Cultra v. Douglas

• Decision Date: 07 July 1969
• Citation: 444 S.W.2d 575,60 Tenn.App. 116
• Parties: Robert B. CULTRA, Appellee-Complainant, v. Dorothy DOUGLAS, Appellant-Defendant.
• Court: Tennessee Court of Appeals

Page 575

444 S.W.2d 575

60 Tenn.App. 116

Robert B. CULTRA, Appellee-Complainant, v. Dorothy DOUGLAS, Appellant-Defendant.

Court of Appeals of Tennessee, Western Section.

July 7, 1969 Certiorari Denied by Supreme Court Sept. 2, 1969.

Sam C. Nailling, Union City, for appellant.

Randall P. Burcham, Miles & Miles, C. W. Miles, III, W. M. Miles, Union City, for appellee.

MATHERNE, Judge.

This is a suit in Chancery seeking specific performance of a written contract to sell real property. The Chancellor held for the complainant below and decreed specific performance. The defendant below, Dorothy Douglas, has perfected her appeal to this Court.

The defendant on appeal lists in this Court ten (10) Assignments of Error wherein she presents one overriding and determinative issue, namely--under the facts and circumstances of this case, is the complainant entitled to have a court of equity decree specific performance of the contract?

It is important to here note how this contract came into existence. The complainant, Robert B. Cultra, was in the process of buying up some real estate in Obion County, Tennessee in the vicinity of where a new interstate highway was to be constructed. Complainant contacted Mr. R. P. Burcham, Attorney of Union City, Tennessee, and drove him out to the property in question to find out if Mr. Burcham knew who owned it. Mr. Burcham on that occasion told complainant that the defendant, Dorothy Douglas, owned the property, and that he represented the defendant. Whereupon, a fair interpretation of the record shows that complainant, Cultra, employed Mr. Burcham to obtain the property for him from the defendant for $10,000 if possible and to pay $12,000 if necessary. Complainant, Cultra, testified 'I just simply hired an attorney to secure a legal option to a piece of property.' Thereafter, Mr. Burcham contacted the defendant to come by his office the first time she was in Union City, there was something he wanted to talk to her about.

The defendant, on July 15, 1967, went to Mr. Burcham's office and discussed with him some matters pertaining to business he was handling as her attorney. On this date Mr. Burcham told the defendant that a party wanted to buy her property, but he could not divulge the name of the purchaser. He told the defendant he was authorized to offer her $10,000 for the property, the defendant replied that she would not sell for that amount. Mr. Burcham then stated to the defendant that he was authorized to offer her $12,000, whereupon, defendant stated in substance that she thought that was nearer the right price, and according to Mr. Burcham she said, 'I'll take it, what do you think of that?' Mr. Burcham stated that he replied 'I think you did right. I think that's fair.' Thereupon, Mr. Burcham presented to the defendant the contract in question, which Mr. Burcham had already drawn up with the date, consideration for the property and the down payment left in blank. The blanks were filled in and the contract was executed by the defendant and Mr. Burcham, wherein the defendant agreed to sell and 'R. P. Burcham, Attorney at Law,' agreed to buy the property in question for the sum of $12,000 'of which $10.00 dollars has been paid upon the execution and delivery of this contract * * *.'

Mr. Burcham testified that he advised the defendant that the contract would have to be entered into between him and the defendant due to the fact that he could not divulge the name of the purchaser. The defendant testified that she thought she was signing an option to sell and that she understood from Mr. Burcham that she did not have to sell, but that under the instrument she could sell if she wanted to; and that she would not have signed such a contract with anyone under any circumstances other than Mr. Burcham as she placed absolute confidence in him.

Late that summer Mr. Burcham told the defendant it was time for her to sign the deed to the property. The defendant told him she did not intend to sell and did not understand she had to sell. Thereupon, Mr. Burcham took the complainant, Robert B. Cultra, to the home of the defendant for the two of them to talk. This was the first knowledge the defendant had that Mr. Cultra was the other person involved. The defendant told both Mr. Cultra and Mr. Burcham on that occasion that she would not sell the land and that she was not obligated to do so. Mr. Cultra went to the defendant's home on another occasion and some conversation was had as to a possible settlement of the matter, and he was again told by defendant that she would not sell.

