Parkinson v. Roberts

• Decision Date: 16 September 1958
• Docket Number: No. 2789,2789
• Parties: Harry A. PARKINSON, Plaintiff and Respondent, v. Fred M. ROBERTS and Mildred A. Roberts, Defendants and Appellants.
• Court: Wyoming Supreme Court

Page 823

329 P.2d 823

78 Wyo. 478

Harry A. PARKINSON, Plaintiff and Respondent, v. Fred M. ROBERTS and Mildred A. Roberts, Defendants and Appellants.

No. 2789.

Supreme Court of Wyoming.

Sept. 16, 1958.

R. G. Diefenderfer, Sheridan, for appellants.

Henry A. Burgess and William D. Redle, and Austin T. Redle, Sheridan, for respondent.

Before BLUME, C. J., and HARNSBERGER and PARKER, JJ.

Mr. Justice PARKER delivered the opinion of the court.

This is a suit by a 'buyer' of real estate to recover from the 'seller' a down payment after the seller had allegedly refused to complete the transaction. The salient facts shown by the record are: On May 19, 1956, plaintiff, Harry A. Parkinson, signed a Standard Purchase Offer, Acceptance and Receipt, ¹ offering to buy some thirty-six acres of land for a total price of $32,500: $2,000, deposit; $7,400, cash upon delivery of acceptable warranty deed; balance, $23,100, installment note and mortgage. Defendants, Fred M. and Mildred A. Roberts, the owners of the property, accepted the offer, and D. L. Holcomb, Roberts' real estate agent, signed the instrument as having received the deposit from plaintiff. On June 4 Roberts took the abstract to his attorney, Schwartz, who delivered it to William Redle, an attorney, for examination on behalf of plaintiff. On June 5 Redle wrote a letter to plaintiff, approving title, and sent a carbon copy to Roberts, which copy was delivered June 6. That day the Parkinsons had some conversation with the Roberts about the $7,400. Roberts testified that the plaintiff told him they 'just couldn't raise the money and had no way of paying that money until they sold their house in town.' Plaintiff admitted this but said he had added the words, 'unless I went to the bank to borrow it.' Whatever the exact conversation was it is uncontroverted that Roberts refused to take plaintiff's house in trade and stated that he 'expected' his money. On June 8 Roberts had his attorney prepare a deed, note, and mortgage; and on June 9 he took them to his agent to conclude the sale. When the agent voiced the view what under paragraph two of the purchase offer the buyer had until the first day of July to pay the money, Roberts took the deed, note, and mortgage to Redle, demanding payment. Redle indicated that his authority was only to examine the title and said that he had to get in touch with plaintiff, then out of town. On the same day, Roberts offered his agent the commission on the down payment provided in the purchase offer, saying he considered the contract to be in default; but the agent refused to accept the money. On June 12 defendants' attorney sent a registered letter to plaintiff notifying him of the termination of said purchase offer by reason of failure 'to seasonably complete' its terms, and on June 13 plaintiff delivered to defendants' agent a cashier's check for $7,400 payable to the defendants. The agent discussed the matter with defendants' attorney and on June 14 contacted Roberts who refused the $7,400 payment and said that if plaintiff could pay him all cash he could complete the deal, otherwise not.

In essence the controversy arose over the different views of the date upon which the buyer was obligated to pay the $7,400. The defendants insist that when the deed was tendered by the sellers after title had been found merchantable the balance of down payment was due immediately and that nonpayment was a cause for termination of the contract and retention of the former down payment as liquidated damages. Plaintiff on the other hand contends that he had until July 1 to complete the down payment.

The trial court found generally for plaintiff and against defendants, entering judgment for the $2,000. From this judgment defendants have appealed, presenting nine specifications of error. These deal primarily with three points: (a) Plaintiff's petition was insufficient to constitute a cause of action and hence the introduction of evidence as well as the granting of a judgment was improper; (b) oral testimony regarding the circumstances surrounding the execution of the purchase offer was erroneously admitted because it permitted parol evidence to vary the terms of a written agreement, and (c) the judgment against defendants was contrary to the evidence and contrary to law.

