Fisher v. Long

• Decision Date: 22 June 1943
• Parties: FISHER et al. v. LONG.
• Court: Kentucky Court of Appeals

172 S.W.2d 545

294 Ky. 751

FISHER et al. v. LONG.

Court of Appeals of Kentucky

June 22, 1943

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Third Division; William H. Field, Judge.

Action by Billie and Thomas C. Fisher against Wilton C. Long to recover damages for breach of a contract to exchange realty. From a judgment of dismissal entered upon an order sustaining defendant's demurrer to the petition, plaintiffs appeal.

Judgment reversed and cause remanded for proceedings consistent with opinion.

Leon Seidman, of Louisville, for appellants.

Watson Clay, of Louisville, for appellee.

MORRIS COMMISSIONER.

Appellants and appellee, on October 9, 1939, entered into a written agreement in the form of a letter proposing exchange of real estate in Jefferson County. The document insofar as pertinent reads:

"I will take for my property at Anchorage, Ky. except 2-18/100 acres or less, the property located at the northeast corner of Meadow Road and Taylorsville Road, and $4000. Both properties are now subject to mortgages and the differences in the mortgages, and any other liens are to be adjusted in cash.

"It is further understood that the mortgage on my property is with a personal friend, which mortgage cannot be assumed. I will include the refrigeration in the house, the gas stove installation, screens, shades, etc., * * *. Each party * * * to give a general warranty and subject only to existing restrictions and building ordinances. Possession of the respective properties is to be given not sooner than 30 days after date of deed.

"Thomas Fisher."

"Unless accepted by twelve o'clock noon, Monday October 9, 1939, this proposition is void.

"Rejected October 7, 1939. However, I will give $3,000 cash difference, not including stove and refrigeration. This offer expires October 14, 1939.

"W. R. Long.

"Accepted October 9, 1939.

"Thos. C. Fisher

"Billie H. Fisher."

Shortly thereafter Fisher and wife tendered a duly executed deed to Long, conveying to him the Anchorage property. The consideration for the transfer was the conveyance of lot No. 224, Broadmeade subdivision, and $9,015.77, the total amount of the mortgage, interest and liens upon the Fisher property as of date of deed, and $3,309.58. Appellee refused to accept the deed, and in February 1940 Fisher and wife filed petition, in which they set up the contract and Long's refusal to accept the deed, to execute a deed to his property, and otherwise comply.

Plaintiff alleged that the reasonable value of Long's property was $12,000, and of their property, together with the cash which W. R. Long "agreed to convey and pay to plaintiffs, was $15,000, or $2,000 more than the reasonable market value of their property." Plaintiffs elected to treat the contract as breached, and that thereby plaintiffs were damaged in the sum of $2,000. Long demurred to the petition.

By an amendment later filed, plaintiffs alleged that it was agreed that liens affecting each piece of property would be ascertained from parties holding said liens on the date of closing, and that any difference between the amounts would be adjusted and paid by the party entitled thereto in cash. They alleged that on date of tender of deed the total of the liens affecting the properties as ascertained was $9,015.77 as against plaintiffs' property, and $9,325.35 against defendant's, hence there was due under the agreement $309.58, which defendant had promised to pay at the time of plaintiff's acceptance of the counter offer. The court first overruled demurrer, but later set aside the order and sustained it as to the petition as amended; plaintiffs declining to plead further the petition was dismissed.

There is the record memorandum opinion setting out the grounds upon which the court sustained the demurrer. After analysis of the contract the court construed it to mean that: (1) Long by his counter-proposition agreed to pay $3,000 cash difference rather than $4,000 as proposed by Fisher, following Long's rejection. (2) That the difference between the amounts of the mortgages and other liens would be settled in cash. (3) Long would pay off the mortgage on plaintiff's property. We agree that this is a reasonable construction, and not difficult of comprehension by either party. However, the court quoted that portion of the contract which pointed out that both properties were known by both parties to be under a mortgage, and specifically to the phrase relating to the adjustment of lien differences. The court remarked that when the case was first out on demurrer to the petition he was concerned mainly with the Statute of Frauds, but was "then and now convinced that the contract satisfied the statute."

As we read the briefs of contending parties, there is not presented any argument that the contract comes within the inhibitions of the statute. After expressing the belief, supra, the court asks: "But is the contract such as may be enforced or sued on for breach?" and we quote the answering conclusion:

"The writing evidences an agreement in principle but reserves something for future ascertainment. The agreement as written is incomplete, although satisfying the Statute of Frauds. To be complete the difference (2 supra) between the amounts of the respective mortgages and other liens would have to be adjusted and accepted by both parties. The thought applies also to the amount of the mortgage on plaintiffs' property, which Long was to pay off. It is not enough that the petition states that $309.58 is 'the difference between the liens affecting the property of plaintiff

...