Hamon v. Akers
| Decision Date | 16 March 1976 |
| Docket Number | No. 13581,13581 |
| Citation | 159 W.Va. 396,222 S.E.2d 822 |
| Parties | Ray C. HAMON et al., etc. v. Marshall E. AKERS et al., etc. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
1. 'Parol evidence is always admissible to show the nonexistence of a contract or to show the conditions upon which a writing is to become effective as a contract.' Point 2, Syllabus, Miners' and Merchants' Bank v. Gidley, 150 W.Va. 229, 144 S.E.2d 711 (1965).
2. 'Under the provisions of Rule 56 of the West Virginia Rules of Civil Procedure, when the moving party presents depositions, interrogatories, affidavits or otherwise indicates there is no genuine issue as to any material fact, the resisting party to avoid summary judgment must present some evidence that the facts are in dispute.' Point 2, Syllabus, Guthrie v. Northwestern Mutual Life Insurance Company, W.Va., 208 S.E.2d 60 (1974).
Goodwin, Goodwin, Bryan & Lobert, Stephen P. Goodwin, Ripley, for appellants.
Ralph E. Phillips, Ripley, for appellees.
In the Circuit Court of Jackson County the plaintiffs below, Ray C. Hamon and Dorothy Hamon, his wife, instituted an action against the defendants, Marshall E. Akers and Margaret P. Akers, his wife, wherein they sought specific performance of a contract entered into by said parties. The court subsequently entered an order granting the defendants' motion for summary judgment and the plaintiffs prosecute this appeal.
On June 23, 1973, the plaintiffs entered into a contract with the defendants under the terms of which the defendants agreed to sell to the plaintiffs a described parcel of land consisting of approximately 40 acres for the sum of $6,000.00. On the face of this handwritten agreement, which was signed by all four parties, was a notation showing that the sum of $50.00 had been paid by the plaintiffs in the form of an option, which sum was to be applied to the selling price.
In their complaint the plaintiffs allege that they made a tender of the purchase price to the defendants and requested a conveyance of the land, but that the defendants refused the tender and have refused to make the conveyance. They further allege that they now offer the purchase price. As a result of said refusal to convey, the plaintiffs therein demand specific performance of the contract; damages in the sum of $1,000.00; or, in lieu of specific performance, damages in the sum of $7,000.00.
In their answer the defendants admit that they signed the writing referred to in the plaintiffs' complaint but deny the other allegations. As a defense the defendants say that prior to the signing of the aforesaid contract they advised the plaintiffs that there was a deed of trust upon the subject property to secure Farmers Home Administration in the principal amount of $15,000.00 and that they did not know whether a partial release of said deed of trust could be obtained; that unless a partial release could be obtained, releasing said real estate, they could not sell such real estate to the plaintiffs; and, that the defendants did attempt to obtain a release from Farmers Home Administration but that the latter refused to release the deed of trust. The record contains a copy of a letter from a representative of Farmers Home Administration, dated August 10, 1973, wherein the defendants were informed that their application for a partial release had not been approved.
It is further asserted by the defendants that the said contract for the sale of the subject land is 'null and void and not binding or of any effect inasmuch as said 'agreement' was made subject to defendants being able to secure a release from Farmers Home Administration, and defendants cannot secure said release from Farmers Home Administration, of the aforesaid deed of trust.'
The defendants filed a motion for a summary judgment on the grounds that the plaintiffs' pleadings and affidavits of defendant Marshall E. Akers show that the defendants are entitled to a judgment as a matter of law. The affidavit of Marshall E. Akers reflected the matters alluded to above in relation to their attempt to obtain a release of a deed of trust upon the subject property from Farmers Home Administration and that the fact that such release could not be obtained. He further avers in his affidavit that at the time the contract was executed the plaintiffs agreed that the real estate would not be sold if the release of the deed of trust could not be obtained. There was no response by the plaintiffs to the motion for summary judgment, nor were the averments in the affidavit of defendant Marshall E. Akers in any manner rebutted.
The plaintiffs assign the following reasons in support of their contention that the court erred in granting summary judgment: (1) As a matter of law, a valid written contract for the sale of real estate existed; (2) The affidavit used in support of the defendants' motion for summary judgment was based on inadmissible parol evidence; and (3) There were genuine issues of fact.
In relations to the first assignment the defendants do not deny the existence of a written contract, valid on its face, for the sale of real estate. This, however, is not dispositive of the principal issue in this case. That issue is embodied in the second assignment of error relied upon by the appellants; that is, whether the Akers affidavit in support of the defendants' motion for summary judgment was based on inadmissible parol evidence. If that issue is answered in the affirmative the motion for summary judgment was erroneously granted and the judgment entered pursuant thereto must be reversed. If, however, the affidavit reflects admissible parol evidence the judgment will be affirmed.
Rule 56(e) of the West Virginia Rules of Civil Procedure, where pertinent, provides: 'Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts As would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.' (emphasis supplied) The plaintiffs contend that the statements in the affidavit in relation to the deed of trust and the affiant's inability to obtain a release thereof do not set forth such facts 'as would be admissible in evidence,' as required by the aforesaid Rule 56(e). It is asserted by the plaintiffs that the statements in the Akers affidavit as to the existence of the deed of trust on the subject property were inadmissible as evidence; that the summary judgment, therefore, was based on an improper and inadequate affidavit; and, that such summary judgment was erroneously granted.
In support of their position the plaintiffs cite several decisions of this Court for the well established rule that parol evidence is inadmissible to vary or contradict the terms of a valid unambiguous written contract. In Nettles v. Imperial Distributors, Inc., 152 W.Va. 9, 159 S.E.2d 206 (1968), it was held that where a chattel is sold by a written contract which is silent on the subject of warranties, the purchaser is precluded by the parol evidence rule from proving an express oral warranty made by the seller prior to or at the time of the execution of the written contract. Accord: Wyckoff v. Painter, 145 W.Va. 310, 115 S.E.2d 80 (1960); Central Trust Co. v. Virginia Trust Co., 120 W.Va. 23, 197 S.E. 12 (1938); Tabler v. Hoult, 110 W.Va. 542, 158 S.E. 782 (1931); Leckie v. Bray, 91 W.Va. 456, 113 S.E. 746 (1922). Applying the principles set out in those decisions to the instant case the plaintiffs say that the trial court has permitted the use of parol evidence to vary or contradict a valid unambiguous contract.
The defendants, on the other hand, deny that the statements in the Akers affidavit serve to vary or contradict the terms of the subject contract. The effect of those statements was that the parties had agreed that there would be no conveyance if the defendants could not obtain from Farmers Home Administration a release of the deed of trust on said real estate. The defendants assert that the statements constitute properly admissible evidence to demonstrate a condition precedent to the efficacy of the contract.
Upon examination of the record in this case, particularly the contract and the Akers affidavit, we are of the opinion that the defendants' position properly reflects the majority rule in relation to the admissibility of such parol evidence. This statement is found in 30 Am.Jur.2d, Evidence, § 1038: ...
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