Larabee v. Booth

• Decision Date: 14 May 1984
• Docket Number: No. 4-383A97,4-383A97
• Citation: 463 N.E.2d 487
• Parties: Clara B. LARABEE, William N. Larabee, and S. Joan Smock, Appellants (Defendants Below), v. Lonnie L. BOOTH, and Jean S. Booth, Appellees (Plaintiffs Below).
• Court: Indiana Appellate Court

Page 487

463 N.E.2d 487

Clara B. LARABEE, William N. Larabee, and S. Joan SmockAppellants (Defendants Below), v.Lonnie L. BOOTH, and Jean S. Booth, Appellees (Plaintiffs Below).

No. 4-383A97.

Court of Appeals of Indiana Fourth District.

May 14, 1984.

John D. Gay, Gay & McCombs, Versailles, for appellants.

Gary Sorge, Lehner & Sorge, Lawrenceburg, John T. Lorenz, Kightlinger Young Gray & Detrude, Indianapolis, for appellees.

YOUNG, Judge.

Lonnie L. and Jean S. Booth filed suit against Clara B. and William N. Larabee and S. Joan Smock(hereinafter collectively "the Larabees") seeking specific performance of an agreement to convey land.The court found for the Booths and ordered specific performance.The Larabees appeal.

We affirm.

The relevant facts are as follows.In 1971, Clara Larabee owned a farm in Dearborn County, subject to a life estate in her mother.At this time, the Larabees and Booths were good friends, and the Booths visited the farm several times.In the autumn of 1971, the parties discussed the possibility of the Booths building a summer cottage on the Larabees' farm.The parties reached an agreement, and construction began in the spring of 1972.Soon thereafter, the Booths asked if they could build a permanent home there, and Clara agreed.In September 1972, the Larabees executed an "Agreement to Convey Land," which read as follows:

We, Clara B. Larabee and Willian N. Larabee, her husband, of Marion County, Indiana, hereby agree to CONVEY AND WARRANT to Lonnie L. Booth and Jean S. Booth, husband and wife, of Hamilton County, Ohio, the following described parcel of land on our farm located in Dearborn County, Indiana (formerly owned by Joseph Block and Sophie Block) at the time that we acquire a fee simple title and at the expiration of the outstanding life estate in such land.The parcel to be conveyed is approximately bounded as follows:

Beginning at a point on the edge of the hollow on the eastern side of the Booth House; thence along the water line of the proposed lake to a point midway between the Booth home and the proposed home to be built by me; thence south, along this line to the site of the old garden fence; thence easterly, along the fence line, to the edge of the hollow on the eastern side of the house; thence northerly, to the point of beginning at the water line.

This land is to be conveyed for no consideration from Lonnie L. Booth and Jean S. Booth.I hereby renounce any and all interest in the home the Booths are now building on this land at the present time and it is to be treated as if this conveyance were already made.

IN WITNESS WHEREOF, we have hereunto set our hands and seals this 14th day of September, 1972.

Lonnie Booth testified that, even prior to this agreement, the parties had understood that the Booths would receive a deed to the property when the house was completed and the life estate of Mrs. Larabee's mother expired.

When the house was completed, however, and the life tenant had died, the Larabees refused to give the Booths a deed to the property.The present litigation ensued.The trial court originally found the Larabees had made a gift of the property.This court reversed that finding, however, and remanded the case for further proceedings.Larabee v. Booth, (1982) Ind.App., 437 N.E.2d 1010, on rehearing 440 N.E.2d 489.On remand, the trial court again entered judgment for the Booths, finding that the Larabees had made a binding contract to convey the land.

In challenging this judgment, the Larabees raise several issues:¹

1.Whether there was sufficient evidence to prove a binding contract existed;

2.Whether the statute of frauds precluded enforcement of this contract;

3.Whether the Booths' repudiation of the contract precluded its enforcement;

4.Whether the contract's terms were too vague to support an order of specific performance; and

5.Whether the court erred in granting the Booths an easement over a driveway across the Larabees' property.

I.

The Larabees first contend the Booths failed to prove the existence of a binding contract, since there was no consideration for the Booths' promise to convey and since there was no formal offer and acceptance.We disagree.This issue is settled by the doctrine of promissory estoppel, which has been summarized as follows:

A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by the enforcement of the promise.

