Colstad v. Levine

• Decision Date: 10 December 1954
• Docket Number: No. 36309,36309
• Citation: 67 N.W.2d 648,243 Minn. 279
• Parties: Roland COLSTAD et al., Respondents, v. Henry LEVINE, Appellant, National Toddle House Corporation, Defendant.
• Court: Minnesota Supreme Court

Page 648

67 N.W.2d 648

243 Minn. 279

Roland COLSTAD et al., Respondents, v. Henry LEVINE, Appellant, National Toddle House Corporation, Defendant.

No. 36309.

Supreme Court of Minnesota.

Dec. 10, 1954.

Syllabus by the Court.

1. In passing upon the adequacy of a property description, this court will not apply the statute of frauds (M.S.A. § 513.05) in a rigid manner and hold an attempted conveyance void when the description used in the memorandum agreement, by itself or as amplified by other instruments or papers with which the memorandum is expressly or impliedly connected, provides an adequate guide to locate and identify the property in the light of the surrounding circumstances and in the light of facts of which a court can take judicial notice.

2. Although parol evidence is inadmissible to supply, modify, or aid a description which is void on its face, it is admissible to identify the land and to apply such description thereto, and for this purpose parol evidence may be received showing the fact of the execution, delivery, and receipt of the writing or writings, and also the time, place, situation of the property and the parties, and other accompanying circumstances.

3. A description of urban property only by its street number address in an agreement to convey is sufficient to satisfy the statute of frauds when the area of such property may be determined by considering the situation of the parties and the circumstances accompanying the transaction.

4. Rule 15.01 of Rules of Civil Procedure vests wide discretionary powers in the trial court for the liberal granting of an amendment to the pleadings when justice in the particular case so requires, even though the proposed amendment may change the legal theory of the action.

5. Determination of the real party in interest in an action is ordinarily a question of fact.

6. When a jury delivers a sealed verdict at a time when the court is not in session, and the jurors then separate until they again appear before the court for the opening of their verdict, and, upon then being polled, one of the jurors dissents to the verdict, it is not error to send the jury out for further deliberation when there is no evidence of improper conduct or improper influence with respect to any juror during the period of separation.

7. The relation between an attorney and his client is a fiduciary one of the highest trust and confidence and, As long as the relationship or the influence thereof exists, requires the attorney to observe the utmost good faith and candor and not to allow his private interest to conflict with those of his client.

8. Since the duty of fidelity and good faith arising out of the confidential relation of attorney and client is founded, not on the professional relation per se, but on the influence which the relation creates, such duty does not always cease immediately upon the termination of the relation but continues as long as the influence therefrom exists.

Levine & Levine, Harry H. Peterson, Minneapolis, for appellant.

Thomson & Williams, Minneapolis, for respondents.

MATSON, Justice.

In an action for specific performance, defendant Levine appeals from an order denying his motion for a new trial. ¹

Plaintiffs, partners in the manufacture of counter tops and tables, seeking to obtain a new business location, purchased from the defendant an old residential property described merely by its street address in a memorandum agreement which, insofar as here pertinent, provides:

'Sept. 22, 1948

'Received of * * * (plaintiffs) Five Hundred ($500.00) Dollars as a guarantee of good faith accompanying offer of $12,500, on terms as follows: $2000.00 on or before Sept. 25, 1948 and the balance of $10,000.00 in installments of $100.00 a month or more * * * for the purchase of the house at 807 Washington Ave. S.E. Mnpls. Minn.

'I hereby accept this offer

'(/s/) Henry Levine

'Seller' (Italics supplied.)

The premises constituted the westerly part of a larger tract owned by the defendant, namely, The east 84 feet of the north 48 feet of lot 10, block 6, Baker's Addition to St. Anthony. The basic dispute herein concerns the extent of the property purchased by the plaintiffs. Defendant claims that he sold the plaintiffs only the west 44 feet of the larger tract; whereas plaintiffs claim that they purchased the west 58.45 feet so as to include the house, porch, and the sidewalk adjacent to the house on the east side and in addition an eight-foot driveway east of the sidewalk. This question of fact as to whether plaintiffs had bought only the west 44 feet or the west 58.45 feet of defendant's 84-foot frontage, was upon special interrogatories submitted to the jury which found for the plaintiffs, and its findings were adopted by the court. The trial court granted specific performance and ordered defendant to convey the west 58.45 feet to plaintiffs by warranty deed.

