Hansen v. Hill
| Decision Date | 10 November 1983 |
| Docket Number | No. 82-250,82-250 |
| Citation | 215 Neb. 573,340 N.W.2d 8 |
| Parties | Robert L. HANSEN and Marilyn S. Hansen, husband and wife, Appellants, v. Donald W. HILL and Gail Hill, husband and wife, Appellees. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Summary Judgment. A summary judgment is authorized only when the moving party is entitled to a judgment as a matter of law. If there is a genuine issue of fact to be determined, a summary judgment may not be properly entered.
2. Statute of Frauds. A memorandum, in order to make enforceable a contract
within the statute, may be any document or writing, formal or informal, signed by the party to be charged or by his agent actually or apparently authorized thereunto, which states with reasonable certainty (a) each party to the contract either by his own name or by such a description as will serve to identify him, or by the name or description of his agent, and (b) the land, goods, or other subject matter to which the contract relates, and (c) the terms and conditions of all the promises constituting the contract and by whom and to whom the promises are made3. Statute of Frauds. A telegram may constitute a sufficient memorandum under the statute of frauds.
4. Statute of Frauds. A printed name may constitute a sufficient signing under the statute of frauds, provided that it is recognized by the party sought to be charged.
Paul J. LaPuzza, Omaha, for appellants.
John V. McNamara, Omaha, for appellees.
This was originally an action in equity in which [215 Neb. 574] the plaintiffs, Robert and Marilyn Hansen, sought specific performance of an alleged land contract as purchasers. Following a default by the defendants, a decree was entered requiring the defendants to perform the sale agreement and convey the real estate to the plaintiffs.
The defendants filed a motion to vacate this judgment on the ground that they had not been properly served. The decree was vacated and they were given leave to file an answer.
The plaintiffs filed a second amended petition, abandoning their prayer for specific performance and seeking damages for breach of contract. After the defendants' demurrer was overruled they filed a motion for summary judgment, with supporting affidavits. The motion was sustained and the petition was dismissed. Upon denial of their motion for new trial, plaintiffs appeal.
The plaintiffs assign as error the sustaining of the motion for summary judgment and the overruling of the motion for new trial, on the ground that there were material issues of fact which existed, and on the ground that the trial court erred in ruling that the contract between the parties did not satisfy the statute of frauds.
This court, on appeal, must review the allegations of the petition, the supporting documents, and the depositions in accordance with the well-established rule that in considering the motion for summary judgment the court must view the evidence in the light most favorable to the party against whom it is directed.
" " Wolf v. Tastee Freez Corp., 172 Neb. 430, 437, 109 N.W.2d 733, 738 (1961). See, also, Fay Smith & Associates, Inc. v. Consumers P.P. Dist., 172 Neb. 681, 111 N.W.2d 451 (1961).
[215 Neb. 575] Upon reviewing the second amended petition, the depositions, and the documents, we find that there are material issues of fact to be resolved and that the defendants were not entitled to judgment as a matter of law.
The defendants listed certain real estate located at 5016 California Street in Omaha, Nebraska, for sale with Real Estate Associates, Inc., and one of its agents, Mark Abboud. The plaintiffs sought to purchase this real estate and submitted a purchase agreement to the defendants' agent through their own real estate agent, Joseph Fabian.
This purchase offer set out a proposal wherein the plaintiffs agreed to pay $130,000 under certain terms to defendants, with possession on or before December 1, 1980,
with the closing the same date. This purchase agreement was on a standard form and bears the date of October 10, 1980, with certain earnest money provisions and a place where an acceptance could be inserted on the reverse side by the seller defendantsThis offer to purchase was delivered by Fabian to the defendants' agent, Mark Abboud, who phoned the defendants to discuss the particulars of the proposal.
The defendants sought Abboud's advice as to the next move to make, and orally expressed a counterproposal. At Abboud's suggestion they sent a telegram to him. Although there were apparently two telegrams sent to Abboud, it appears that the telegram dated October 9, 1980, was never conveyed to the plaintiffs or their agent, Fabian. The only telegram of which the plaintiffs had knowledge was dated October 10, 1980, and read:
The plaintiffs' agent picked up a copy of this telegram at Abboud's office and conveyed the information to the plaintiffs. Although there is confusion as to the exact date and time, the plaintiff Marilyn Hansen went to Abboud's office and wrote the following on the reverse side of their original proposal:
The defendants would appear to have understood the significance of the October 10 telegram, inasmuch as they attempted to withdraw their "acceptance" by sending a telegram to Abboud on or about October 15, 1980, which read:
Abboud conveyed this information to Fabian, and this suit followed upon defendants' failure to convey the property.
When construed in the light most favorable to the plaintiffs, the facts as set forth indicate that there was a genuine issue of fact as to whether the defendants had accepted the plaintiffs' offer to purchase, and whether the defendants' withdrawal of their offer to sell was timely made, considering the notation which had been made on the reverse side of the purchase agreement. "It is not the purpose of the rule, and it must not be so construed, to deprive a litigant of a formal trial where there is a genuine issue of fact to be determined." Miller v. Aitken, 160 Neb. 97, 101, 69 N.W.2d 290, 292 (1955); Healy v. Metropolitan Utilities Dist., 158 Neb. 151, 62 N.W.2d 543 (1954).
Neb.Rev.Stat. § 25-1332 (Reissue 1979) provides two things the movant must show. First, that there is no genuine issue of fact in the case, and second, that he is entitled to a judgment as a matter of law.
We now come to the issue of whether or not the telegram dated October 10, 1980, was a writing which was sufficient to satisfy the statute of frauds.
Neb.Rev.Stat. § 36-105 (Reissue 1978) provides:
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