Durepo v. May

• Court: Rhode Island Supreme Court
• Writing for the Court: CAPOTOSTO, Justice.
• Citation: Durepo v. May, 73 R.I. 71, 54 A.2d 15, 172 A.L.R. 429 (R.I. 1947)
• Decision Date: 27 June 1947
• Docket Number: No. 1768.,1768.
• Parties: DUREPO et al. v. MAY et al.

54 A.2d 15

DUREPO et al.

v.MAY et al.

No. 1768.

Supreme Court of Rhode Island.

June 27, 1947.

COPYRIGHT MATERIAL OMITTED.

Appeal from Superior Court, Washington County; Patrick P. Curran, Judge.

Suit by Harry Durepo and others against Lewis N. May and others, for specific performance of a contract for the sale of realty. From a decree dismissing the bill, complainants appeal.

Appeal sustained and decree appealed from reversed.

J. Russell Haire, of Newport, for complainants.

John P. Cooney, Jr., of Providence, for respondents May.

Adolph Gorman, of Providence, for respondent Robey L. Gilbert.

CAPOTOSTO, Justice.

This is a bill in equity to compel the specific performance of a contract for the sale of certain land located in the town of South Kingstown, in this state. It is alleged that the contract was completed when the complainants exercised an option to purchase the land, which option was contained in a lease from Charles S. Adams to Alberie E. Albert. Adams died before the option was exercised. The respondents, Harriet L. Adams, Robey L. Gilbert, Susan P. May, and Lewis N. May, are all the parties in interest in the manner and to the extent hereinafter indicated.

After a hearing in the superior court upon bill, answer, replication and proof, a final decree was entered dismissing the bill. Complainants have appealed to this court stating that the decree is against the law and against the evidence.

Charles S. Adams died in August, 1938, intestate, leaving his widow, Harriet L. Adams, a brother, George C. Adams, and two sisters, Susan P. May and Lydia E. A. May. Robey L. Gilbert was duly appointed and qualified as administratrix of the estate. In December, 1938, Lydia conveyed her interest in the premises to Lewis N. May; and in July, 1940, following the death of George, he acquired George's interest from the latter's heirs. When the bill was brought Lewis N. May therefore was possessed of a two-thirds' interest and Susan P. May of a one-third interest in the premises.

On August 29, 1936, Charles S. Adams leased the premises in question to Alberie E. Albert for the period from March 2, 1937 to March 1, 1941. The lease contained the following option: ‘The Lessor hereby grants to said Lessee an option to purchase said demised premises with all buildings and appurtenances thereon for the purchase price of Nine Thousand Five Hundred ($9,500.00) Dollars to be paid as follows: The sum of Three Thousand ($3,000.00) in cash at the time of the exercise of said option, and the sum of Fifteen Hundred ($1,500.00) Dollars with interest at Five (5) Percent per year on the unpaid balance to be paid one year from the time of the exercise of said option, and the sum of Fifteen Hundred ($1,500.00) Dollars with said interest to be paid each year thereafter until the balance is paid in full. Provided: that said Lessee in exercising said option shall give to said Lessor a written notice of his intention to so exercise said option at least one month prior to said exercise.’

On October 30, 1937, Alberie E. Albert, the lessee, executed an instrument entitled ‘Assignment Of Leases', by which he assigned to the complainants four different leases from three different lessors. The lease of the premises in question was one of those leases and is described as follows in that instrument: ‘A certain lease bearing date of August 29, 1936 made by Charles S. Adams to Alberie E. Albert.’ Attached to the instrument of assignment is a document executed by Charles S. Adams, dated November 1, 1937, by which he assented to the assignment and altered the option hereinbefore quoted by reducing the initial payment therein set at $3,000 to $1,500. The remaining terms of the option were not changed. The assignment was recorded May 22, 1940 and the lease on August 5, 1940. We recall here that respondent Lewis N. May acquired Lydia E. A. May's interest in the premises in December, 1938, and that of the heirs of George C. Adams in July, 1940.

On January 3, 1941, the complainants sent identical letters, by registered mail, to the respondents Lewis N. May and Susan P. May, in which, after identifying the lease and the assignment, they gave ‘notice that they intend to exercise the option to purchase said real estate and improvements thereon, as provided in said lease and assignment thereof and are prepared from this date on, to meet the provisions of payment as set forth in said option. Will you kindly advise the undersigned of the date on which the deed may be expected.’ Noncompliance with this notice resulted in the present proceedings.