This appeal is from the order of the trial court denying defendant's motion for amended findings or a new trial.

Aside from the basic question of whether under the circumstances the description of the property by street number sufficiently identified the property to warrant specific performance, we have issues as to: (1) Laches, (2) whether the court abused its discretion in permitting plaintiffs to amend their pleadings, (3) whether the plaintiffs are the real parties in interest, (4) whether the court and the jury were both guilty of prejudicial misconduct, and (5) whether the trial court erred in its charge by permitting the jury to find that the fiduciary relationship of attorney and client existed between the parties.

1--2. Was the property sufficiently described by a street address to warrant specific performance? In passing upon the adequacy of a property description, this court will not apply the statute of frauds, M.S.A. § 513.05, in a rigid manner and hold an attempted conveyance void when the description used in the memorandum agreement, by itself or as amplified by other instruments or papers with which the memorandum is expressly or impliedly connected, ² provides an adequate guide to locate and identify the property in the light of the surrounding circumstances and in the light of facts of which a court can take judicial notice. ³ Since there was no writing other than the memorandum above quoted, the adequacy of the description must be determined in the light of the surrounding circumstances. Although parol evidence is inadmissible to supply, modify, or aid a description which is void on its face, it is admissible to identify the land and to apply such description thereto, and for this purpose parol evidence may be received showing the fact of the execution, delivery, and receipt of the writing or writings, and also the time, place, situation of the property and the parties, and other accompanying circumstances. ⁴

3. Taking as we must the view of the evidence most favorable to the court's findings, we have the following factual circumstances which were proper to consider in applying the street number description to the property to ascertain its extent: While the plaintiffs were contemplating buying the property, they met the defendant on the premises and there informed him that they needed a driveway at least eight feet wide to accommodate the large trucks used in making deliveries to and from their business establishment. In the presence of the defendant, one of the plaintiffs measured off a distance of eight feet eastward of the sidewalk adjacent to the porch on the east side of the house. The defendant assured the plaintiffs that such driveway strip would be included. Immediately thereafter the memorandum agreement was executed and plaintiffs made the $500 payment which was followed in a few days by two additional payments, one of $2,000 and one of $1,000. The plaintiffs took immediate possession of the premises, and in their business operations the driveway area was used as a truck entrance. It is significant that, if only the west 44 feet had been sold to plaintiffs, as defendant contends, the easterly line would have deprived plaintiffs not only of the driveway but also of the entrance sidewalk and a part of the porch. We need not recite certain evidence contrary to the verdict, since the evidentiary conflict has been resolved by the trier of fact.

The situation of the parties and the circumstances which accompanied the transaction, as above given, were sufficient to apply the street number description to the property and thereby to ascertain that it embraced the westerly 58.45 feet. It is recognized in this jurisdiction and elsewhere that a description of urban property only by its street number address in an agreement to convey is sufficient to satisfy the statute of frauds when the area of such property may be determined by considering the situation of the parties and the circumstances accompanying the transaction. ⁵

The contention that plaintiffs by reason of laches are barred from receiving specific performance is without merit. The evidence shows that plaintiffs, within two or three days after the memorandum agreement was signed, demanded a contract for deed and frequently thereafter repeated such demand. Each time plaintiffs were assured by the defendant that they would receive a deed or a contract for deed as soon as an unidentified estate was settled. When the plaintiff's discovered that a lessee of the defendant ⁶ was claiming a part of the property which they had purchased, they immediately commenced this action. This evidence precludes a finding of laches and negates any conclusion that the plaintiffs waived or abandoned the sale so as to forfeit their right to specific performance. See, McDermid v. McGregor, 21 Minn. 111.

4. In their original complaint plaintiffs claimed only a permanent easement to the eight-foot driveway. The day before the trial, the court, over the objections of the defendant, permitted plaintiffs to amend their complaint by...