First Nat. Bank of St. Johnsbury v. Laperle

Decision Date05 February 1952
Docket NumberNo. 231,231
Citation30 A.L.R.2d 958,117 Vt. 144,86 A.2d 635
CourtVermont Supreme Court
Parties, 30 A.L.R.2d 958 FIRST NAT. BANK OF ST. JOHNSBURY v. LAPERLE.

Arthur L. Graves and Frederick G. Mehlman, St. Johnsbury, for plaintiff.

Witters, Longmoore & Akley, St. Johnsbury, for defendant.

Before SHERBURNE, C. J., JEFFORDS, CLEARY and ADAMS, JJ., and CHASE, supr. J.

JEFFORDS, Justice.

This is a suit in equity for the specific performance of a contract. A decree for the plaintiff was entered and the case is here on exceptions of the defendant.

There is no need to set forth at length the various findings of the chancellor. Several will be discussed in the course of the opinion. For the present it need only be stated that the plaintiff is the executor of the will of Calvin E. Brown who at the time of his death owned a building located at 99 Eastern Ave. in the Village of St. Johnsbury and the personal property contained in the building. The plaintiff advertised the property for sale and the defendant came to the plaintiff and offered to purchase the property for $25,000.

The plaintiff in support of its claim that a contract of sale and purchase of the property was entered into between the parties offered what is designated as plaintiff's exhibit 3 which is in words and figures as follows:

'Received of Mrs. Marie Laperle the sum of Five Hundred Dollars (500.00), as a down payment on a $25,000 cash offer for the Calvin E. Brown store building located at 99 Eastern Avenue, St. Johnsbury, Vermont, and all stock in trade and fixtures located in said store.

'It is understood that down payment will be refunded if offer is not acceptable to the Executor of the estate of Calvin E. Brown, deceased.

'The First National Bank

St. Johnsbury, Vt.

By L. B. Wood

Cashier

'Attest,

Mrs. Marie J. Laperle

St. Johnsbury, Vt.

June 2, 1950.'

The defendant contends that she is entitled to a decree dismissing the plaintiff's bill on the ground that the contract upon which the plaintiff relies is one for the sale of lands and fails to comply with the Statute of Frauds. The section of the statute relied upon is V.S. 47, § 1716 which is as follows: 'An action at law or in equity shall not be brought in the following cases unless the promise, contract or agreement upon which such action is brought or some memorandum or note thereof is in writing, signed by the party to be charged therewith or by some person thereunto by him lawfully authorized'. Subsection V of section 1716 is as follows: 'A contract for the sale of lands, tenements or hereditaments, or of an interest in or concerning them. Authorization to execute such a contract on behalf of another shall be in writing.'

The first ground for the defendant's claim that the written instrument above set forth does not comply with the statutory requirements is that she did not 'sign' the paper within the meaning of the statute for that over her name appears the word 'attest'. She says that 'attest' means to bear witness to and cites many authorities in support of this statement. That this is the meaning ordinarily and usually to be given to this word we do not doubt. However, 'attest' inherently betokens personal acts of authentication of genuineness. Smith v. Curran, 267 Mich. 413, 255 N.W. 276, 94 A.L.R. 766; City Lumber Co. v. Borsuk, 131 Conn. 640, 41 A.2d 775, 158 A.L.R. 677; 7 C.J.S., Attest, p. 691.

The signing required by the statute is a signature to the memorandum placed there with the intention of authenticating the writing. 37 C.J.S., Frauds, Statute of, § 203, pp. 696, 697; 49 Am.Jur. 684. If that is the intention it is generally held that it is not essential that the signature be at the end of the memorandum in any particular place thereon. Annotation 112 A.L.R. at page 940 et seq. It may be in a place provided for the signature of a witness, Id. at page 947; 49 Am.Jur. 685.

That the defendant signed exhibit 3 is not and cannot be questioned as she testified on direct examination that she did. It is clear from all the circumstances that when she signed she did so not merely as a witness but as a party with the intention of authenticating the writing, or, as the chancellor found, that in affixing her signature under the word 'attest' she indicated her agreement and confirmation of the arrangement. This finding amounts to one of intent to authenticate and was not a reforming of the exhibit as claimed by the defendant. The first ground of the defendant's claim in respect to the statute is without merit.