The trial justice denied and dismissed the bill on the ground that the option was too indefinite to enforce in equity by a decree for specific performance. The respondents Lewis N. May and Susan P. May urge this ground, among others, as their main contention before us. On the other hand, the complainants, as well as the widow and the administratrix of the estate of Charles S. Adams, the lessor, contend that the option is sufficiently definite for specific performance.

Respondents May first contend that the option is void because no time limit is specified therein within which the lessee should exercise the option. They argue that because of such omission the option is too vague and indefinite for specific performance and, further, that it violates the rule against perpetuities. We find no merit in this contention.

In the absence of stipulation, it is ordinarily held that a contract for the sale of land is to be performed within a reasonable time. What is a reasonable time depends upon the circumstances of each case. We see no reason why this rule should not be applied in the case of an option to sell land. Furthermore, the option in the instant cause was incorporated in a lease for the term of four years. Since the parties fixed no time for the exercise of the option, it is reasonable to infer that they intended that the option could be exercised at any time within the term of the lease, which, in the circumstances, they apparently deemed a reasonable time. The evidence shows that notice of the exercise of the option was duly given within that time.

Respondents May next contend that the option is unenforceable by reason of uncertainty, in that it fails to specify when the deed was to be delivered and how the purchase money was to be secured, if at all. The trial justice, disregarding the evidence and confining himself strictly to the language of the option, adopted this view and dismissed the bill on those grounds. In our judgment this was error.

The omissions just mentioned, upon which the respondents May strongly rely, are details concerning the passing of title to the land in question and do not refer to the necessary particulars that ordinarily must appear in a memorandum to meet the requirements of our statute of frauds, General Laws 1923, chapter 333, sec. 6, now G.L. 1938, chap. 481, § 1, which in part is as follows: ‘§ 1. No action shall be brought:-First. Whereby to charge any person upon any contract for the sale of lands * * * Unless the promise or agreement upon which such action shall be brought, or some note or memorandum thereof, shall be in writing, and signed by the party to be charged therewith * * *.’

The statute does not require that a contract for the sale of land or an agreement giving an option for the purchase thereof must be in writing. Even though such a contract or agreement be oral, it will be enforced if there is a sufficient memorandum in writing. Preble v. Higgins, 43 R. I. 10, 109 A. 707. A memorandum to comply with the statute of frauds need contain only the substance of the contract or agreement and not a statement of all particulars. Ives v. Hazard, 4 R.I. 14, 67 Am.Dec. 500. The rule is the same in the case of an option. In Sholovitz v. Noorigian, 42 R.I. 282, at page 285, 107 A. 94, at page 95, this court, speaking generally with reference to the adequacy of a memorandum, said: ‘The note or memorandum sufficient to prevent the operation of the statute upon a contract for the sale of land need not have the formal precision usually found in a written contract or agreement. Such note or memorandum meets the requirements of the statute if it sets out who are the seller and the buyer, their respective intention to sell and to purchase, such a description of the subject-matter of the sale as may be applied to a particular piece of land, the purchase price, and the terms of payment if the sale is not for cash; and further such note or memorandum must be signed by the party to be charged in the action or by his agent lawfully authorized.’ All these elements are present in the option under consideration.

If, in the instant cause, the sale were for cash and no time for performance was fixed in the option, there can be no doubt that the parties would be held to have intended that the title should be passed in the ordinary way, that is, that the delivery of the deed and the payment of the purchase price were to be concurrent acts. Bright v. James, 35 R.I. 128, 85 A. 545, Ann.Cas. 1915B, 1099; Bergeron v. Redfern, R.I., 108 A. 650. Does the fact that here the purchase price was to be paid by a down payment and installments make a difference? In our judgment the omissions under consideration are matters of detail, which, if not inferable from the language of the option itself, could be supplied by oral evidence.

Where the parties fail to stipulate as to such matters, it is reasonable to infer that they intended to follow the ordinary practice in the sale of real property under similar circumstances, namely, that upon delivery of the deed the seller would give a mortgage, with terms in accordance with those specified in the option, for the balance of the purchase price. Were it necessary to supply the above-mentioned details, there is, in the record before us, uncontradicted evidence by complainant Durepo, who knew Adams and whose land he occupied under the lease with his...