Flagg v. Davis

• Decision Date: 17 September 1951
• Parties: FLAGG v. DAVIS et al.
• Court: Maine Supreme Court

Page 319

83 A.2d 319

147 Me. 71

FLAGG v. DAVIS et al.

Supreme Judicial Court of Maine.

Sept. 17, 1951.

John A. Platz, Lewiston, for plaintiff.

Berman & Berman, Lewiston, for defendants.

Before MURCHIE, C. J., and THAXTER, FELLOWS, MERRILL, NULTY, and WILLIAMSON, JJ.

NULTY, Justice.

This proceeding comes before us on defendants' appeal from a final decree of the Supreme Judicial Court in Equity for the County of Androscoggin sustaining the bill in equity and ordering specific performance by the defendants. The litigation was developed by a bill in equity which prayed for specific performance for what is alleged to be a contract to convey real estate. The written document, specific performance of which is sought by the plaintiff from the defendants, reads as follows (omitting a portion of the description of the real estate):

'Mamorandum of agreement by and between Agnes T. Davis, Benj. L. Davis, Melvin J. Davis, Elizabeth J. Davis, Mildred T. Finn, F. Wallace Finn, Ethel L. Davis, Emma D. Harris, Agnes I. Davis and Charles H. Harris, of Webster, County of Androscoggin, State of Maine and Guy E. Flagg of Auburn, Maine, same County and State, and, or his assigns.

'The above named heirs of Lee W. Davis agree to sell to Guy E. Flagg or his assigns all of the land located in Lewiston on Pleasant Street and Mitchell Road. . . .

'Upon tender to him of a Warranty Deed of said premises free and clear of all incumbrances, the said Guy E. Flagg agrees to pay said Lee W. Davis heirs, the sum of Six Thousand ($6000.00) on or before October 1, 1949.

'Dated at Lewiston this 3rd day of September 1949.

'Signed

Agnes T. Davis Exec

Benjamin L. Davis

Melvin J. Davis

Agnes I. Davis

Elizabeth J. Davis

Mildred T. Finn

F. Wallace Finn

Ethel L. Davis

Emma D. Harris

Charles H. Harris

Guy E. Flagg

'We extend this option for 10 days

Melvin J. Davis.'

It came before the court below on bill, answer, replication and proofs, the answer being a complete denial of the allegations of the bill. From the factual findings of the court below and from the decree thereon it appears that the real estate in question was owned by the defendants and embraced 44 acres of land, more or less, in Lewiston, Androscoggin County, Maine. The sitting justice found from the testimony and the written contract that the plaintiff offered to pay the defendants $6,000 for the land upon tender of a deed to the plaintiff or his assigns on or before October 1, 1949, which contract the sitting justice finds by mutual agreement was extended for ten days by an endorsement made by the active agent of the defendants on the original contract set forth herein, and that defendants never, at any time, tendered to the plaintiff or his representative a fully executed warranty deed of the premises which the written contract required, although prior to the expiration of the extended period of time called for by the written contract, defendants informed Frank W. Linnell, an attorney who the plaintiff claimed to the defendants was to act as the conduit through whom the transaction was to be completed, that they were not going to tender a deed, and, in the words of the witness, '* * * he was not going through with it.' The sitting justice also found as a fact that the plaintiff expected to find a customer who would provide the funds to carry out the transaction and that the plaintiff did not have funds of his own to fulfill the contract terms. It is conclusively shown that the defendants knew and understood that by the terms of the written contract they were obliged to offer plaintiff a deed complying with the terms of the written contract. After the verbal repudiation to Linnell by the defendants' active agent and prior to the expiration of the final date for the tender of the deed the defendants undertook negotiations with third parties for the sale of the real estate described in the written contract dated September 3, 1949, as extended. After the expiration of the final date indicated for the tender of the deed, Linnell at the request of the plaintiff, called the active agent for the defendants and notified him that the purchase price called for by the written contract was available and that the plaintiff was ready to complete the transaction. The agent for the defendants informed Linnell that the property had been sold, but later the same day again offered the property to the plaintiff for an increased price. It was developed in testimony and found by the sitting justice that a third party, through the activities of the plaintiff subsequent to the time limitation of the contract, had agreed to buy the property and had deposited the full purchase price, which was in excess of the contract price, with Linnell who, as before stated, was to act as conduit. The defendants, through their attorney, refused to give a deed and shortly thereafterwards the bill in equity for specific performance was instituted.

Under our law an equity appeal is heard anew on the record. See Cassidy v. Murray, 144 Me. ----, 74 A.2d 230, 231; Sears, Roebuck & Co. v. City of Portland, 144 Me. ----, 68 A.2d 12, 16. We said in Cassidy v. Murray, supra, in speaking of equity appeals:

'(2) Revised Statutes 1944, Chap. 95, Sec. 21, in part directs with respect to equity appeals and the duty of the Law Court therein: 'and shall on such appeal, affirm, reverse, or modify the decree of the court below, or remand the cause for further proceedings, as it deems proper.' Our court has held that findings of fact by the justice below will be conclusive unless clearly wrong and the burden is on the appellant to prove it. Young v. Witham, 75 Me. 536; Paul v. Frye, 80 Me. 26, 12 A. 544. Our court also said in Leighton v. Leighton, 91 Me. 593, 603, 40 A. 671, 675, speaking of findings of fact: 'Such is the general rule, but it does not necessarily require proof beyond a reasonable doubt. And sometimes circumstances and conditions are to be considered which prevent the rule applying so literally as it otherwise would.'

'In Sears, Roebuck & Co. v. City of Portland, supra, we said (speaking of findings of fact): 'This rule does not mean that the findings of fact of the Justice below will not be reversed on appeal unless such findings constitute error in law. They may be disregarded on an appeal when clearly wrong.''

There was a very lengthy hearing in this matter as shown by the transcript of the record, which approximates two hundred eighty typewritten pages. Sitting as an appellate court, we are very conscious of the principle which requires no further citation of authorities that the decision of any fact by the court below should not be overruled by the appellate court unless the appellate court is clearly convinced of its incorrectness, the burden being on the appealing party to prove the error, one of the main reasons for support of that principle being that one who...