New England Educational Training Service, Inc. v. Silver Street Partnership

• Decision Date: 07 June 1991
• Docket Number: No. 88-513,88-513
• Parties: NEW ENGLAND EDUCATIONAL TRAINING SERVICE, INC. and John S. Burgess v. SILVER STREET PARTNERSHIP and The National Mortgage Company.
• Court: Vermont Supreme Court

Page 1341

595 A.2d 1341

156 Vt. 604

NEW ENGLAND EDUCATIONAL TRAINING SERVICE, INC. and John S. Burgess v. SILVER STREET PARTNERSHIP and The National Mortgage Company.

No. 88-513.

Supreme Court of Vermont.

June 7, 1991.

Thomas F. Heilmann of Thomas F. Heilmann & Associates, Burlington, for plaintiffs-appellants.

Peter W. Hall of Abell, Kenlan, Schwiebert & Hall, Rutland, for defendant-appellee.

PRESENT: ALLEN, C.J., PECK, DOOLEY and MORSE, JJ., and MARTIN, Superior Judge, Specially Assigned.

DOOLEY, Justice.

Plaintiffs New England Educational Training Service Corporation (NEETS) and John Burgess appeal from the trial court's dismissal of their mortgage foreclosure action. We affirm.

Although the facts behind this dispute are somewhat complicated, we can reduce them to their essentials as follows. The property involved in the foreclosure is located on Silver Street in Bennington ("the Silver Street property") and is apparently owned by defendant Silver Street Partnership, pursuant to a quitclaim deed from defendant Snowfall, Inc. How these parties acquired the property is irrelevant. It is only relevant that the property was once owned by James Donahue (Donahue) and that he gave a mortgage deed on the property to plaintiffs.

The center of the dispute is a different piece of property, the former facilities of Mark Hopkins College ("the college property"). The college property was the subject of a foreclosure action by Vermont National Bank. Through a complex series of transactions connected with the failure of this college, title to this property came into the hands of John S. Burgess, a trustee, treasurer, and attorney for the college. NEETS, a creditor of the college, also had an interest in the property. They attempted to sell the property to Donahue, apparently with the understanding that he would take over the operation of the college and put it back on its feet. Donahue proved to be a reluctant purchaser. Although he would sign purchase and sales agreements, he would not go through with them. It is Donahue's failure to go through with the purchase of the college property that gives rise to this action.

The initial purchase agreement was dated December 31, 1976. Donahue agreed to buy the property from plaintiff NEETS and pay $4,000 for a down payment, $50,000 in escrow, and $110,000 on closing. The agreement provided for a March 3, 1977 closing, and was contingent upon NEETS acquiring title to the premises through the then-pending foreclosure proceedings. Section C(4) of the agreement contained the following language: "[i]n the event BUYER shall fail to pay the balance of the purchase price or complete said purchase as herein provided, all amounts paid hereinunder shall, at the option of NEETS, be retained as liquidated damages." Donahue failed to complete the purchase. On March 19, 1977, the agreement was extended for thirty days, but Donahue again failed to complete the purchase.

On July 5, 1977, with both NEETS and Burgess involved, the agreement to purchase was extended by another thirty days. The extension agreement provided that the terms of the December 31 contract would remain in force. Donahue concurrently executed a mortgage deed covering the Silver Street property to NEETS and Burgess. The mortgage deed stated that Donahue had received $160,000 from NEETS and Burgess as consideration for the conveyance and that the property was conveyed free of encumbrances except for a first mortgage to a prior owner. According to its terms, the deed secured a promissory note for $160,000 to plaintiffs. Donahue executed such a promissory note, payable thirty days later. Neither the mortgage deed nor note indicated that these instruments were intended to secure Donahue's performance on the purchase and sale agreement for the college property. It is undisputed, however, that Donahue never received $160,000 from plaintiffs.

The mortgage was recorded on July 6, 1977, in the Town of Bennington land records. Donahue again failed to purchase the college property and, hence, never made payments on the mortgage note. Burgess eventually sold the property to another party for $220,000.

On September 6, 1984, plaintiffs brought this action to foreclose their mortgage on the Silver Street property. On September 18, 1984, defendants brought suit against their predecessor in title, Donald and Gloria Humphreys, for breach of warranty of title, and against plaintiffs for their failure to discharge the mortgage. The Humphreys cross-claimed against plaintiffs for failure to discharge the mortgage and mortgage note, alleging that plaintiffs had received full payment for the indebtedness that the mortgage purportedly secured. ^* These actions were consolidated on March 29, 1985.