One ground of the defendant's objection to the admission of exhibit 3 and a copy thereof, plaintiff's exhibit 4, was that they contained no promise to sell or purchase but were merely receipts. Cases are cited in support of this claim. They have been examined and found not to be here in point as the writings there in question were merely receipts containing none of the requirements to satisfy the statute. In the present case the exhibits show a cash offer by the defendant to purchase the property therein described. This should be a sufficient answer to this claim of the defendant. Not only does it appear from the exhibits that there was a written offer by the defendant, the party here charged, but the offer was accepted orally, if not in writing, before it was withdrawn by the defendant. Thus this offer was a sufficient memorandum of the contract to satisfy the statute. Kludt v. Connett, 350 Mo. 793, 168 S.W.2d 1068, 145 A.L.R. 1014, Statute of Frauds, 49 Am.Jur. §§ 335 and 389. This ground in respect to the statute is also without merit.

The defendant objected to the admission of oral testimony to the effect that the directors of the plaintiff Bank approved of and accepted the offer of the defendant. The ground of the exception to the admission of this evidence here relied upon is in substance that it violates the rule set forth in Adams v. Janes, 83 Vt. 334 at page 336, 75 A. 799, and in other cases, that a writing must contain such a description of the contract as will obviate the necessity of resorting to parol evidence to supply any term of the contract essential to its validity. None of our cases are cited by either party nor have we found any answering this claim. By the weight of authority, a written offer accepted by parol may constitute a sufficient memorandum of the contract, provided the person making the offer is the party to be charged. Statute of Frauds, 49 Am.Jur. §§ 335 and 389; 37 C.J.S., Frauds, Statute of, § 180, p. 664; Howe v. Watson, 179 Mass. 30, 60 N.E. 415; McDonald v. Fernald, 68 N.H. 171, 38 A. 729; Sanborn v. Flagler, 9 Allen 474; Ullsperger v. Meyer, 217 Ill. 262, 75 N.E. 482, 2 L.R.A.,N.S., 221; Kludt v. Connett, supra.

The purpose of the statute of frauds is to prevent a party from being compelled, by oral and perhaps false testimony, to be held responsible for a contract he claims he never made. If, however, that party has offered in writing to make the very contract with which it is sought to charge him, he cannot justly complain because the acceptance of the other party is oral. Bartlett-Heard Co. v. Harris, 28 Ariz. 497, 238 P. 327.

A study of our cases and others applying the rule set forth in Adams v. Janes, supra [83 Vt. 334, 75 A. 799], discloses that the trouble lay in deficiency of description of the subject matter of the contract in question or in some indefiniteness relating to the subject matter, or the offer or acceptance, or the consideration, etc. All of these matters go to the 'description of the contract'. Such is not the case here. It does not appear to us that the rule that a written offer may be accepted by parol so as to constitute a sufficient memorandum violates the rule of Adams v. Janes, supra, but, in any event, we follow the weight of authority and adopt it as the rule in this jurisdiction and hold that there was no error in admitting the oral testimony in question.

The defendant has briefed an exception to the admission of her testimony as to what she said at the Bank in respect to her offer and agreement to take the property. The ground of the objection was, in effect, that the statute barred this parol evidence. The only statement in the brief in support of the exception is that the contract was clearly one which was within the Statute of Frauds and parol testimony was inadmissible to show the terms thereof.

As we have held that exhibit 3 was properly admitted and as it shows the amount of the offer, error, if any, in the admission of this evidence was harmless. Moreover finding 8, in substance, has for its subject matter this testimony. This finding was not excepted to. Thus the exception to the admission of the testimony is of no avail. Bethel Mills v. Whitcomb, 116 Vt. 357, 363, 76 A.2d 548; Town of Randolph v. Barre, 116 Vt. 557, 559, 80 A.2d 537.

All of the exceptions of the defendant relating to the Statute of Frauds have been considered. All have been held to be without merit and they are overruled.

The defendant claims that a decree for specific performance should not have been granted for the reason that the plaintiff cannot give a clear title to the real estate in question. The basis for this claim is that the property is subject to an easement. This easement was that of a right of passage over a strip of land twelve feet wide between the land in question referred to as the Brown property and the land to its east called the Chowder House property. Approximately six feet of this passage was on the easterly side of the Brown property, and about six feet of it was on the westerly side of the Chowder House property. The right of passage was to be used and held in common by the owner and occupant of these adjoining lots and no building could be erected on the passageway. This easement is hereinafter more particularly set forth.

Joseph Gauthier owned both of these properties from October 12, 1887, to April 17, 1903. On April 17, 1903, Gauthier conveyed the Chowder House property to Edna Clark and on...

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