Eby v. York-Division, Borg-Warner, (1983) Ind.App., 455 N.E.2d 623, 627;Lyon Metal Products, Inc. v. Hagerman Construction Corp., (1979)181 Ind.App. 336, 391 N.E.2d 1152;see alsoRESTATEMENT (SECOND) OF CONTRACTSSec. 90(West 1981).Although Indiana cases applying this doctrine have dealt with promises of employment, Eby, supra, and construction bidding, Lyon Metal Products, supra, the rule clearly applies to gratuitous promises to convey land.SeeChapman v. Bomann, (1978) Me., 381 A.2d 1123(gratuitous promise to sign land sale contract enforced).

To establish a contract based on promissory estoppel, the Booths were required to prove three elements: (1) that the Larabees made a promise which they should reasonably have expected to induce the Booths to act, (2) that this promise induced the Booths to take action of a substantial character, and (3) that injustice could only be avoided by enforcing the promise.SeeEby, supra, at 627.In determining whether the Booths met this burden of proof, we examine all the evidence in the light most favorable to the court's decision.We will affirm if there is substantial evidence to establish every element of the Booths' claim.Display Fixtures Co. v. R.L. Hatcher, Inc., (1982) Ind.App., 438 N.E.2d 26;Royer v. Pryor, (1981) Ind.App., 427 N.E.2d 1112.

The evidence here shows that in 1971the parties discussed the possibility of the Booths building a house on the Larabees' property.The parties reached an agreement, and the Booths began construction in the spring of 1972.In September 1972, while construction was still in progress, the Larabees executed the written "Agreement to Convey Land," in which the Larabees promised to convey to the Booths, for no consideration, the parcel of land on which the Booths were building their house.Lonnie Booth testified that, even before this agreement was executed, the parties had understood that the Booths would receive a deed when they finished the house.Thus, speaking of the written "Agreement to Convey," Booth said:

Oh, really it was kindly [sic] immaterial, I thought.I didn't ask them for the paper, they made it up and gave it to me.My understanding was that just like the paper said .... that Clara would give us a deed to the property.There was never any problem, I mean I took Joan and Clara's word.

From this testimony, the court was entitled to infer that the "Agreement to Convey" merely restated the parties' previous understanding.Thus, there was substantial evidence that, before the Booths began construction, the Larabees agreed to convey the disputed parcel to the Booths.Further, in light of the parties' friendship at the time of this promise, the court was justified in finding that the Larabees should reasonably have expected this promise to induce the Booths to act.

Moreover, the evidence clearly shows that the Larabees' promise did induce substantial action on the part of the Booths.The Booths spent two years and a great deal of money building a house on the Larabees' land, doing much of the work themselves.Lonnie Booth testified the finished house was worth $95,000.Also, Lonnie and his son cleared the weeds and bushes from the lot and constructed a pond.The Booths made this house their home.Under these circumstances, the trial court could properly find that injustice could be avoided only by enforcing the Larabees' promise to convey.The evidence was sufficient to prove a binding contract existed under the doctrine of promissory estoppel.

II.

The Larabees next contend any contract between them and the Booths was too vague to satisfy the statute of frauds, Ind.Code 32-2-1-1 et seq.(1982), and thus was unenforceable.The Larabees, however, did not raise this defense in their answer as Ind.Rules of Procedure, TrialRule 8(C) requires.Nor did they raise it at trial prior to their motion to correct errors.By so doing, the Larabees denied the Booths the opportunity to present evidence in opposition to this defense.Thus, we find the Larabees have waived this issue.Dawson v. St. Vincent Hospital & Health Care Center, (1981) Ind.App., 426 N.E.2d 1328, overruled on other grounds, Siebert Oxidermo, Inc. v. Shields, (1983) Ind., 446 N.E.2d 332.

III.

The Larabees further argue that, because the Booths repudiated the parties' contract, the court erred in enforcing it.They cite no pertinent authority on this point, however.This issue is therefore waived.A.R. 8.3(A)(7);Board of Commissioners v. Nevitt, (1983) Ind.App., 448 N.E.2d 333.

IV.

Next, the Larabees claim the court erred in ordering specific performance of the contract because the property to be conveyed was not described with sufficient certainty.A contract to convey real estate generally may not be enforced by specific performance unless the evidence is such that the court may determine with reasonable certainty what property the promisor agreed to convey.SeeWarner v. Marshall, (1905)166 Ind. 88, 75 N.E. 582;Beerbower v. Garman, (1947)117 Ind.App. 667, 75 N.E.2d 556.

The parties here stipulated that, before this suit was filed, Clara Larabee hired a surveyor and asked him to survey the land that she had given to the Booths.From...