Following an appeal and remand on issues unrelated to the present appeal, New England Educational Training Service, Inc. v. Silver Street Partnership, 148 Vt. 99, 528 A.2d 1117 (1987), the case was tried by court on August 10th through 12th, 1988. Plaintiffs advanced two theories of recovery. First, they claimed that since Donahue made no payment on the $160,000 mortgage note, the mortgage was in default and plaintiffs were entitled to foreclosure as a matter of law. Alternatively, they claimed that they were entitled to foreclose because, on the underlying purchase and sale agreement, $160,000 was due as liquidated damages, a sum which was secured by the mortgage note and deed.

The trial court granted judgment for defendants at the close of plaintiffs' case and made oral findings and conclusions on the record. In a September 8, 1988 judgment order, the court declared the mortgage "of no force and effect." Plaintiffs appeal from that order, arguing that: (1) since the mortgage deed and note were unambiguous, the court improperly considered parol evidence in determining the effect of the documents; (2) the trial court erred in making certain factual findings; and (3) the trial court erred in granting the motion for dismissal and in discharging a valid, enforceable mortgage.

I.

Plaintiffs' first argument is that the trial court improperly considered parol evidence in determining the enforceability of the mortgage deed and note. Plaintiffs contend that absent a finding that the deed and mortgage were ambiguous, the court was not permitted to consider evidence of an underlying agreement between plaintiffs and defendant. The trial court relied on various items of evidence that would be excluded under plaintiffs' parol evidence argument, including the purchase and sale agreement, the extension of the time for closing which was signed contemporaneously with the note and mortgage, testimony that Donahue never received the $160,000, and Burgess's testimony that the mortgage would have been cancelled if Donahue had purchased the college property.

The parol evidence rule is applicable to exclude evidence of a prior or contemporaneous oral agreement offered to vary or contradict the terms of a written agreement. Tilley v. Green Mountain Power Corp., 156 Vt. 91, ----, 587 A.2d 412, 414 (1991); Big G Corp. v. Henry, 148 Vt. 589, 592-93, 536 A.2d 559, 560-61 (1987). For a number of interrelated reasons, it is not applicable here.

First, the only part of the mortgage or note that was contradicted by the court's finding was the statement in the deed that Donahue had received $160,000 from the plaintiffs. A statement of consideration is not a term of any agreement; hence, the parol evidence rule does not preclude evidence that the statement of consideration is inaccurate. See Citizens Sav. Bank & Trust Co. v. Paradis & Sons, Ltd., 102 Vt. 114, 118, 146 A. 3, 4 (1929); White v. Miller, 22 Vt. 380, 384 (1850).

Second, although the parol evidence rule is applicable to a mortgage or note, these instruments are employed for special purposes. The primary purpose of the mortgage is to give the creditor a security interest in the property based on a specific promise to pay contained in the note. The note, in turn, is drafted to be a negotiable instrument. These special-purpose documents seldom embody a complete statement of the agreement between the parties. See 3 A. Corbin, Corbin on Contracts § 587 (1960). In the terminology of the Restatement of Contracts, they form only a partially integrated agreement. See Restatement (Second) of Contracts § 210(2) (1981). The court could look beyond these documents to determine the complete agreement of the parties. Thus, it was proper for the court to consider the purchase and sale agreement and its extensions, as well as the surrounding circumstances of the parties.

Third, the evidence was not used in this case to contradict or vary the terms of the instruments. Although the trial court found from the evidence that the note and mortgage did not represent the true agreement of the parties, its conclusion was that they could not be enforced because they were inequitable or unconscionable. This use of parol evidence is similar to what we have authorized in the past. For example, we have authorized the use of parol evidence to determine whether there had been any consideration for a mortgage. See Quazzo v. Quazzo, 136 Vt. 107, 110, 386 A.2d 638, 640 (1978) ("great latitude" granted with respect to evidence offered in mortgage foreclosure case to show lack of consideration); Ladam v. Squires, 127 Vt. 95, 97, 241 A.2d 58, 59 (1968) (parol evidence rule does not preclude proof of lack of consideration as between original parties to an agreement). In addition, we have authorized admission of such evidence to ascertain the true character and purpose of the mortgage, rather than to vary the terms contained within the instrument. See Wells v. Foss, 81 Vt. 15, 17, 69 A. 155, 155 (1908) (parol evidence admissible to show that mortgage and note were actually intended to secure prior debt rather than other consideration recited in the instruments; "Its tendency was to show the true character of the mortgage, and it was...