Callahan v. Ganneston Park Development Corp.

• Decision Date: 29 August 1968
• Citation: 245 A.2d 274
• Parties: Robert L. CALLAHAN et al. v. GANNESTON PARK DEVELOPMENT CORP. et al.
• Court: Maine Supreme Court

Page 274

245 A.2d 274

Robert L. CALLAHAN et al. v. GANNESTON PARK DEVELOPMENT CORP. et al.

Supreme Judicial Court of Maine.

Aug. 29, 1968.

Lewis I. Naiman, Gardiner, for plaintiffs.

William M. Finn, Joseph B. Campbell, Augusta, for defendants.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY and WEATHERBEE, JJ.

WEBBER, Justice.

The principal defendant, Ganneston Park Development Corporation, was the owner of a large tract of land in Augusta. It caused a plan of the area showing a division into numbered lots and the location of proposed streets and ways to be prepared and recorded. It then sold certain lots by reference to this plan. It called its land development project Ganneston Park. Some time after recording its plan, Ganneston prepared and had recorded a 'Declaration' purporting to 'subject' Ganneston Park to certain 'terms, conditions, covenants, restrictions, agreements, easements and charges * * * for the protection and benefit of Ganneston Park and each lot owner therein.' Article XX of the 'Declaration,' the legal effect of which presents the principal issue here, provided: 'Corporation reserves the right to alter in any way the dimensions, boundaries, or location of any recorded but unsold building lot, common area or way, without obtaining a release or releases from any building lot owner or party having any interest in any building lot, whenever, in the sole discretion of Corporation, it is either necessary or desirable in the development of Ganneston Park.'

The plaintiffs, Dr. and Mrs. Callahan, purchased lot #11 by reference to the recorded plan. The plan shows this lot as bounded on its southwesterly side by Deer Run, a proposed street fifty feet wide, on its northwesterly side by 'Cul De Sac,' a proposed dead end street forty feet wide and terminating northerly of the Callahan lot in a circular turn around, on its northeasterly side by lot #16 and on its southeasterly side by lot #4. The deed from Ganneston to plaintiffs described the lot conveyed not only by number with reference to the plan but also by metes and bounds making both the 'Southeast line of the street shown on said plan as 'Cul De Sac" and the 'northeast line of Deer Run' monuments and boundaries. This deed also incorporated the 'Declaration' by reference in these terms: 'This conveyance is made subject to the covenants and restrictions contained in a certain Declaration recorded in the Kennebec County Registry of Deeds, in Book 1352, Page 288, which Declaration is incorporated herein and made a part hereof.'

Ganniston now proposes and intends to exercise its asserted rights under Article XX by eliminating 'Cul De Sac' and joining the area thereof to the area lying northwesterly thereof (now lots numbered 12 and 13 on the plan) to form three new building lots. Its alleged reason for this proposal is that savings will be effected thereby in installing sewer facilities. This proposed action was permanently enjoined below and appeal from that judgment brings the matter here.

Although the Justice below was not requested to and did not make specific findings of fact in connection with the final judgment (some findings, however, having been made when a temporary injunction was issued), we look to the evidence to see what factual conclusions find credible support therein. 'Inasmuch as the presiding Justice made no specific findings of fact, it must be assumed that he found for the (plaintiffs) upon all issues of fact necessarily involved.' Sanfacon v. Gagnon, (1933) 132 Me. 111, 113, 167 A. 695; Everett v. Rand, (1957) 152 Me. 405, 407, 131 A.2d 205. Under well established rules the judgment below will stand unless clearly erroneous.

The evidence (some of it admitted over objections for reasons hereinafter considered) would support findings that plaintiffs were shown lot #11 by an officer of Ganneston who sought to persuade them to purchase that lot; that this officer represented the lot as a 'corner lot' at the intersection of Deer Run and Cul De Sac, the latter street being forty feet wide; that this officer described Cul De Sac as a 'barrier zone,' which inferentially would mean a 'barrier' between lots #11 and #12; that Deer Run was not then finished but was 'roughly open;' that Cul De Sac was pointed out on the face of the earth, it being then 'in evidence' and 'roughed in;' that this officer represented that Cul De Sac was 'part of the future development' and 'would remain;' that he further stated that lot #11 was 'bound (sic) by a cul de sac;' that plaintiffs purchased lot #11, accepted a deed thereof without knowledge that the 'Declaration' was incorporated by reference on the second page thereof, and subsequently erected a home thereon costing approximately $40,000. Plaintiffs testified that they first saw a copy of the 'Declaration' after their purchase and while their home was being constructed; and that they saw a copy of the recorded plan before they purchased their lot.

The defendants vigorously contend that the deed and the 'Declaration' incorporated therein by reference constituted an integrated written agreement which may not be varied by parol evidence. Thus, they assert, there exists no legally binding agreement that lot #11 will remain a corner lot or that Cul De Sac will remain a proposed street and a barrier between lots #11 and #12. They further contend that the rights reserved by Article XX effectively negative any intention to dedicate Cul De Sac as a proposed street and as a result Ganneston has as yet made no offer to dedicate any of the streets and ways shown on its plan.

We deal first with the parol evidence issue. 'Oral evidence is not admissible to contradict or vary that which a writing expresses. If, in the writing, there be ambiguity, oral evidence is admissible to discover what the contracting parties had in view. Oral evidence, in such a case, does not usurp the authority of the written instrument; it is the instrument which operates; the oral evidence does no more than assist its operation. * * *. (t)he distinction between varying a written contract by oral evidence, and resorting to such evidence in aid of its construction, when not kept in mind, often leads to error. Every instrument in writing, although it cannot be varied or controlled by extrinsic evidence, must be read in the light of the circumstances surrounding its execution to effectuate its main end. * * *. An ambiguous contract will be construed most strongly against him who used the words concerning which doubt arises. * * *.' Bar Harbor & Union River Power Company v. Foundation Company, (1930) 129 Me. 81, 85, 149 A. 801.

Professor Corbin in his definitive work on Contracts makes the distinction clear in these terms:

'It is true that the language of some agreements has been believed to be so plain and clear that the court needs no assistance in interpreting. Even in these cases, however, it will be found that the court has had the aid of parol evidence of the surrounding circumstances. The meaning to be discovered and applied is that which each party had reason to know would be given to the words by the other party. Antecedent and surrounding factors that throw light upon this question may be proved by any kind of relevant evidence. * * * As long as the court is aware that there may be doubt and ambiguity and uncertainty in the meaning and application of agreed language, it will welcome testimony as to antecedent agreements, communications, and other factors that may help to decide the issue. Such testimony does not vary or...