Krupinsky v. Birsky

• Court: Vermont Supreme Court
• Writing for the Court: Before HOLDEN; SMITH
• Citation: Krupinsky v. Birsky, 278 A.2d 757, 129 Vt. 400 (Vt. 1971)
• Decision Date: 01 June 1971
• Docket Number: No. 83-70,83-70
• Parties: Joseph L. KRUPINSKY et al. v. Otten BIRSKY and S. R. Young, Inc.

Page 757

278 A.2d 757

129 Vt. 400

Joseph L. KRUPINSKY et al. v. Otten BIRSKY and S. R. Young, Inc.

No. 83-70.

Supreme Court of Vermont.

June 1, 1971.

Whitcomb, Clark, Moeser & Zug, Springfield, for plaintiffs.

John Parker, and George W. Lamb, Springfield, for defendants.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

SMITH, Justice.

This is an appeal from the Windsor County Court of Chancery involving the validity of a claimed option granted on August 30, 1961, to S. R. Young, Inc., by Boles of Birsky, Marjorie Birsky, Alphonse Birsky, Myrtle Birsky, Michael Yarosevich and Albina Yarosevich. Findings of fact made by the Windsor County Court of Chancery, after hearing, and the decree of the Chancellor, held the claimed option to be invalid.

An agreement was entered into by the Birskys above enumerated and S. R. Young, Inc., on August 30, 1961:

'DEPOSIT RECEIPT AND SALES AGREEMENT

Springfield, Vermont, August 30, 1961

Received from S. R. Young, Inc. the sum of Five Thousand and no Dollars as a deposit on account of the purchase price of the following described property, situated in the Springfield County of Windsor state of Vermont, to wit: All the land situate only on the southerly side of the highway leading from Chester to Springfield known as Route No. 11. Comprising 17.04 acres, be the same more or less.

Total purchase price is One Hundred Twenty Five Thousand and no Dollars balance of the purchase price to be paid as follows, to wit: Maximum of 30 per cent down and balance to be paid in equal payments over a period of ten years. It is so agreed S. R. Young, Inc. to have first option on remaining Birsky property situated on the northerly side of highway from Chester to Springfield known as Route 11. Also the Birskys agree not to sell or build property for the purpose of construction of Retail Stores in case S. R. Young, Inc. forfeit their option to buy. The above is for a ten year period. I agree to sell the above described property on the terms and conditions herein stated and agree to pay the agent * * *.'

This is followed by the signatures of various members of the Birsky family. The agreement was recorded in August of 1969.

S. R. Young, Inc., made the various payments specified in the sales agreement and received a deed to the property on the southerly side of the highway upon which was constructed a shopping center. However, over the intervening years a dispute arose among members of the Birsky property relative to the disposition of the property on the northerly side of Route No. 11. This led to the filing of a Petition for Partition in the Windsor County Court of Chancery. Commissioners were appointed to sell the premises in question and such Commissioners entered into an option agreement to sell the premises for a price of $95,000.00 on May 8, 1969.

However, before such option was exercised, apparently the Commissioners discovered the existence of the previous alleged option to S. R. Young, Inc., and had served upon S. R. Young, Inc., a copy of the 'Report and Petition' of the Commissioners. Upon the offer of S. R. Young, Inc., to pay to the Commissioners the same amount of $95,000.00 which had been made in the third party offer, the agreed statement of facts show that the Commissioners and Young agreed that if the Chancellor found that the purported option held by Young was valid and binding, the Commissioners would sell to Young the property upon the agreed price of $95,000.00.

The conclusionary finding of fact made by the Chancellor below, upon which the decree was based is:

'The Court finds that the so-called first option agreement contained in the 'Deposit Receipt and Sales Agreement' between S. R. Young, Inc., and the various members of the Birsky family dated August 11, 1961, and recorded in the Land Records of the Town of Springfield is invalid and not enforceable against the Commissioners appointed by the Windsor County Court of Chancery in that the agreement does not meet the requirements of the Statute of Frauds.'

While the findings of the Chancellor do not disclose the specific reasons upon which his conclusionary finding was based, it is clear from the briefs before us that the action of the Chancellor was based upon the lack of a stipulated price set forth in the 'first option' given to Young by the Birskys, as well as a refusal based upon the Statute of Frauds to allow oral testimony to be offered upon the subject of the price to be paid by Young to the Birskys in the event he exercised his option.

Turning directly to the questions presented, there is no doubt that the Deposit Receipt and Sales Agreement made between Young and the Birskys was a single contract, and that the price paid, and to be paid by Young was not only for the land which he acquired on the southerly side of Route No. 11, but for the promised forbearance on the part of the Birskys not to build a retail store on the northerly part of the premises, owned by them, and to grant him a 'first option' as well. In other words, consideration was paid by Young for the option which was a part of the total contract between the parties.

An option has been defined by this Court as an agreement by which one binds himself to sell and convey to another party certain property at...