On the first point, defendants prior to the trial objected to the introduction of any evidence because of the insufficiency of the petition. To the same purpose defendants after plaintiff had rested, and again at the conclusion of all testimony in the case, moved for judgment on the ground of insufficiency of the petition. The court ruled adversely in each instance, and these rulings are here presented as error--it being the view of the defendants that plaintiff had failed to allege any breach of duty by defendants upon which to predicate plaintiff's recovery. To that end defendants urge that the following allegation of plaintiff's petition is a conclusion of law, 'although the Plaintiff performed all the conditions upon his part to be kept and performed the Defendants did refuse to keep and perform all the conditions on their part * * *.' Similar criticism is applied to other allegations. Plaintiff insists that such statements in the petition are within the meaning of § 3-1413, W.C.S.1945, which reads as follows:

'In pleading the performance of conditions precedent in a contract, it shall be sufficient to state that the party duly performed all the conditions on his part; and if such allegation be controverted, the party pleading must establish, on the trial, the facts showing such performance.'

Defendants in their argument make no reference to our statute but cite general authorities which condemn pleadings relying upon allegations by legal conclusion. Such general statements, are, of course, to be considered controlling only when there is no applicable statute; and accordingly, we review the pleadings here to have the situation in mind. Plaintiff's allegation that he 'performed all the conditions' was positive and without qualification. True, he did not use the word 'duly' provided by the statute, which some courts in the past have held to be requisite. It was, however, a much stronger statement than if the word 'substantially' had been used as in the case of Lusk Lumber Co. v. Independent Producers Consolidated, 35 Wyo. 381, 249 P. 790; Id., 36 Wyo. 34, 252 P. 1029. In the light of the relaxation of pleading rules obviating technical niceties, we think a positive pleading of performance meets the conditions which were intended to be imposed when the statute was passed; and plaintiff was, therefore, not obligated to plead the details of his performance.

There is a further reason why the defendants should not be heard to complain at any deficiency in the petition because of an improper allegation of performance: Where a defendant has repudiated the contract in issue, an allegation of performance by the plaintiff is unnecessary. See Hanby v. Campbell, 222 Ala. 420, 132 So. 893; Waller v. Welch, 154 Va. 652, 153 S.E. 722; 17 C.J.S. Contracts § 538; and 13 C.J. 725-727. The word 'repudiate' among other definitions means 'to deny the validity * * * of.' ² This is in essence the meaning often recognized by courts when they have discussed refusal to perform, rejection, disclaimer, abandonment, and the like. See Jordon v. Madsen, 69 Utah 112, 252 P. 570; and In re S. M. Goldberg Enterprises, Inc., 130 Misc. 887, 225 N.Y.S. 513. In Smith v. Gorsuch, 36 Wyo. 430, 434, 256 P. 664, 665, we said, 'If the acts of the defendant showed that the renounced the contract and did not consider himself bound by it, plaintiff had the right to treat the contract as at an end.' And see Boswell v. First Nat. Bank of Laramie, 16 Wyo. 161, 92 P. 624, 93 P. 661. In the present case, defendants said that for good cause they had elected to terminate the purchase offer and no longer had any obligation under it. Plaintiff's petition by a reasonable interpretation leaves little doubt that he intended to allege repudiation on the part of the defendants. It would not be either equitable or in accordance with good pleading principles to require him to plead performance when defendants had insisted that performance was not possible.

We turn then to a consideration of the court's rulings which admitted testimony of conversations occurring between the contracting parties prior to the execution of the purchase offer to the effect that Parkinson had to sell his house to raise $7,400 and that he was to have until July 1 to complete the transaction. Defendants urge the well-recognized rule that the terms of a written agreement cannot be altered by parol testimony, citing North American. Uranium, Inc., v. Johnston, Wyo., 316 P.2d 325. This rule--correct, although quite broadly stated--is subject to the limitation ³ that oral statements made previous to the time of the execution of a written instrument may in exceptional cases be shown as part of the surrounding facts if they do not contradict or vary...