Cobb v. Cougle

Decision Date05 February 1976
Citation351 A.2d 110
PartiesJames COBB v. Louise COUGLE.
CourtMaine Supreme Court

Paine, Lynch & Weatherbee by Peter M. Weatherbee, James G. Lynch, Bangor, for plaintiff.

Twitchell, Gray & Linscott by Kenneth Jordan, Frederick J. Badger, Jr., Bangor, for defendant.



James Cobb brought an action against Louise Cougle seeking specific performance of an agreement allegedly made by her to convey certain real estate to him, and damages of $1,000. In the alternative Cobb asked damages of $7,500. Cougle filed a counterclaim which asserted that Cobb had caused damages to her real estate in the amount of $1,000. The Superior Court (Penobscot County) granted specific performance for the plaintiff and 'dismissed with prejudice' the defendant's counterclaim. The defendant appeals the grant of specific performance. We deny her appeal.

The judgment could have rested on the following facts: 1

Cobb, a resident of New Jersey, was interested in acquiring real estate in Maine. He was introduced to Cougle by Kethleen and Richard Hanscom, the defendant's daughter and son-in-law. Discussions between Cobb and Cougle regarding the sale of the latter's property came to fruition on April 12, 1971 when the plaintiff paid the defendant $1,500 in cach and the parties signed a typewritten document which recited,

Louise Cougle received $1,500.00 April 12, 1971 from James Cobb for part payment on house and surrounding property situated in the town of Corinna, consisting of 75 acres more or less. Balance of $1,500.00 to be paid July, 1971.

The agreement was entered into with the oral understanding that, after title to the property had passed to Cobb, Mrs. Cougle, an elderly woman, could continue to live on the premises for the rest of her life. An attorney of the defendant's choosing was retained to prepare a deed conveying the property from the defendant to the plaintiff.

When Cobb returned to Maine in July, he and Cougle were advised by the attorney that it would be necessary to have the property surveyed before the sale could be consummated, and the plaintiff advanced $145 to this end to the attoney. Also in July, the plaintiff entrusted Kathleen Hanscom with $1,000 in cash to hold in 'escrow' until the deed was prepared. He subsequently mailed the Hanscoms a check for $500 which, although it was made payable to the order of Richard Hanscom, was intended to be added to the escrow fund, any was so treated by the Hanscoms when they received it in July. Cobb told Cougle that she should feel free to 'borrow' from the $1,500 fund if she needed money before the deed was readied. Finally, the plaintiff repaired a leaky section of the roof of the defendant's house during his July visit.

In late August or early September, the defendant withdrew-and never returned-$100 from the $1,500 of the plaintiff's money held by her daughter. Cobb came to Maine for the Labor Day weekend, did further repairs on the house, and was informed by Cougle that the deed had not yet been prepared. The plaintiff gave the defendant an additional $40 toward the cost of the survey, which she remitted to the attorney.

Cobb was once again in Maine during the months of November and December. He and Cougle discussed the possibility of installing a furnace in the house which would enable her to remain there during the winter months, and Cobb consulted a local bank concerning financing for this venture. Before the installation of a furnace could begin, however, the relationship between the plaintiff and the defendant, which until this time had been cordial, deteriorated. In early December, Cougle told Cobb that she believed that the property was worth more than $3,000, and refused to complete the deal at that price. The plaintiff initiated legal action on December 24, 1971.

The court ordered that the defendant convey the real estate to the plaintiff upon the payment by Cobb to Cougle of the amount remaining due under the April 12, 1971 agreement, which the court found to be $1,400. 2 Additionally, the order directed 'That said conveyance from Louise Cougle to James Cobb is to be subject to a life estate for the benefit of Louise Cougle during the lifetime of Louise Cougle to live on said premises jointly with James Cobb.' 3

The five issues identified by the defendant on appeal may fairly be condensed into three questions:

I. Was the court's finding that the agreed price of the real estate was $3,000 supported by credible evidence?

II. Was the court's finding that the defendant should have the right 'to live on (the) premises jointly with (the plaintiff)' supported by credible evidence?

III. Was the court's order of specific performance warranted?

We answer all three questions in the affirmative.


The defendant's first issue requires no more than a brief response. The court's implicit factual finding that the agreed price of the real estate was $3,000-not $4,000 as claimed by the defendant-is supported by credible evidence and is therefore not clearly erroneous. Leighton v. Leighton, Me., 329 A.2d 164, 166 (1974). Findings of fact, whether express or implied, shall not be set aside unless clearly erroneous. M.R.Civ.P. 52(a); Gay v. Gay's Super Markets, Inc., Me., 343 A.2d 577, 579 (1975). We accept the court's finding as conclusive. Atlantic Acoustical & Insulation Co. v. Moreira, Me., 348 A.2d 263, 266 (1975).


The defendant secondly attacks that part of the court's order which provides her with a life estate to live on the premises jointly with the plaintiff and argues instead that she should have been permitted to retain an absolute, exclusive life estate in the property. The court's conclusion that the defendant's right to live on the premises was not exclusive, but was to run concurrently with the plaintiff's interest in the property, represents a factual finding which is supported by credible evidence. Under the familiar principles enunciated in Leighton, Gay, and Atlantic Acoustical & Insulation Co., supra, this finding will not be disturbed, and the defendant's contention that this aspect of the judgment below is in error is rejected. 4


Finally, the defendant does not deny that on April 12, 1971, she made a binding written contract to convey her real estate to the plaintiff. She reasons, nonetheless, that her contractual obligation to convey the property was discharged because of the alleged failure of the plaintiff to at any time perform his parallel contractual duty of tendering the defendant $1,500, the balance of the purchase price.

The defendant is correct in her legal premise: the April 12 contract contemplated concurred duties of performance, and as a prerequisite to demanding performance by the defendant or putting her in default, it was...

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7 cases
  • Dehahn v. Innes
    • United States
    • Maine Supreme Court
    • April 22, 1976
    ...or implied, shall not be set aside unless clearly erroneous. Gay v. Gay's Super Markets, Inc., 1975, Me., 343 A.2d 577; Cobb v. Cougle, 1976, Me. 351 A.2d 110. Had the parties in their verbal contract dealt solely with the sale and purchase of 'goods' within the meaning of the Uniform Comme......
  • Triple-A Baseball Club Associates v. Northeastern Baseball, Inc.
    • United States
    • U.S. Court of Appeals — First Circuit
    • July 31, 1987
    ... ... The party seeking specific performance must show an attempt to tender its own full performance, see, e.g., Cobb v. Cougle, 351 A.2d 110, 113 (Me.1976), unless such tender would be futile, see A.L. Brown Construction Co., Inc. v. McGuire, 495 A.2d 794, 797-98 ... ...
  • O'Halloran v. Oechslie
    • United States
    • Maine Supreme Court
    • June 6, 1979
    ...that the justice resolved favorably to the appellee all factual issues necessary to sustain his ultimate decision. Cobb v. Cougle, Me., 351 A.2d 110, 111 n.1 (1976); Atlantic Acoustical & Insulation Co. v. Moreira, Me., 348 A.2d 263, 265 (1975). "Our review of the factual findings that we m......
  • Small v. Small
    • United States
    • Maine Supreme Court
    • August 6, 1976
    ...the now familiar assumption that the presiding Justice found all the facts necessary to support his ultimate decision. Cobb v. Cougle, Me., 351 A.2d 110, 111, n. 1 (1976); Boynton v. Adams, Me., 331 A.2d 370, 374-75 ...
  • Request a trial to view additional results

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