Lorenz v. Rowley
| Decision Date | 02 January 1962 |
| Docket Number | No. 197,197 |
| Citation | 122 Vt. 480,177 A.2d 364 |
| Parties | Herbert W. LORENZ and Gertrude H. Lorenz v. George A. ROWLEY and Lawrence G. Rowley. |
| Court | Vermont Supreme Court |
Kinney & Cook, Rutland, for plaintiffs.
Edwin W. Lawrence, Rutland, for defendants.
Before HULBURD, C. J., SHANGRAW, BARNEY and SMITH, JJ., and DALEY, Superior Judge.
This is a proceeding in chancery. Hearing was held before the Chancellor. Findings of fact were made and a decree was entered dismissing the bill of complaint with costs to the defendants. The case is brought here by notice of appeal duly filed by the plaintiffs.
The bill sought a decree imposing a trust in favor of the plaintiffs on certain land and premises in the Town of Londonderry, Vermont, and, further relief by way of an accounting of the proceeds received by the defendants from the sale of a portion of the above premises. The plaintiffs also requested injunctive relief relating to that part of the property not disposed of, and, concluded with a prayer that the defendants be required to execute a legal conveyance to them of the remaining property not disposed of. The plaintiffs assign error as to certain findings, the Chancellor's failure to find, and to the decretal order.
The findings develop these facts. The property in question, used as a girls' summer camp has a frontage of 3000 feet on a private lake and consists of about 250 acres of land with buildings thereon generally consisting of a barn, dining hall, store, lavatories, cabins, and certain recreational equipment and facilities. Located on this property was a quantity of hard and soft wood timber valued at approximately $2,250.
The plaintiffs purchased this land on July 1, 1934 for $6,000. and on August 24, 1934 mortgaged the property to the Brattleboro Trust Company of Brattleboro, Vermont for $5,000. On July 5, 1938 this mortgage was assigned to the County National Bank of Bennington, Vermont. On November 13, 1942 the County National Bank foreclosed the mortgage and on January 11, 1944 a decree was filed ordering the defendants, and other parties in interest, to pay $3,046.35 on or before the 11th day of March 1944 with interest from the date of the decree. On February 9, 1944 the County National Bank gave Lindley S. Squires, an attorney representing the plaintiffs, an option to repurchase the property on their behalf for the sum of $3,046.35 with interest from January 11, 1944 until date of payment. This option expired July 11, 1944.
In 1941 the plaintiffs were heavily in debt and insolvent owing various creditors about $20,000. and this situation persisted to a greater or lesser degree to 1944. In 1941 Elmer Hanson was made trustee of plaintiffs' property and upon his appointment assumed the management thereof. No substantial repairs were made on the property during the last years of the plaintiffs' ownership and it was in a general 'run down' condition.
During the operation of this property by the plaintiffs, the defendants performed services for the plaintiffs in the nature of trucking, ice cutting and storing, taxi service, and the sale of commodities used by the plaintiffs. On or about July 3, 1944, the plaintiffs, not having been successful in obtaining the necessary funds with which to exercise the option to purchase or in their efforts to obtain someone to do so, called upon the defendants for financial assistance to exercise the option. Plaintiff Herbert W. Lorenz explained to the defendants that his attorney had obtained an option to repurchase the property, and informed the defendants that he knew of a party from whom he could obtain the funds to repurchase the property but that there would be a delay of three to four months which would be too late. At the time of this conversation it was represented, and found by the Chancellor, Finding No. 12, * * * 'that if the defendants would exercise the option for them he would obtain the money and repay defendants in three or four months, and if plaintiffs did not take the property off their hands in three or four months defendants could keep the property as he rather see defendants have it than the bank.'
The defendants informed Mr. Lorenz that they did not have the money to loan and did not care to make him one. Later the defendants caused the timber to be cruised, after which Mr. Rowley informed the plaintiffs that they would exercise the option of purchase held by attorney Squires and proceeded to his office where the option was assigned to the defendants. The defendants were under no obligation to salvage this property for the plaintiffs. However, on July 10, 1944 they obtained from the bank a warranty deed to the property and paid the sum of $3,429.78. $3,000. of this amount was obtained by them on a loan from Ralph A. Jones.
To preserve the continuity of events we refer to finding No. 17 which is challenged by the plaintiffs.
On July 11, 1944 the plaintiffs and defendants went to an attorney's office in Rutland for the purpose of having an agreement prepared concerning the disposition of the property, title to which was then in the names of the defendants. By reason of their differences no agreement was prepared. Mr. Lorenz returned to his place of employment in Ohio the afternoon of July 11, 1944 following the conference at the law office. On several occasions during the summer of 1944, subsequent to July 12th, Mrs. Lorenz and the defendants discussed an agreement but no agreement concerning the property was ever made. During the summers of 1944-1945 the plaintiffs operated the property as a girls' camp. The defendants did not request payment of rent, nor did the plaintiffs offer to pay any.
About February 1, 1945 the defendants sold a quantity of timber off said property and received the sum of $2,250. Later, on March 28, 1947 they sold all of the property except a so-called '40 acre lot' to Mr. and Mrs. Nathan Frankfurt for the sum of $5,500. The defendants paid a brokerage fee of $500. This sale was consummated without notice to the plaintiffs. The defendants at the time of hearing, June 1956, owned the 40-acre lot which had a value of $1,900.
The plaintiffs at no time had the funds with which to exercise the re-purchase option, nor did they at any time offer to pay or tender the defendants any sum or sums of money for a conveyance of the property to them, or make a demand upon the defendants for a conveyance of the property.
The Chancellor was unable to find the fair market value of the property in July 1944; however, the following finding was made, which plaintiffs urge is not supported by the evidence.
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