Thereafter on October 30, 1967, Mr. Burcham assigned the contract in question by written instrument to the complainant for the stated consideration of $1.00. On November 13, 1967 the complainant, Robert B. Cultra, filed this suit against the defendant for specific performance of the contract to sell. The cause was heard on oral testimony before the Chancellor without a jury, and the Chancellor held for the complainant. The Finding of the Chancellor is as follows:

'Gentlemen:

I think that there has been a little mistake about this thing. This is not an option that you've got there. Both parties are bound. In other words, Mrs. Douglas was bound to sell to Mr. Burcham, and Mr. Burcham was bound, under this contract, as I see it, to purchase it. In other words, neither one of them had an option of backing out, according to the terms of the contract. It didn't take any consideration, in other words, the promise of each in exchange for the promise of the other one was sufficient consideration, as I see it, for the execution of the contract. I will admit to you that I am somewhat disturbed about the question of champerty that's come up, but I can't believe that there is a defense to this case. Now, I will grant you that Mr. Nailling is perfectly right, it can be raised at any time, and if it is justified, or if it is a defense in this particular case, and under these particular facts, why a higher Court will have to hold that. This Court has authority, where one party obtains an advantage by a breach of confidence, or a practice of fraud, or misleads or deceives another party, for relief against it, but when the contract is binding on the parties, it's binding on the Court, as I see it, and for that reason, I will have to hold that they are entitled to specific performance.'

On this appeal the parties are entitled to a review of the law and the facts de novo upon the record from the Chancery Court, accompanied by a presumption of the correctness of the decree below, unless the preponderance of the evidence is otherwise. T.C.A. § 27--303. If the evidence preponderates against the finding of the Chancellor it is the duty of the Court of Appeals to enter such decree as the law and the evidence warrant. Loftis v. Stuyvesant Ins. Co. (1964) 54 Tenn.App. 371, 390 S.W.2d 722.

A litigant is not entitled to specific performance as a matter of right. Leathers v. Deloach (1918) 140 Tenn. 259, 204 S.W. 633. The right to specific performance in any particular case is governed by the ordinary principles of equity; and the granting or refusing of a decree of specific performance lies within the sound discretion of the Chancellor under the facts appearing in the particular case. New River Lumber Co. v. Tenn. Railroad Co. (1916) 136 Tenn. 661, 191 S.W. 334.

In T. J. Moss Tie Co. v. Hill (1951) 191 Tenn. 582, 235 S.W.2d 587, the Court speaking through Mr. Justice, now Chief Justice Burnett, in considering the principles to be applied to a suit seeking specific performance, quoted with approval from 49 Am.Jur. Specific Performance, Sec. 58, pp. 72, 73, as follows:

'Equity, in decreeing specific performance, requires not only that the contract be just and equitable in its provisions, but that the consequences of specific performance likewise be equitable and just. One of the general rules formulated and followed is that this equitable relief will not be granted if, under the circumstances of the case, the result of the specific enforcement of the contract would be harsh, inequitable, oppressive, or result in an unconscionable advantage to the plaintiff, even though the complainant has no intention of taking an unfair advantage, and even though the contract may be valid and enforceable at law. In every case where a specific performance is asked, the question must be whether the exercise of the power of the court is demanded to subserve the ends of justice, and unless the court is satisfied that it is right in every respect, it will refuse to interfere.'

To determine whether the facts of this case present a contract which is subject to specific performance, we are first confronted with the confidential relationship of attorney and client which existed between Mr. Burcham and the defendant, Dorothy Douglas, and whether this relationship was breached to the detriment of the defendant.

In the case of Turner v. Leathers (1950) 191 Tenn. 292, 232 S.W.2d 269, our Supreme Court stated the rule of confidential relationship as follows:

"Whenever two persons stand in such a relation that, while it continues, confidence is necessarily reposed by one, and the influence which naturally grows out of that confidence is possessed by the other, and this confidence is abused, or the influence is exerted to obtain an advantage at the expense of the confiding party, the person so availing himself of his position will not be permitted to retain the advantage, although the transaction could not have been impeached if no confidential relation had existed." Pomeroy's Equity Jurisprudence, 5th Ed. Vol. 3, § 956, p. 792.

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