Frost v. Barrett

• Decision Date: 10 October 1968
• Citation: 246 A.2d 198
• Parties: Margot Fairchild FROST v. Robert J. BARRETT, Jr. and Mrs. K.R. Barrett.
• Court: Maine Supreme Court

Page 198

246 A.2d 198

Margot Fairchild FROST v. Robert J. BARRETT, Jr. and Mrs. K.R. Barrett.

Supreme Judicial Court of Maine.

Oct. 10, 1968.

William Fenton, Bar Harbor, for plaintiff.

Edward Stern, Bangor, Ralph C. Masterman, Bar Harbor, for defendant.

Before WILLIAMSON, C.J., and WEBBER, TAPLEY, MARDEN, DUFRESNE, WEATHERBEE, JJ.

WEATHERBEE, Justice.

On appeal.

This matter originated in a complaint brought by the plaintiff in the Superior Court in Hancock County seeking to recover from the defendants the value of the use and occupancy of a dwelling and lot in Bar Harbor which the defendants occupied during the summer of 1959. After a pre-trial conference the Presiding Justice issued a pre-trial order in which he stated that as no genuine issue existed as to any material fact, he ordered summary judgment for the defendants as a matter of law. The order recited, in part:

"It is agreed the following are facts:

"On or about July 1, 1959 the defendants, husband and wife, orally agreed to purchase land and buildings in Bar Harbor, Maine from the plaintiff. Defendants were orally granted permission to occupy the premises pending passing of title. The defendants did in fact occupy the premises from July 4, 1959 to September 15, 1959. On July 16, 1959 the parties did enter into a written purchase and sale agreement intended to formalize the oral agreement above described. This agreement required that the plaintiff furnish these defendants a good and sufficient deed of marketable title to the premises within sixty (60) days of July 16, 1959. The written contract also contained this provision:

'In the event the seller cannot give good and marketable title on the date of the expiration of this contract it is agreed by the parties hereto that Fred C. Lynam & Co. shall, in that event, return to the purchasers the sum of one thousand five hundred dollars ($1500.00) paid upon the execution thereof, without interest and the contract shall be thereby terminated, and all parties released from any obligation hereunder if the purchaser so elects.'

"The written agreement of July 16, 1959 described the purchase price as fifteen thousand dollars ($15,000.00) fifteen hundred dollars ($1500.00) of which was deposited in escrow with Fred C. Lynam Co., the balance to be paid upon the passing of title. The plaintiff was unable to fulfill her obligation to convey marketable title to the premises because of a flaw in her title. On September 26, 1959 she was notified by defendants' attorney that the contract was being dis-affirmed by reason of plaintiff's inability to perform. The defendants never occupied the premises after the disaffirmance, their occupancy having terminated on September 15, 1959.

"The plaintiff's action is to recover the fair and reasonable rental value of the premises from July 4, 1959 to September 15, 1959. It is agreed there was never an oral or written agreement by defendants to pay rent. The plaintiff contends liability results by operation of law."

The case comes to us on an appeal by the plaintiff from the judgment of the Presiding Justice. As there are no facts before us except those recited in the pretrial order as being agreed upon, the principle that the Justice's findings should stand unless clearly erroneous (Laskey v. L. & L. Manchester Drive-In, Inc., Me., 216 A.2d 310 (1966); Young v. Witham, 75 Me. 536 (1884)) does not apply. Instead, the appropriate test is whether the Justice's order was based upon any error of law. Mellen v. Mellen, 148 Me. 153, 157, 90 A.2d 818, 820 (1952); Pappas v. Stacey and Winslow, 151 Me. 36, 38, 116 A.2d 497, 498 (1955). We find no error.

Although there was never an oral or written agreement by the defendants to pay rent, the plaintiff contends that the law infers a promise to pay from their occupancy and from their disaffirming the contract upon the plaintiff's failure to convey good title within the required sixty days.

The law of Maine on this issue was stated in Weeks v. Standish Hardware & Garage Co., 145 Me. 307, at 311, 75 A.2d 444, at 446 (1950), where the vendor disaffirmed an unenforceable contract to sell:

"The general principle that the implied obligation to pay rent by a vendee in possession arises upon disaffirmance was recognized in Patterson v. Stoddard, 47 Me. 355. It is true that in that case it was the vendee who disaffirmed, but the general principle upon which the rule is founded is the same whether it be the vendor or vendee who disaffirms. Upon disaffirmance the relationship of vendor and vendee is terminated and the law implies an obligation to pay for use and occupation. The extent of the obligation depends upon which party disaffirms. If the vendee disaffirm the law implies an obligation to pay for use and occupation ab initio, whereas if the vendor disaffirm, the implied obligation is to pay only for use and occupation subsequent to the disaffirmance. Such at least is the general rule in the absence of controlling circumstances not here present. * * * "

See also Lapham v. Norton, 71 Me. 83, 88 (1880). The principles stated by these cases appear to conform to the weight of authority as to this issue. Ankeny v. Clark, 148 U.S. 345, 13 S.Ct. 617, 37 L.Ed. 475 (1893); 55 Am.Jur., Vendor and Purchaser, Sec. 363, 611; 91 C.J.S. Vendor and Purchaser § 180; 49 A.L.R.2d p. 1169.

Although recognizing the validity of the rule stated in Standish, the plaintiff contends that, 1) there is an absence of proof that the vendor's title was not good and marketable on the date specified for title closing, 2) that it was the defendants who disaffirmed the contract, and 3) that plaintiff's failure to tender a deed conveying good and marketable title within the time specified for title closing is not disaffirmance in the absence of specific language in the contract that time was of the essence.

The Presiding Justice's pre-trial order stated...