Haspray v. Pasarelli

• Decision Date: 30 April 1963
• Docket Number: No. 4559,4559
• Citation: 79 Nev. 203,380 P.2d 919
• Parties: Eugene HASPRAY and Robert Cohen, Appellants, v. Arthur PASARELLI, Respondent.
• Court: Nevada Supreme Court

Page 919

380 P.2d 919

79 Nev. 203

Eugene HASPRAY and Robert Cohen, Appellants, v. Arthur PASARELLI, Respondent.

No. 4559.

Supreme Court of Nevada.

April 30, 1963.

George Rudiak, Las Vegas, for appellants.

Jones, Wiener & Jones, Las Vegas, for respondent.

McNAMEE, Justice.

This is an action for specific performance of an alleged contract to sell real property or for $27,000 damages in lieu thereof. The First Claim alleges a written contract whereby respondent agreed to sell appellant Haspray the Apache Motel for $225,000, a copy of the contract being attached to the complaint marked Exhibit 'A' and hereinafter described. It is further alleged in this claim that Haspray paid respondent $1,000 as a deposit on the purchase price and that thereafter respondent repudiated the agreement and refused to perform the same; that the market value of the property is $252,000.

In the Second Claim appellants allege that respondent entered into an oral contract with them by which he had agreed to sell them the Apache Motel for $225,000 upon the following terms: $25,000 as down payment with a deposit of $1,000 to be paid forthwith, and the appellants to assume payment (a) of the existing first trust deed against the property (b) the furniture contract with a balance of about $7,500 owing (c) the balance of the land contract in about the sum of $25,000, and (d) appellants to execute a second trust deed upon said land in the sum of $67,500, payable in installments of $900 per month including interest at 7% upon the unpaid balance, the entire balance to become due and payable in eight years. In this Second Claim it is alleged that Exhibit 'A' is a written memorandum of said agreement.

In his answer, after certain denials, respondent admits the execution of Exhibit 'A'; that he offered to return the $1,000, which offer was refused, and as an affirmative defense alleges that the alleged agreement fails to set forth the specific terms and conditions of the second trust deed; that the agreement would not come into existence until all details, terms, and conditions of the various encumbrances were fully agreed upon and which would be incorporated into a formal written contract of sale and purchase; and that by virtue of the statute of frauds, NRS 111.210, the memorandum of agreement represented by Exhibit 'A' is insufficient in that it fails to set forth the terms of payment of the mortgage, the debts, and other terms necessary and required to satisfy its requirements.

Exhibit 'A' is a printed form entitled 'RECEIPT AND AGREEMENT,' dated August 12, 1960, and states in part: 'Received from Eugene Haspray, herein called Buyer, the sum of One Thousand Dollars, evidenced by personal check as deposit on account of total purchase price of $225,000 for the Apache Motel, 407 So. Main Street, Las Vegas, Nevada. Buyer will deposit in escrow the balance of the purchase price within 10 days from date hereof as follows: $25,000 down. Buyer to assume First Trust Deed of approximately $100,000. Also furniture contract approximately $7,500 and contract on lot of approximately $25,000. Second Trust Deed of approximately $67,500.'

After certain other provisions not material to this decision, Exhibit 'A' recites:

'The undersigned Buyer offers and agrees to buy the above described property on the terms and conditions above stated.

'[Signed] Eugene Haspray, Buyer'. On the back of Exhibit 'A' appears the following:

'ACCEPTANCE

'The undersigned accepts the offer on the reverse side hereof and agrees to sell the property descibed therein on the terms and conditions therein set forth.

'Dated 8-12-1960.

'[Signed] Arthur Pasarelli.'

After issues were made, respondent moved for summary judgment on the ground that the memorandum (Exhibit A) fails to set forth the terms and conditions of payment of the second trust deed. The motion was supported by the affidavit of respondent which states that Exhibit 'A' is the only writing of any nature subscribed by him in connection with the facts alleged. The affidavit of Haspray was received in opposition to said motion and it states that Exhibit 'E' is an original memorandum in the handwriting of respondent; that respondent agreed to take only $25,000 down rather than $30,000 as originally listed, thereby increasing the amount of the second trust deed from $62,500 to $67,500. This affidavit further alleges that when affiant signed the Receipt and Agreement on August 12, 1960, it was his 'understanding that all of the terms and conditions as set forth in the original listing, 'Exhibit 'E" above referred to, except as modified by our later negotiations, were included in the Receipt and Agreement.'

Exhibit 'E' is as follows:

                'Sale
                '225,000 Sale Price
                '30,000 Down
                '1st Trust Deed $1,000 7 1/2% month 100,000
                'Lot 25,000 7% $350 month
                'Furniture 7% 355 month 7500'
                '2nd Trust Deed $62,500
                '900 month Due 8 years
                '8  per cent interest'
                

There is a conflict in the evidence as to when Exhibit 'E' came into existence, whether during the afternoon of August 12, 1960, the day the Receipt and Agreement (Exhibit A) was signed, or at the time respondent listed the motel with appellant some day before.

The record also contains part of respondent's deposition wherein he testified that there had been no meeting of the minds relative to the terms of the second trust deed, and that Exhibit 'E' was not intended as a memorandum of any agreement between him and Haspray.

Subsection 1 of NRS 111.210 provides: 'Every contract for the leasing for a longer period than 1 year, or for the sale of any lands, or any interest in lands, shall be void unless the contract, or some note or memorandum thereof, expressing the consideration, be in writing, and be subscribed by the party by whom the lease or sale is to be made.'

It is conceded by appellants that Exhibit 'A' alone is insufficient to satisfy the requirements of this statute. See Johnson v. Watson, 72 Nev. 443, 272 P.2d 580; Stanley v. Levy & Zentner Co., 60 Nev. 432, 112 P.2d 1047, 158 A.L.R. 76.

Exhibit 'A' makes no express reference to Exhibit 'E'. Appellants maintain that it can be implied from Exhibit 'A' that Exhibit 'E' which specifies the terms of payment of the second trust deed was intended by the parties to be a part of Exhibit 'A', and that the two instruments together satisfy the requirements of the statute of frauds.

In the present case the trial court held as a matter of law that Exhibit 'E' bearing no date and not being subscribed by respondent although in his handwriting was not the type of memorandum called for by the statute of frauds, because it could not be ascertained therefrom whether Exhibit 'E' was merely some work paper that respondent may have written preliminary to an arrival at some final agreement by the parties. For this reason the motion for summary judgment was granted.

In Bowker v. Goodwin, 7 Nev. 135, 138, this court stated that where two instruments [a promissory note and an agreement in relation thereto] were executed together as one transaction they constituted but one instrument or contract, although written on different pieces of paper. 'They would have to be taken and construed together as if written on the same paper and signed by both parties. The law in such case deals with the matter as it really was--as one transaction--and therefore all the papers drawn up simultaneously bearing on the same subject are held to be but one contract, although written on several papers.' In that case upon conflicting evidence the trial court concluded that the two instruments should be taken as one contract, executed simultaneously.

Two separate writings may be sufficiently connected by internal evidence without any express words of reference of one to the other. That they refer to the same transaction and state the terms thereof may appear from the character of the subject matter and from the nature of the terms. 2 Corbin,...