Lacey v. Cardwell

• Decision Date: 05 September 1975
• Docket Number: No. 740837,740837
• Citation: 216 Va. 212,217 S.E.2d 835
• Court: Virginia Supreme Court
• Parties: Melvin G. LACEY v. John L. CARDWELL et al. Record

Page 835

217 S.E.2d 835

216 Va. 212

Melvin G. LACEY v. John L. CARDWELL et al.

Record No. 740837.

Supreme Court of Virginia.

Sept. 5, 1975.

Charles E. Carter, Danville, for plaintiff in error.

Charles R. Warren, Jr., Danville (Warren, Parker & Williams, Danville, on brief), for defendants in error.

Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

HARRISON, Justice.

Melvin G. Lacey filed his petition in the court below seeking an attachment against the estates of John L. Cardwell, Lillian M. Cardwell and Annie Cardwell Gosney, residents of California, to satisfy petitioner's claim of $100,000, with interest from July 1, 1973.

Petitioner alleged that the appellees, acting through an agent, contracted to sell him a tract of land in Pittsylvania County, Virginia, containing 284 acres, more or less, for $250,000, and thereafter failed to comply with the agreement. Responsive pleadings were filed, and the lower court, 'having considered all the exhibits introduced by stipulation or by depositions but not the depositions', concluded that the negotiations between Lacey and the real estate agent did not 'go beyond the negotiation stage'. The court held that the Statute of Frauds was 'not satisfied by the writings now made a part of the record', granted appellees' motion for summary judgment and dismissed appellant's petition.

The chronology of this case is important. Dr. John L. Cardwell and his sister, Annie Cardwell Gosney (hereinafter referred to as Cardwell), being desirous of selling their farm in Virginia, employed Steve Bendall, who trades as the John R. Bendall and Company (Bendall), as their sales agent. While there had been previous dealings between Cardwell and Bendall, the first exhibit is a letter dated December 8, 1972, from Bendall to Cardwell, in which he recommended that the property be offered at public auction, subject to Cardwell's confirmation.

On April 18, 1973, Bendall wrote Cardwell a letter enclosing a map that had been prepared designating various parcels of the 'Cardwell Farm' which would be offered at auction. This letter discussed the manner in which the auction would be conducted to attract investors, and Bendall expressed the opinion that thereby he could secure $750 to $950 per acre. Bendall further suggested that he be authorized by Cardwell to offer the entire property for the sum of $250,000 to any interested party who inquired before the first auction ad appeared in the paper.

Cardwell responded on April 23rd and agreed that the proposed subdivision plan was logical; that the auctions ale was to be conducted on June 30th; and that Bendall be authorized 'to offer the entire property for $250,000 to any interested party'. Cardwell inquired: 'May I reserve the right to refuse a private offer if I so desire?' He also stated that two parties had discussed with him a $200,000 price for the property.

On April 28th Cardwell wrote Bendall: 'Confirming our telephone conversation, enclosed is signed auction contract regarding the 'Cardwell Farm'.' This contract or agreement, dated April 19, 1973, is signed by Dr. Cardwell and wife, by Dr. Cardwell at attorney-in-fact for Mrs. Gosney, and by Steve Bendall on behalf of the John R. Bendall and Company. The landowners employed Bendall as their exclusive sales agent 'to dispose of' their land. It was agreed, among other things, that the agent would conduct a public auction sale on or about June 30th; that terms of the sale were to be 'cash on closing . . . but terms of sale may be varied by mutual consent . . .'; and that '(a)ny or all parcels' would be offered subject to seller's right of confirmation. The final paragraph of the agreement, containing the authority of the agent to make a private sale of the property, reads: 'Sales Agent is authorized under this contract to offer the entire property for the sum of $250,000 until June 15, 1973.'

The next pertinent exhibit is a 'Real Estate Purchase Contract' dated May 7, 1973, signed by Lacey and Bendall. By the terms of this contract Lacey agreed to buy through Bendall as agent for the seller, and the seller agreed to sell the Cardwell farm for $250,000, to be paid $10,000 'down on signing of this contract', $40,000 on delivery of deed, and the balance in annual installments with 6% Interest. The name of John L. Cardwell was typed in the space provided for the signature of the seller.

A further exhibit is a contract of sale dated May 10, 1973, prepared by an attorney, William E. Anderson, for the signatures of Lacey, Bendall and the sellers. It embodied more formally the provisions of the May 7th real estate purchase contract and proposed that the $200,000 balance of purchase price be paid in 15 annual installments, bearing 6% Interest. This contract bears the signatures and acknowledgments of Lacey and Bendall.

