Davis v. Hodgdon, 69-73

• Decision Date: 03 December 1974
• Docket Number: No. 69-73,69-73
• Citation: 329 A.2d 669,133 Vt. 49
• Court: Vermont Supreme Court
• Parties: Ward DAVIS v. Alonzo E. HODGDON and Edward H. Borga.

Page 669

329 A.2d 669

133 Vt. 49

Ward DAVIS v. Alonzo E. HODGDON and Edward H. Borga.

No. 69-73.

Supreme Court of Vermont.

Dec. 3, 1974.

Thomas P. Politano, Wilmington, for plaintiff.

Timothy J. O'Connor, Jr., Brattleboro, for defendants.

Before BARNEY, C. J., SMITH, KEYSER and DALEY, JJ., and SHANGRAW, C. J. (Ret.), assigned.

SHANGRAW, Chief Justice (Ret.), Assigned.

In this cause the plaintiff initially sought specific performance on the part of the defendants of a certain purchase and sale agreement dated August 1, 1969, whereby defendant Borga agreed to sell and convey certain real estate of approximately ten acres located in West Dover, Vermont, to plaintiff Davis and defendant Hodgdon for $1,500.00 per acre.

The case was tried by court and during the course of the hearings, the plaintiff amended his complaint to one seeking, in the alternative, monetary damages.

Findings of Fact and Conclusions of Law were issued by the court on February 7, 1973. By its Conclusions the court, in part, determined that 'Specific performance is not possible at the present time among the parties to this proceeding.' It therefor adjudged that the defendants, Alonzo E. Hodgdon and Edward H. Borga, were each jointly and severally liable to the plaintiff, Ward Davis, in the amount of $5,000.00, plus interest at the rate of 7.5% from April 12, 1972, together with costs taxed and allowed at $58.25.

Defendant Borga has appealed to this Court for review. Plaintiff Davis urges that the judgment of the lower court should be affirmed.

The findings of the court are not challenged, and, to the extent necessary for this opinion, they are herein summarized. To apply on the agreed purchase price, plaintiff Davis deposited with the defendant-owner, Borga, the sum of $5,000.00. The agreement of August 1, 1969, provided that the balance of the agreed price was to be paid on or before 24 months from August 1, 1969. It was understood between plaintiff Davis and defendant Hodgdon that each would pay half of the purchase price, and the property would be split equally between them. Plaintiff and defendant Hodgdon were equal partners in this particular transaction. They had previously formed the Beacon Realty Corporation and had discussed conveying the property in question to that corporation. This did not materialize.

Plaintiff did not know defendant Borga at the time the Deposit Receipt and Sales Agreement was executed. Plaintiff was then living in New York City and was coming to Vermont on weekends. Defendant Borga was a resident of Toms River, New Jersey, and defendant Hodgdon, a resident of Dover, Vermont, had met him earlier in 1969.

In September, 1971, defendant Hodgdon gave Borga a check dated December 7, 1971, in the amount of $10,000.00, representing the balance of the purchase price due under the purchase agreement. The $10,000.00 check from Hodgdon was returned for insufficient funds.

In January, 1972, Davis learned of the $10,000.00 check given Borga by Hodgdon. Davis then wrote to Borga and expressed his concern and continued interest in the property. He also advised Borga that he had broken contact with Hodgdon and would continue to deal with Borga. Responding, Borga advised Davis that he had 'left all arrangements for settlement on this matter' with his attorney, Dorothy Reeve, in New Jersey, and suggested that Davis get in touch with her. On January 31, 1972, Thomas P. Politano, attorney for Davis, wrote to attorney Reeve to make a further offer on his client's behalf.

On March 14, 1972, Dorothy V. Reeve, attorney for defendant Borga, sent a letter to Hodgdon, Davis and Attorney Politano stating that 'time is now made the essence of deposit receipt and sales agreement made and entered into under date of August 1, 1969, between said Edward H. Borga, as Seller, and Alonzo E. Hodgdon and Ward Davis, as Buyers. . . .'

Attorney Reeve's letter, in substance, stated that Monday, April 3, 1972, at her office in New Jersey was designated as the time and place fixed for complete performance by the seller and purchasers of the Purchase Agreement of August 1, 1969. It was therein stated that the seller will stand ready, willing, and able to deliver the deed called for by the Deposit Receipt and Sales Agreement at which time the purchasers must stand ready, willing and able to deliver the balance of the purchase price of $1,500.00 per acre ($5,000.00 as a deposit having been previously paid by Davis to Borga), together with interest at the rate of 7.5% on such balance from August 1, 1971. The letter also stated that upon failure of the purchasers to then comply with the foregoing the $5,000.00 deposit shall be retained as liquidated and agreed damages, in accordance with paragraph First of the Deposit Receipt and Sales Agreement of August 1, 1969, and that said Receipt and Sales Agreement shall be of no effect and void.

Shortly before the April 3, 1972, deadline set forth in Attorney Reeve's letter, Davis called Borga relative to completing the transaction and was told by Borga that he had already completed the deal with Hodgdon.

In late 1971, Hodgdon entered into negotiations with two other people in an effort to find a way to complete the transaction with Borga. On December 6, 1971, he signed an agreement with James W. Hough and John P. MacLearn, II, both of Guilford, Connecticut, whereby the latter two individuals agreed to contribute the sum of $10,000.00 'to pay the balance due to Edward H. Borga of Dover, Vermont, for premises located in West Dover, Vermont . . . said premises to be taken in the name of Hodgdon.' Hodgdon agreed to convey the premises to a corporation to be formed by the three parties to the agreement for the orderly development of the premises. For this purpose, the Aaron Corporation was organized.

On March 20, 1972, unbeknown to Davis, Hodgdon jumped-the-gun on...