Mack v. Coker

• Citation: 523 P.2d 1342,22 Ariz.App. 105
• Decision Date: 09 July 1974
• Docket Number: No. 1,CA-CIV,1
• Parties: A. R. MACK and Madeline Mack, his wife, Appellants, v. Fremon C. COKER, Jr., and Patricia Coker, his wife; Robert G. Coker and Primrose M. Coker, his wife; and Elmer L. Coker and Myrtle Coker, his wife, Appellees. 2549.
• Court: Court of Appeals of Arizona

Page 1342

523 P.2d 1342

22 Ariz.App. 105

A. R. MACK and Madeline Mack, his wife, Appellants, v. Fremon C. COKER, Jr., and Patricia Coker, his wife; Robert G. Coker and Primrose M. Coker, his wife; and Elmer L. Coker and Myrtle Coker, his wife, Appellees.

No. 1 CA-CIV 2549.

Court of Appeals of Arizona, Division 1.

July 9, 1974.

Rehearing Denied Aug. 12, 1974.

Richardson & Mortensen by Wilford R. Richardson, Safford, for appellants

James H. Green, Jr., Phoenix, for appellees.

OPINION

KRUCKER, Judge.

This appeal challenges the propriety of granting summary judgment in favor of the appellees for specific performance of three option agreements and denying relief to appellants on their counterclaim for slander of title. Since we are of the opinion that enforcement of the option agreements was proper, we need not address ourselves to the ruling re appellants' counterclaim, which was predicated on the alleged non-validity of the option agreements.

The undisputed material facts are as follows. On November 2, 1971, three individual option agreements were executed by appellants, one with Fremon C. Coker, Jr. and his wife, one with Robert G. Coker and his wife, and one with Elmer L. Coker and his wife. Since the terms of all three agreements are exactly the same, as are the legal principles pertaining thereto, we shall hereinafter refer to them in the singular.

The option agreement was a form prepared by the Farmer's Home Administration of the United States Department of Agriculture. It provided that it was irrevocable for a six-month period commencing November 2, 1971. Appellants agreed therein to convey to the named optionees a specifically described parcel of land for the sum of $66,666.67. The agreement recited that it was given in consideration of the sum of $1.00 in hand paid and other valuable consideration, the receipt and sufficiency of which were acknowledged. One provision was:

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'2. This option is given to enable the Buyer to obtain a loan insured or made by the United States of America, acting through the Farmers Home Administration, United States Department of Agriculture, (hereinafter called the 'Government'), for the purchase of said property. It is agreed that the Buyer's efforts to obtain a loan constitute a part of the consideration for this option and any down payment will be refunded if a loan cannot be processed by FHA or cannot be obtained from another source.'

The agreement further provided for the optionee's exercise of the option by mailing, telegraphing or delivering in person a written notice of acceptance of the offer contained therein at any time while the offer remained in force to A. R. Mack at 312 East 20th Street, Safford, Arizona.

On March 30, 1972, appellants' attorney sent a letter to appellees on behalf of the appellants repudiating the option agreement. On April 17, 1972, appellees mailed to appellants written notices of their intention to exercise their respective options, which were on forms provided for this purpose by the Farmers Home Administration. On May 17, 1972 and May 24, 1972 letters were sent to appellants' attorney by an officer of the title company escrow department. The first letter advised him that the escrow department was holding three checks, drawn on the Treasurer of the United States, for the use of the three buyers involved in the purchase of the Mack property, the total being in the amount of $199,500.00. The balance of the funds necessary to complete the transaction, i.e., $500, was to be deposited with the escrow agent by the three buyers. He requested notification 'when your client is in a position to close'.

The second letter, addressed to Mr. Mack, indicated the three escrows had been set up and enclosed signed escrow instructions covering each of the escrows, together with warranty deeds and affidavits. He requested execution of all documents with appropriate acknowledgment and their return to him. Also enclosed was a copy of a preliminary title report and Mr. Mack was requested to have his attorney furnish the escrow agent with the necessary documents pursuant to the requirements set forth therein. All necessary signatures from the buyers had been obtained, according to the letter, together with all funds needed to effect closing of the escrow; also, that upon receipt of the signed documents from Mr. Mack recording and disbursement of funds would be effected. Appellants refused to consummate the transaction and this litigation ensued.

Appellants assail the validity of the option agreement on the grounds that (1) appellees were supposed to pay them $20,000 of the purchase price on or before January 1, 1972; (2) it was executed solely for the purpose of 'determining whether Cokers could borrow the full amount of the purchase price' and (3) there was lack of consideration. We find absolutely no merit in appellants' position.

The option agreement does not provide for a $20,000 payment and reflects no ambiguity. In the absence of fraud or mistake, parol evidence is inadmissible to change, alter or vary the express terms in a written contract. Hofmann Co. v. Meisner, 17 Ariz.App. 263, 497 P.2d 83 (1972). Appellants' belated attempt to prove that payment of $20,000 of the purchase price, on or before January 1, 1972, was required would do violence to the parol evidence rule in the face of an unambiguous writing. It is true that the parol evidence rule is no bar to proving that a writing was never executed or delivered as a contract. United States Fidelity & Guaranty Co. v. Olds Brothers Lumber Co., 102 Ariz. 366, 430 P.2d 128 (1967). Appellants, however, postulate the argument that they did not intend the options to be effective as such is raised for the first time on appeal and therefore comes too late.

As to appellants' 'lack of consideration' contention, they make much of the fact that the $1.00 recited as part of the consideration in the agreement was not paid. Suffice it to say that monetary consideration is not required--good consideration consists of a benefit to the promisor or detriment to the promisee. Grant v. White, 103 Ariz. 257, 439 P.2d 828 (1968); McGrath v. Bill Johnston Golf Properties, Inc., 13 Ariz.App. 49, 474 P.2d 56 (197...