Forsyth v. Pendleton

• Decision Date: 02 September 1980
• Docket Number: No. 16695,16695
• Citation: 617 P.2d 358
• Parties: Don FORSYTH, Plaintiff and Respondent, v. R. Brian PENDLETON, Executor of the Estate of Frances J. Pendleton, Deceased, Defendant and Appellant.
• Court: Utah Supreme Court

Page 358

617 P.2d 358

Don FORSYTH, Plaintiff and Respondent, v. R. Brian PENDLETON, Executor of the Estate of Frances J Pendleton, Deceased, Defendant and Appellant.

No. 16695.

Supreme Court of Utah.

Sept. 2, 1980.

Thomas O. Parker, Salt Lake City, for defendant and appellant.

Gary A. Weston of Senior & Senior, Salt Lake City, for plaintiff and respondent.

PER CURIAM:

This is an action for specific performance of a uniform real estate contract between plaintiff-buyer and defendant-seller. Upon trial to the court, an order and judgment was entered which required delivery of the deed to the subject property to plaintiff. From that result, defendant appeals.

Plaintiff entered into a Uniform Real Estate Contract with Frances Pendleton, now deceased and whose estate is defendant herein, for the purchase of certain real property on March 24, 1971, for the sum of $9,000. Plaintiff paid $3,000 down and was to pay the remaining balance at the rate of $75 per month along with 7% interest and real property taxes. This transaction was handled by Mrs. Pendleton's attorney, E. J. Skeen. After making payments for the months of May, June, July and August of 1971, plaintiff's then spouse directed a letter to Mrs. Pendleton explaining that certain difficulties had arisen regarding the property and asked for her grace in waiving payments until spring. Of particular interest are the following provisions of that letter:

We would like to leave things just like they are through the winter to see what spring brings as far as water, etc. If it works out, we plan on building then; and the balance we owe you would be paid in full at that time because we have gotten a loan for the price of the property and our home together in one. Then, you would be out of the problem altogether. However, until that time we would like to leave things just like they are. You keep the money you already have. We won't make any more monthly payments through the winter.

Mrs. Pendleton, upon receipt of plaintiff's letter, forwarded it to Mr. Skeen who in turn wrote to plaintiff requesting that he, Mr. Skeen, be contacted to discuss the issues raised in plaintiff's letter. At this juncture the facts take divergent roads depending upon the parties' position. Suffice it to say that the trial court believed there was sufficient reason to believe that Mr. Skeen was acting as Mrs. Pendleton's agent and as such he advised plaintiff to withhold payment and would talk further with Mrs. Pendleton and get back to plaintiff with instructions. From that point, plaintiff made no further payments on the contract or for taxes. Mrs. Pendleton died on November 25, 1972, and her estate was admitted to probate with Mr. Skeen representing the estate. No claim was filed by plaintiff, nor in spite of defendant's contention, was there any need of such claim being filed. ¹ Subsequently, in October, 1976, and without any intervening communications by either party, there was tendered to Mr. Skeen a check in the sum of $7,581.79 which plaintiff claimed to be payment in full for principal and interest. It apparently is undisputed that said sum did not include taxes. It is equally undisputed that the taxes had been paid by Mrs. Pendleton and subsequently her estate and that tax notices were never sent directly or forwarded to plaintiff, in spite of the fact that his location was apparently readily ascertainable. Mr. Skeen acting on behalf of the estate, refused to accept the plaintiff's tender and this action ensued.

The trial court found that plaintiff had not abandoned the contract, ordered him to pay the taxes, ordered defendant to execute a deed in favor of plaintiff and awarded plaintiff the sum of $1,000 as attorney's fees.

On appeal, defendant raises a procedural question as well as the more substantial issues of agency, abandonment and tender. It is contended, on appeal though never at trial, that Mr. Skeen's testimony should have been excluded pursuant to the "Dead Man's Statute" (§ 78-24-2, U.C.A.1953). However, defendant misperceives the intent of that provision. As this Court ruled in Morrison v. Walker Bank, ² the dead man's statute should be strictly construed and when so construed does not prohibit a party or an interested party from testifying to statements of or transactions with an agent of the decedent. Further, as plaintiff correctly points out, since no objection was made to the subject testimony at the time of trial, any objection must be considered waived. ³

As stated, supra, the trial court found that Mr. Skeen was acting as agent for Mrs. Pendleton when he allegedly advised plaintiff to take a "wait and see" approach to the payment schedule. We find no reason to disturb that finding. ⁴ The record clearly supports the finding in that the plaintiff's dealings in executing the contract were with Mr. Skeen and more importantly, the letter to Mrs. Pendleton was forwarded to Mr. Skeen for response. While these facts may be less than those necessary for the creation of actual agency, they are surely sufficient to support the court's finding of the creation of implied agency. ⁵

As this Court held in the Skerl case, note 5, the general principle of the law of agency is that principals are bound by the acts of their agents which are within the apparent scope of the authority of the agent and a principal will not be permitted to deny such authority against innocent third parties who have relied on that authority. Herein, there is sufficient credible evidence to support the court's finding that the forwarding of the September 18 letter to Mr. Skeen for response and his subsequent response was sufficient to clothe him with the apparent authority to lead plaintiff to believe he was acting as Mrs. Pendleton's agent and the estate cannot be heard to complain as against plaintiff. While we agree with the trial court's finding of agency, we are compelled to note that the agency was not unlimited, that is, Mr. Skeen was acting as agent for Mrs. Pendleton to respond to plaintiff's letter and only within the scope of that letter. Accordingly, we believe that any grace granted by him could not be greater than that actually bestowed upon him by Mrs. Pendleton, of which there is no evidence, nor any greater than that which he apparently had. In light of the contents of the September 28 letter and its repeated and specific reference to renewing the payment schedule when spring came, this Court is unable to agree with plaintiff that Mr. Skeen had unlimited authority to waive payments indefinitely. While the precise date for the recommencement of payments is not discernible, plaintiff had an affirmative obligation to either make payments or in some other fashion, renew its interest in the contract. Equity will not permit a party seeking a limited grace...