parties: BURKE v. FINE et al.
• Court: Minnesota Supreme Court

Page 818

51 N.W.2d 818

236 Minn. 52

BURKE v. FINE et al.

No. 35504.

Supreme Court of Minnesota.

Feb. 15, 1952.

Syllabus by the Court.

1. The doctrine of part performance sufficient to take an oral contract out of the statute of frauds may rest either on the fraud theory or the unequivocal reference theory.

2. Where plaintiff has failed to bring his case within the confines of either of these theories, specific performance of the oral contract must be denied.

Benedict S. Deinard and Leonard, Street & Deinard, all of Minneapolis, for appellants.

Clifford W. Gardner, St. Paul, for respondent.

FRANK T. GALLAGHER, Justice.

This was a suit commenced in August 1945 for the specific performance of an alleged oral contract to convey a vacant lot to plaintiff. Plaintiff joined as defendants the four co-owners of the lot and certain state officials. Before trial, the court dismissed the action as against the state officials.

The oral contract was allegedly entered into about April 3, 1943, during a conversation between plaintiff, an attorney, and Jacob Fine, who owned the lot with his three brothers, the defendants Adolph S. Fine, Benjamin Fine, and Max Fine, as tenants in common. After the action had been commenced, but before it was brought on for trial, Jacob Fine died, and his wife, as administratrix of his estate, was substituted. At the trial in June 1947, two friends of plaintiff, Francis McGrath and John Duell, testified about the details of the conversation which had occurred four years earlier. Plaintiff claimed that Adolph, Benjamin, and Max Fine were bound by the alleged contract on the theory that the four brothers were partners and that Jacob was authorized to contract to sell the whole lot. Plaintiff also claimed that the contract was taken out of the statute of frauds by virtue of his having taken possession of the lot under the contract and having made certain valuable improvements. No payment was ever made, but at the commencement of this action plaintiff paid into court $1,477.98, representing the alleged contract price.

The trial court found, among other things, that defendants and agreed among themselves to act as copartners and joint adventurers with respect to the purchase, management, use, and sale of various parcels of land, among which is the lot here in dispute; that plaintiff knew that defendants professed to be engaged as copartners and joint adventurers with respect to the lot; that on or about April 3, 1943, Jacob Fine, acting for himself and as agent for the other defendants, entered into an oral agreement by which defendants sold, transferred, and delivered to plaintiff all the equitable title to, interest in, and possession of the lot; and that plaintiff took possession thereof in reliance upon the oral contract and made permanent and valuable improvements. The court concluded that plaintiff was entitled to have a decree ordering the right, title, and interest of defendants transferred to plaintiff. Defendants' motion for amended findings of fact and conclusions of law or, in the alternative, for a new trial was denied. Defendants appeal from the judgment.

Defendants contend that the evidence does not sustain the finding that an oral agreement was made or the finding that Jacob Fine was authorized to contract for the sale of the entire lot. Defendants also raise several other issues. We find it unnecessary to decide these questions, since it is our opinion that defendants are correct in their contention that plaintiff has failed to show part performance sufficient to take the contract out of the statute of frauds.

The property involved (lot 6 of block 12, Lane's Highland Park, an addition to the city of St. Paul) fronts on the south side of Ford Parkway at Prior avenue and lies directly to the rear of plaintiff's home. Before 1943, the south end of the lot was part of a high hill, and other parts of the lot were as much as 15 feet below the grade of Ford Parkway. It was described as more or less like a jungle and was covered with underbrush and debris. The only trees on the lot were crooked box elders. Plaintiff went onto lot 6 at times when playing horseshoes on his lot, immediately adjacent to lot 6. He went onto the west part of lot 6 at different occasions during the period from 1940 to 1942 in taking a short cut through the lot. According to plaintiff's testimony, rats had come out of the dump on lot 6, and in April 1943 he was trying to burn them out.

In the spring of 1943, plaintiff and Duell, who had had some association with him for years and often visited at his home, spent week ends and holidays working in plaintiff's yard. On April 3, 1943, while they were working on lot 6, Jacob Fine appeared, at which time plaintiff claims that the alleged contract was formed. Subsequent to this meeting, plaintiff hired a bulldozer to rough-grade lot 6, had it leveled, planted a lawn and hedge along the north and west sides, and planted some trees, bushes, and plants on the lot. In addition to the labor furnished by plaintiff and Duell, the cost of these improvements was $407. Plaintiff contends that when all the elements are considered, including his and Duell's labor, the cost of a tool shed, and the value of the 570 square feet which were added to the south end of lot 6 through the vacation of the alley, all of which was paid for by plaintiff, the total value of the improvements exceeds the $1,193.40 alleged in the complaint.

The doctrine of part performance as it has been developed by the courts is essentially a compromise between the policy of the statute of frauds and the need presented by some cases for at least some flexibility in applying it. Handler, Cases and Materials on the Law of Vendor and Purchaser, pp. 66--67. Application of the doctrine in some cases has been explained by the extreme hardship which would result if the statute were applied, Brown v. Hoag, 35 Minn. 373, 29 N.W. 135; Slingerland v. Slingerland, 39 Minn. 197, 39 N.W. 146; while in others the court has felt that the policy behind the statute was adequately protected if acts of performance unequivocally referable to the contract were shown, Shaughnessy v. Eidsmo, 222 Minn. 141, 23 N.W.2d 362, 166 A.L.R. 435. Of course, many cases present both possibilities. The attitude toward the doctrine of part performance varies in the different jurisdictions; but in Minnesota, since the Shaughnessy case, specific performance of an oral contract may rest on either the so-called fraud theory or the unequivocal reference theory. Ehmke v. Hill, Minn., 51 N.W.2d 811. Thus, where plaintiff shows that his acts of part performance in reliance upon the contract have so altered his position that he will incur unjust and irreparable injury in the event that defendant is permitted to rely on the statute of frauds, equity requires that the contract be specifically enforced. Brown v. Hoag, 35 Minn. 373, 29 N.W. 135, supra. Or where the relationship of the parties, as shown by their acts rather than by the alleged contract, cannot reasonably be explained except by reference to some contract between them, the oral contract is taken out of the statute of frauds and may be specifically enforced. Shaughnessy v. Eidsmo, supra. It is our opinion that plaintiff here has failed to show part performance sufficient to satisfy either of these theories.

The behavior of the parties in this case...