D. W. Cooley v. D. W. Hatch

• Decision Date: 07 May 1924
• Citation: 124 A. 589,97 Vt. 484
• Parties: D. W. COOLEY v. D. W. HATCH ET AL
• Court: Vermont Supreme Court

124 A. 589

97 Vt. 484

D. W. COOLEY v. D. W. HATCH ET AL

Supreme Court of Vermont

May 7, 1924

May Term, 1923.

APPEAL IN CHANCERY. Bill to enforce specific performance of a contract for the sale of real estate. Heard on a special master's original and supplemental reports at the September Term, 1922, Washington County, Fish, Chancellor. Decree for plaintiff awarding specific performance of contract as prayed for. The defendant appealed. The opinion states the case.

Decree affirmed and cause remanded. Let a new time be fixed for the time limited in each of the several paragraphs 2, 3, 4, 7, and 8 of said decree. Let the plaintiff recover his costs in this Court. In case defendant bank does not release its said mortgage on the said premises contracted by Hatch to the plaintiff, then as against the bank its said mortgage security thereon remains unaffected by the provisions of the decree referred to above, and the plaintiff may take such further proceedings in this case as are required to redeem said mortgage, with costs to the plaintiff.

E A. Ayers and Harry C. Shurtleff for the defendants.

Theriault & Hunt and Edward H. Deavitt for the plaintiffs.

Present WATSON, C. J., POWERS, TAYLOR, SLACK, and BUTLER, JJ.

OPINION

WATSON

When this case was here before (91 Vt. 128, 99 A 784) the record showed that prior to the making of the agreement in issue, the plaintiff had an oral contract (hereinafter called the first contract) with defendant Hatch and one Borden who were partners, when it was made, for the erection of a pump and engine in Shipyard Bay, and the conveyance of the lots in question to the plaintiff; that within the pendency of this contract the partnership was dissolved and Hatch refused to permit the plaintiff to carry out the contract which the partner Borden had made for the firm; and that to effect an adjustment of that contract on which the plaintiff was pressing Hatch, the agreement in issue was entered into as a substitute therefor. Nothing more concerning the first contract was shown by the record then before this Court; but the plaintiff contended that there was such a settlement and adjustment of his claim and surrender of his rights under it that now to permit Hatch to set up the Statute of Frauds would make that statute an instrument of perpetrating, rather than preventing, frauds; and that he is in equity estopped from doing so, since the plaintiff cannot be placed in statu quo as respects the first contract. Thereon we said there were not sufficient facts reported touching that contract to enable the Court to determine the soundness of plaintiff's contention in the respect named.

The Court stated that the last named question had been considered, though based on facts outside the bill, because, if the acts of part-performance, there discussed, be deemed such as in equity to warrant a decree of specific performance notwithstanding the statute, the necessary amendment to the bill would be permissible, to prevent a miscarriage of justice. The pro forma decree dismissing the bill was affirmed and cause remanded.

On remand, the bill being amended and further hearing had before the special master, additional facts were found and reported touching the question of time of the agreement in issue, and also touching the first contract, the settlement and adjustment of plaintiff's claim, and surrender of his rights, thereunder. Defendant filed numerous exceptions to the supplemental report, and three exceptions to the original report. The latter exceptions were out of time and are not noticed further. See Hooker, Corser & Mitchell Co. v. Hooker , 89 Vt. 383, 95 A. 649. The case being heard on the facts of record and the exceptions to the supplemental report, a decree was entered by the chancellor that the plaintiff is entitled to specific performance as prayed for, etc.--thus impliedly overruling the exceptions. On defendants' appeal from the decree, the case is now here.

The last named exceptions are all based on the Statute of Frauds, the statute also being one ground of defense claimed on the facts appearing of record; and another ground presented in argument is that of non-performance by plaintiff.

