Bush v. Putty

• Citation: 566 S.W.2d 819
• Parties: Henry T. BUSH and Ivy D. Bush, his wife, Appellants, v. James Larry PUTTY, Jr. and Joyce Putty, his wife, Appellees.
• Decision Date: 26 May 1978
• Court: Court of Appeals of Kentucky

Page 819

566 S.W.2d 819

Henry T. BUSH and Ivy D. Bush, his wife, Appellants, v. James Larry PUTTY, Jr. and Joyce Putty, his wife, Appellees.

Court of Appeals of Kentucky.

May 26, 1978.

Paul K. Turner, Turner, Dixon, Kemp & Fletcher, Hopkinsville, for appellants.

Ben B. Wright, Jr., Wright, Wright & Whitfield, Hopkinsville, for appellees.

Before HOWERTON, LESTER and REYNOLDS, JJ.

HOWERTON, Judge.

The appellees (hereinafter referred to as Putty) sued appellants (hereinafter referred to as Bush) for specific performance of a contract to convey a farm, and for an abatement of a portion of the purchase price. Bush answered the complaint and asked that Putty either perform the contract at the agreed purchase price or, in the alternative, that the contract be rescinded, with the $100 down payment to be returned to Putty.

On January 8, 1977, the Christian Circuit Court directed Bush to convey his farm to Putty for an abated purchase price of $76,320.00. It is from that judgment that this appeal is taken.

Bush, who was 83 years old at the time of executing the agreement on February 27, 1976, had owned the farm since October, 1963. Putty had rented the farm in question from Bush, from 1971 until January, 1976. The parties reached an oral agreement whereby Putty would purchase the farm for $90,000.00. Putty had his attorney draft a contract of sale, which was signed by the parties on February 27, 1976.

The contract recited the fact that, "the seller being this day the owner of approximately 125 to 130 acres of land. . . . " The former deed described the land as consisting of five parcels totaling approximately 130 acres. If the five parcels described in the deed were computed separately, the total acreage amounted to 125.68 acres. The contract further provided that in the event a survey of the farm was required, the cost would be divided equally between the seller and the purchaser.

The property was surveyed, and the actual area of the farm measured 105.99 acres, a variance of approximately 18 percent. Putty refused to pay the agreed price of $90,000.00, and offered Bush the sum of $73,400.00.

There was never any discussion of a cost per acre, and the record reveals that there was no discussion of acreage until the contract was signed. There is no indication of any fraud or deceit on the part of Bush or Putty, and both parties were familiar with the farm as a whole and its boundaries, although neither party knew the exact acreage contained within the boundary.

The case was tried before the court by deposition. The court made the following findings of fact and conclusions of law:

FINDINGS OF FACT

2. The subject property was represented by defendants to be approximately 125 to 130 acres.

3. The property, by a survey, contained 105.99 acres.

4. Plaintiffs lost the opportunity to farm the property during 1976, suffered losses from nonuse of equipment and fertilizer purchased for this property, and were unable to purchase other property during the period that this sale was pending.

5. Plaintiffs believed and relied upon defendants' representation that the farm contained 130 acres, more or less, and was entitled to rely upon same.

6. Plaintiffs did not purchase the property without concern for the acreage therein.

CONCLUSIONS OF LAW

1. Plaintiffs are entitled to relief in equity where the shortage of acreage in a land contract exceeds 10 percent (10%), as it does in this case.

2. The plaintiffs are entitled to specific performance of the contract with an abatement of purchase price, based on the reduced number of acres in the farm.

3. Defendants have not established the defenses of estoppel, rescission or defendants' "Counterclaim" for damages.

The judgment ordered Bush to convey the farm for the sum of $76,320.00.

We have reviewed the depositions and the entire record, and we have some factual differences with the trial court, although most of our differences relate to facts in the record which were omitted in the findings by the court. The differences and omissions appear to be clearly erroneous and significant in that they formed the basis for the court's conclusions and ultimate judgment. We also have differences with the conclusions reached by the trial court. We would point out that where a case is tried entirely by deposition, the appellate court is in as good a position to judge the credibility of witnesses as is the trial court. We may, therefore, make some independent evaluation of the evidence. Burchett v. Jones, Ky., 291 S.W.2d 32 (1956). CR 52.01.

Bush argues that the correct remedy for this case was rescission of the contract based upon the principle of mistake, as was done in McGeorge v. White, 295 Ky. 367, 174 S.W.2d 532 (1934). Bush also argues that specific performance with an abatement of purchase price is not an authorized or proper remedy in Kentucky.

We conclude that this contract should have been rescinded. As to the question of whether or not specific performance with an abatement of purchase price is a proper remedy in Kentucky, we only conclude that the remedy is not appropriate for the facts in this case.

We agree with the finding by the trial court that the property was represented by Bush to be approximately 125 to 130 acres. It must be noted, however, that this was the description contained in Bush's deed. We would also agree that Putty was somewhat concerned about the acreage he would purchase, just as anyone would be. But, this case is unique in the fact that Putty had been in possession of the farm for five years before the agreement was made by Bush to sell and Putty to buy the farm for $90,000.00. Putty knew as well as Bush what he was acquiring for the agreed purchase price.

We would also agree with the finding that the actual acreage contained in the farm was 105.99 acres. This constitutes a substantial difference and considerably more than a ten percent variance. We fail to find any serious consequence from Finding # 4 by the trial court, and note that the trial court omitted the fact that Putty could have leased the farm from Bush during 1976 and carried out a farming operation.

The trial court concluded that Putty was entitled to relief because the shortage of acreage exceeded ten percent, and also that Putty was entitled to specific performance with an abatement of the purchase price based on the reduced number of acres. The remedy of...