Mitchell v. Land

• Citation: 355 P.2d 682
• Decision Date: 19 September 1960
• Docket Number: No. 9,9
• Parties: Paul A. MITCHELL, Appellant, v. Basil LAND and Elizabeth Land, husband and wife, Appellees.
• Court: Supreme Court of Alaska (US)

Page 682

355 P.2d 682

Paul A. MITCHELL, Appellant, v. Basil LAND and Elizabeth Land, husband and wife, Appellees.

No. 9.

Supreme Court of Alaska.

Sept. 19, 1960.

Albert Maffei, Anchorage, for appellant.

Hughes & Thorsness, Anchorage, for appellees.

Before NESBETT, C. J., and DIMOND and AREND, JJ.

AREND, Associate Justice.

The appellant, Paul A. Mitchell, commenced this action in 1954 in the District Court for the District (Territory) of Alaska to recover damages for breach of contract by the appellees (defendants below) to convey to him an exclusive easement for a private road across their land. At a pretrial conference it developed that the contract was an oral one and possibly within the Statute of Frauds, whereupon the appellees moved for judgment on the pleadings as supplemented and amended by the pre-trial order. The Court gave judgment for the appellees and the appellant appealed.

In his complaint Mitchell, as plaintiff below, alleged that on September 4, 1953, he and the appellees mutually agreed that the appellees would convey to him 'an exclusive right of way easement for a private road, for ingress and egress' to and from his land over and across a portion of appellees' adjoining land, describing it, in consideration of $410 to be paid to them by Mitchell. On the same day Mitchell gave the appellees a $300 down payment in the form of a cashier's check payable to himself. He endorsed the check to the appellees as set forth in the margin ¹ and they in turn both endorsed the check which was cashed on or about September 7th. Mitchell further alleges that he agreed to pay to appellees the balance of the purchase price as soon as they executed and returned to him the written instrument covering the easement in question which he handed them. While awaiting the execution of the written easement and with the full knowledge and consent of the appellees, Mitchell then proceeded to bulldoze and grade along the proposed roadway, expending some $232 in the process. Thereafter the appellees refused to execute and deliver the proffered easement; and so Mitchell claimed damages in the amount of $2,000 for breach of contract.

The appellees answered, admitting the negotiations between the parties for an easement but denying that the easement was to be for a private roadway or exclusive in the plaintiff. The appellees affirmatively alleged that they executed and delivered to Mitchell a grant of easement conformable to the agreement of the parties, ² which the appellant retained but refused to accept [because it was not an exclusive easement]. By way of counterclaim the appellees demand $1,000 from Mitchell for damages he caused them by his road building operations through dumping dirt and debris on their land outside the boundaries of the easement right of way without their consent. Mitchell filed a reply to the counterclaim denying the allegations thereof except as to the bulldozing work on the roadway, which he reiterates was done at the suggestion and request of the appellees and in their presence.

On June 1, 1959, a pre-trial order was signed by the court and approved by the parties in which the contested issues of fact were defined and three contested issues of law set forth relating to the applicability of the Alaska Statute of Frauds to the facts pleaded. ³ The order declares that no amendments to the pleadings were requested or allowed. Later, on the same day, the appellees filed their motion for judgment on the pleadings. Written memoranda were hurriedly prepared and filed by both parties, and, on June 2nd, after considering the memoranda and oral arguments for and against the motion, the court found that the Statute of Frauds precluded Mitchell's claim for relief in damages and held that the motion should be granted. Nevertheless, the court agreed to hear counsel further on the issue raised by the appellant in oral argument, namely, that the appellees should return to him the $300 paid to them for an easement which he claimed was different from the one he bargained for and which he did not want. Oral arguments were resumed on the following day and the court then finalized the matter by declaring that Mitchell was not entitled to the return of his $300 because he had not set up in his complaint any claim for such relief.

Judgment for the appellees on the pleadings, together with their costs, was given on June 17, 1959, the court noting that the appellees had withdrawn their counterclaim. Mitchell has appealed to this court alleging error on the part of the trial court in depriving him of the opportunity to prove part performance in avoidance of the Statute of Frauds, and contending that there was a sufficient writing to take the case out of the Statute of Frauds and that he should at least have been allowed to recover the $300 in question. These points are all discussed in appellant's brief filed with us. The appellees filed no brief and failed to appear for oral argument, without any explanation whatever to this Court.

