Evarts v. Forte
| Decision Date | 07 June 1977 |
| Docket Number | No. 85-76,85-76 |
| Citation | 135 Vt. 306,376 A.2d 766 |
| Court | Vermont Supreme Court |
| Parties | Edna EVARTS v. Gilbert L. FORTE, Jr., Mary L. Forte, and Ralph E. Humiston. |
Carroll, George, Hill & Anderson, Rutland, for plaintiff.
Hanford G. Davis, Brandon, for defendants.
Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.
This case is an appeal from a jury verdict and judgment order entered thereon, returned in favor of the plaintiff-appellee, Edna Evarts, in Rutland Superior Court. Following the jury's verdict, the defendants' motions for a directed verdict and for a new trial were denied. The defendants have filed timely appeal from the final judgment and the order denying their motions.
Before stating the facts giving rise to this cause of action, we note that jury verdicts are not easily to be set aside. It is the function and exclusive province of the jury to determine the true facts in any dispute. Therefore, on appeal, this Court is bound to view the evidence in that light most favorable to the prevailing party. Gilbert v. Churchill, 127 Vt. 457, 462, 252 A.2d 528 (1969).
With the above rule in mind, the pertinent facts are as follows. Sometime in October of 1972, the defendants-appellants, Gilbert and Mary Forte, listed for sale certain property owned by them in the Town of Brandon, Vermont, with Ralph Humiston, a real estate broker and a named defendant in this action.
On October 21, 1972, Humiston brought the appellee, her son Roy Evarts, and one John Perry, to visit the Forte property. The appellee, a resident of New Jersey, had expressed an interest in acquiring some real estate in the area as a retirement home, and, to this end, had made an appointment with Humiston to view some possible sites. The appellee was shown the property, which consisted of some four acres of land and a modular home. It was understood that the appellants were selling the house plus approximately one acre of land. The appellee was given a rough, general description of the realty to be conveyed. At that time, Mrs. Evarts expressed her satisfaction with the property and declared her desire to purchase it for the asking price of $35,000.00. Prior to leaving the premises, the appellee gave Humiston her check for $2,500.00, which he agreed to deposit in an appropriate escrow account as a down payment on the Forte property.
Shortly after her return to New Jersey, the appellee received from Humiston the original and two copies of a completed standard form deposit receipt and sales agreement. This agreement provided that closing would be had on the 20th of June, 1973, and further stated that should the purchaser fail to complete the purchase per the agreement the sellers would be entitled to keep the deposit money as liquidated damages. The property to be conveyed was described as an "Improved lot of one acre (more or less) and presumed to be one acre plus, rather than minus." Although she was somewhat troubled by the vague description of the parcel, the appellee signed the agreement and returned it to Humiston on November 2, 1972.
Subsequent to these events, the appellee received a phone call, followed by a letter, from Mrs. Forte asking her whether she would object to moving the closing to a date sometime in April of 1973. The appellee responded, stating that April would be fine with her.
The appellee next returned to visit the Fortes' property on December 1, 1972. Once again, the appellee was accompanied by Mr. Humiston and John Perry. The boundaries of the lot were again discussed, and the appellee was shown a 50-foot right-of-way on the property reserved by the Fortes' predecessor in title. Mrs. Evarts became quite upset and stated her belief that the property had "shrunk" from her original visit. At trial, Mrs. Evarts' reaction was affirmed by the testimony of John Perry, who stated that the description of the property had changed "immensely" since the October, 1972, view. Accordingly, Mrs. Evarts declared she was no longer interested in acquiring the property and that the deal was off.
Sometime after returning to New Jersey, the appellee received a copy of the deposit receipt and sales agreement signed by the appellants. This document was identical to that signed and returned by the appellee in November except that the date for the closing had been changed to April 2, 1973. Mrs. Evarts testified at trial that this was the first time she had been provided with a copy of the sales agreement containing the altered closing date. Mrs. Evarts never signed this document subsequent to its alteration and return to her.
By her letter of February 16, 1973, the appellee re-affirmed her prior declaration that the sale was terminated and demanded return of her deposit. The appellants responded through their counsel, averring that they were ready and willing to convey the described premises, and that Mrs. Evarts' down payment would be deemed forfeited if she failed to culminate the transaction. On April 9, 1973, no closing having occurred, the appellants demanded and received from Humiston the $2,500.00 deposit.
The appellee brought suit against the Fortes and Humiston seeking return of her down payment. In her amended complaint, the appellee claimed that the appellants' request to change the closing date constituted a counter-off never properly accepted by the appellee. Therefore, appellee alleged, no contract was created and she was entitled to return of her deposit.
Following a brief trial, the cause was submitted to the jury on the following charge:
(I)f from the evidence in this case you find that the offer was revoked by the plaintiff, Edna Evarts because either that the date was changed or that the boundaries were changed or that the boundaries were changed before her offer was even accepted by defendants or if you find that defendants rejected Edna Evarts' offer and then tendered to her a new offer which was never accepted by her, you must find there was no contract.
Obviously, the jury determined that no contract existed, and brought in its verdict for the appellee.
The sole question posed for our review is whether there was a binding contract of sale existing between the appellee and the defendant Forte. It is our conclusion, for reasons to be further set out, that no contract of any legal consequence did exist between the parties. Accordingly, we affirm the order below.
It is, of course, a basic tenet of the law of contracts that in any...
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...that modifications to contracts covered by Statute of Frauds are governed by same requirements as original contract); Evarts v. Forte, 135 Vt. 306, 311, 376 A.2d 766 (1977) (same). Heathcote advances two arguments in opposition to Chittenden's position: first, Heathcote suggests that the ex......
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Haig v. Dartmouth-Hitchcock Med. Ctr.
...agreement have been held to preclude the creation of an enforceable contract ....]” Id. at ¶ 14, 833 A.2d at 1269 (quoting Evarts, 135 Vt. at 310, 376 A.2d at 769). cases where there is not a fully executed contract, Vermont courts consider the following factors in determining whether the p......
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Quenneville v. Buttolph, 02-333.
...to any of the essential terms of an agreement have been held to preclude the creation of an enforceable contract," Evarts v. Forte, 135 Vt. 306, 310, 376 A.2d 766, 769 (1977) (emphasis added), the absence of an agreement on financing precludes the formation of a contract, and thus also make......