Respecting the first contract and the settlement and adjustment of the same, the supplemental report states that defendant Hatch and Wilbur R. Borden purchased the real estate described in the original report, including the Shipyard Bay and the lots in controversy, taking title thereto under two deeds running to them as tenants in common; that Hatch and Borden thereupon entered into a partnership for the purpose of developing the Shipyard Bay property and selling lots therefrom for camping purposes; that lots there situated were sold by the firm to divers persons, the same being negotiated by Borden as the partner actively engaged in the business; that the acts of Borden in the sale of those lots, and in the original negotiations and agreement with the plaintiff, were within the scope of the partnership business, and therein Borden was acting as partner and for the partnership; that as between the two partners, Borden had particularly in charge the conduct of the partnership real estate enterprise, Hatch being out of the State for the most part during the period covered by the transactions in question; that in 1912 Borden, acting for the partnership, entered into an arrangement with one Campbell, a real estate agent residing in Waterbury, whereby the latter undertook to sell lots at Shipyard Bay on commission; that through this agent the plaintiff became interested in the lots, and during the summer of 1912, the two met Borden at Highgate Springs, at which time and place the first contract was negotiated; which contract was in substance that, in consideration of the sale and conveyance by Borden and Hatch to the plaintiff of certain lots at Shipyard Bay, being the same lots described in the original report, plaintiff undertook and agreed to install at Shipyard Bay, on lands of Borden and Hatch, a water system consisting of a seven horse power gasoline engine, a two-inch centrifugal pump, a wooden tank for the storage of water, and a line of pipe from the pump to the tank, the engine and pump to be installed on the lake shore and the tank on the top of the hill, thereby making a gravity water system for the use of cottages at Shipyard Bay; and the plaintiff was also to move from one of said lots a cottage thereon known as the Cedar Cottage, and upon receipt from Borden and Hatch of a clear warranty deed of said lots he was to pay them one hundred dollars; that it did not appear from the evidence that any definite time when the water system should be installed was agreed upon; but it was tacitly if not expressly understood that it should be done the following spring; but as few of the cottages, prospectively to be served by the system, had been built in 1912, Borden gave plaintiff to understand there was no hurry about the work, and that Borden should notify plaintiff when he was ready for it. At the time this contract was made, Borden had with him a blue print (made an exhibit in the case) which was a survey of a portion of the Borden and Hatch property. Borden and the plaintiff looked over the lots, agreed where the corners should be, and afterwards the parcel was staked out and notches cut in the rocks. This agreement thus entered into was talked over between Borden and Hatch at the time plaintiff made his proposition, and was agreeable to Hatch; and after the agreement was consummated, Borden discussed it again with Hatch who made no objection to it. The master states that so far as the record shows the agreement was satisfactory to Hatch until the dissolution of the partnership between him and Borden. The water system contemplated by the first agreement was entirely different from that involved in the second agreement, the one in issue.

In preparation for the performance of the first contract on his part plaintiff purchased a gasoline engine at a cost of $ 150.00, a pump at a cost of $ 18.00 together with freight charges thereon, a belt for the engine at a cost of between $ 14.00 and $ 15.00, pipe at a cost of about $ 75.00, and kept them in storage at an expense of $ 10.00 awaiting notice to begin the work of installation.

Plaintiff never received any such notice from Borden or the partnership. On two or three occasions plaintiff gave Borden to understand that he was ready to begin work, but Borden assured him that there was no particular hurry about installing the system because the cottages to be served thereby had not been built. Finally, in July, 1913, trouble between Borden and Hatch resulted in a dissolution of the partnership. The two then discussed the matter the firm had pending with the plaintiff, Borden asking Hatch what he was going to do about it, the latter replying that he would look after it. On the dissolution, Borden gave Hatch a warranty deed of his individual one-half interest in the Highgate Springs Point property so-called, dated the 24th day of June, 1913, and later, a quit-claim deed of his interest in the Shipyard Bay land, dated the 19th day of July, following. The latter deed included the land covered by the agreement then existing between the firm and the plaintiff--the first contract.

After the partnership was dissolved plaintiff was informed by Hatch that he refused to carry out the foregoing agreement, stating the sole reason that the lots had been sold too cheap. Plaintiff then told Hatch what expense he had been to in preparing to perform the agreement, and that unless Hatch was willing to do something he, the plaintiff, should take action to collect damages; and thereupon, by way of adjusting and settling the...