We are of the opinion that an easement for a roadway across the lands of the appellees constituted an interest in land and under the applicable provisions of the Alaska Statute of Frauds ⁴ could not be conveyed except by an instrument in writing. ⁵ Nor do we consider the writing on the endorsement of the check ⁶ to be a sufficient memorandum to satisfy the statute. Not only does the memorandum fail to describe any land across which an easement is to run but it gives not the slightest intimation that the easement was to be exclusive or for a private roadway. It has been held that an exclusive easement is an unusual interest in land, amounting lamost to a conveyance of the fee; and, therefore, no intention to convey such a complete interest can be imputed to the owner of the servient tenement in the absence of a clear indication of such an intention. ⁷

In the Alaska case of Weiss v. Girtz, ⁸ Judge Ritchie recognized the established rule which is employed in construing defective descriptions in memoranda for the sale of realty, namely, that extrinsic evidence may be received to show the application of the terms of the description given in the memorandum, but not to supply missing elements without which the description is hopelessly defective. Even though the appellees admit the making of an agreement for an easement across their lands, they specifically deny that they ever agreed to give an exclusive easement. This feature of exclusiveness we regard as a material element in the description contended for by the appellant, which is missing any may not be supplied by extrinsic evidence. ⁹

Because it is not too clear from appellant's brief exactly what errors he charges against the trial court, we had to examine carefully the entire record sent up to us. It appears that, after the lower court ruled that he was not entitled to prove damages for breach of a contract which came within the Statute of Frauds, he then insisted that all he wanted was the return of his $300 which he had paid on account to the appellees for an exclusive easement, and to be relieved from having to pay any costs of suit to the appellees. Yet in one part of his brief he now states:

'* * * Although it appears from the pleadings in this action that the parties may rely upon an agreement which may be within the statute of frauds, there is no certainty about it and the defense is not pleaded. * * * Since the court summarily ruled on the matter, the plaintiff was not allowed to show proof of part performance or any other exception to the statute of frauds except by way of one affidavit.'

Earlier in his brief, appellant had conceded that, while under Rule 8(c) of the Federal Rules of Civil Procedure, 28 U.S.C.A. ¹⁰ affirmative defenses such as the Statute of Frauds must be pleaded, the court under Fed.R.Civ.P. 12(c) may grant a motion for judgment on the pleadings and if matters outside the pleadings are presented the motion shall be treated as one for summary judgment under Fed.R.Civ.P. 56 and all parties must be given reasonable opportunity to present all matters pertinent to such motion.

The appellant is apparently trying to say that it was all right for the court to entertain appellees' motion for judgment on the pleadings, in effect a motion for summary judgment, after hearing matters at the pre-trial conference outside the pleadings relating to the defense of the Statute of Frauds, but that the appellant should then have been given an opportunity to show the existence in his case of some exception to the Statute of Frauds, such as part performance, which would have debarred the appellees from a judgment as a matter of law. We find no basis for such argument, because under Fed.R.Civ.P. 6(b) the appellant could have applied to the court for further time to prepare his resistance to the motion. As a matter of fact the record reveals that the court did grant both parties time to prepare themselves to argue the motion and both submitted written memoranda in support of their respective positions. The appellant even filed an affidavit with his memorandum in which he alleges that, after negotiations for the easement had taken place, he paid to the appellees $300 on the purchase price, expended $215.20 for material, equipment and labor in the construction of 400 feet of the 600 feet of roadway on the easement to be granted, and paid an attorney $10 to draft a written easement. There was no request of the court for enlargement of time in which to submit additional affidavits or other pertinent material.

It is a well established principle of law that the mere payment of the purchase price by the vendee, without other acts, is not sufficient as an act of part performance to take an oral contract for the sale of real estate out of the Statute of Frauds. ¹¹ Since the vendee can recover back the purchase money in an action at law, no fraud or injustice will result to him if the contract is not enforced. ¹² However, when...