On the same day, May 10th, Anderson prepared an agreement between Bendall and Larcey whereby Bendall agreed that should the terms of the May 10, 1973 agreement be not acceptable to Cardwell, Lacey was to have the privilege of renegotiating the terms and conditions with the seller prior to the property being sold to another party.

On May 11th, Bendall wrote Cardwell, who was then vacationing in Hawaii, and enclosed the May 10th contract prepared by Anderson. Bendall wrote: 'This contract is based on the $250,000 figure which I was authorized to quote prior to the auction announcement of June 15. Since no definite terms regarding a private sale were discussed, I have suggested to Mr. Lacey terms which I thought would meet with your general approval.' Cardwell was advised that Lacey had made a $10,000 cash deposit on the purchase price, and that the purchaser was financially able to fulfill the terms of the contract.

It also appears from an exhibit that on May 10, 1973, Jamerson C. White and Charles M. Hawker approached Bendall and 'inquired about the possible purchase of the property'; that Bendall advised White and Hawker that he had received a contract in the amount of $250,000 and he 'considered the property 'SOLD"; that notwithstanding this, White informed Bendall that he was going to instruct his attorney to prepare a contract to be submitted to Cardwell. Bendall submitted both contracts in order, he said, to comply with Virginia real estate regulations. The proposed White and Hawker contract called for a sale of the property for $250,000, of which $12,500 was to be deposited with Bendall and the balance was to be paid 'in any manner requested' by the seller, with interest not exceeding 8%.

Upon receipt of the two proposed contracts, Cardwell wrote Bendall from Hawaii on May 15, 1973, that the Lacey bid did not appeal to him and that the White-Hawker bid seemed better in many respects. He deferred any decision until he could confer with his California attorney.

On May 18th Bendall acknowledged receipt of Cardwell's letter and requested that Cardwell, upon his return to Sacramento, instruct his California attorney to advise Bendall of the terms which Cardwell would require.

The next development was Cardwell's return from Hawaii and his consultation on June 5th with Francis B. Dillon, his California attorney. In a letter from Cardwell to Bendall, dated June 6, 1973, he enclosed Dillon's typewritten suggestions for the sales contract on the farm. Cardwell observed that the suggestions 'seem correct to me'. Dillon's memorandum provided for a purchase price of $250,000, a sum not exceeding 30% Or $75,000 in cash, the balance to be payable in 8 equal and semi-annual installments, bearing 8% Interest.

Thereafter, in a letter from Dillon to Bendall, dated June 26th, Dillon stated that he then represented Cardwell and his sister 'for all purposes' in matters concerning the Virginia property; that the offers made by Lacey and by White and Hawker were rejected; that Bendall's authority to negotiate at $250,000 terminated on June 15, 1973; and that Cardwell would sell the property for $300,000 cash.

The contents of Dillon's June 26th letter had been communicated to Bendall over the telephone. Responding thereto on June 27th, Bendall wrote Cardwell, sending a copy to Dillon. After noting that Cardwell had increased the price to $300,000, Bendall recapitulated his various negotiations and agreements with Lacey as follows:

'On Friday, May 4, 1973, I was contacted by Mr. Melvin G. Larcey who had heard that the property was going to be offered for sale at public auction. I advised Mr. Lacey that the property was scheduled for auction on Saturday, June 30, 1973. He then asked me if the property could be purchased prior to the sale date. I told him I was authorized to quote a price of $250,000 prior to June 15, 1973. Mr. Lacey advised me that he would get in touch with me later if he so wished to give a contract to purchase the property for the above stated figure.

'On Monday, May 7, 1973, Mr. Lacey contacted me and requested that I draw up a contract for $250,000 to purchase the property. I told him that I would; however, I recommended that an Attorney be employed to prepare the contract since I did not want to have any misunderstanding on anyone's part. Attorney William E. Anderson was decided upon to be the Attorney to draw up the contract which he did on May 10, 1973. A copy of which was immediately forwarded to you. Mr. Lacey asked me if I thought terms would be more acceptable to you, taking into consideration your income tax status. I advised Mr. Lacey and Attorney Anderson to prepare a contract setting forth the terms which I considered in your best interest and subject to your approval. Since I did not have a Power of Attorney for you, I could not legally accept or reject his contract proposal.

'It would be up to you as to whether or not you wanted to accept $25,000, cash, or other mutually agreed terms.'

In a letter to Dillon dated July 2nd, Bendall wrote: 'It was Mr. Lacey's intention to pay $250,000 cash with $10,000 down or...