Puma v. Gordon

• Decision Date: 01 April 1980
• Citation: 9 Mass.App.Ct. 489,402 N.E.2d 110
• Parties: Paul A. PUMA v. Louis E. GORDON.
• Court: Appeals Court of Massachusetts

Page 110

402 N.E.2d 110

9 Mass.App.Ct. 489

Paul A. PUMA v. Louis E. GORDON.

Appeals Court of Massachusetts, Worcester.

Argued Jan. 23, 1980.

Decided April 1, 1980.

Kevin M. Keating, Boston, for plaintiff.

Charles B. Swartwood, III, Worcester, for Thomas E. Barnicle and another, amici curiae.

Before HALE, C. J., and GRANT and NOLAN, JJ.

NOLAN, Justice.

Paul A. Puma, the plaintiff in one of two cases consolidated for trial, appeals from a judgment dismissing his action against Louis Gordon for specific performance of a purchase and sale agreement. That agreement concerned property to which Thomas and Gertrude Barnicle successfully asserted a similar claim for specific performance in the action which was consolidated with Puma's for trial. The basis of Puma's appeal is that various crucial findings made by the judge are unsupported by the evidence.

Upon careful review of the evidence adduced at trial, we are satisfied that, although contradictory in places and sketchy in others, the evidence supports the judge's findings.

We draw our facts from the judge's findings, which are binding upon us unless "clearly erroneous." New England Canteen Service, Inc. v. Ashley, 372 Mass. 671, 675, 363 N.E.2d 526 (1977).

On February 5, 1976, the owner of the locus (Gordon) listed it with Ross Fuller's Land Auction Agency (Fuller), giving Fuller power to sign contracts of sale and providing him a commission of ten percent. ¹ The "listing agreement" provided that Fuller could accept deposits and that if a sale should not close, Gordon would have no interest in the deposits and Fuller could dispose of them in accordance with any agreement he might make with the prospective purchaser. On closing, however, Fuller would earn a full commission.

On February 17, 1976, a purchase and sale agreement regarding the locus was entered into between Gordon and Mrs. Caroline Novack providing, inter alia, for a deposit of $3,800, another payment of $7,200, and a purchase money note and mortgage of $27,000. The total purchase price was $38,000.

The agreement required that the deed be a warranty deed; that the seller should give and the purchaser accept a title such as any law firm in the Commonwealth would accept and insure; that, in the event the seller should be unable to convey title in accordance with the terms of the agreement, the sole liability of the seller would be to refund the amount paid; that the deed should be delivered on receipt of payments at the office of Fuller on March 31, 1976; and that the agreement could not be changed or terminated orally.

Novack paid Fuller $3,800, and both parties signed the agreement. Subsequently, Gordon, through Fuller, retained an attorney (Norris) to check the title. The title report was not received before the original closing date of March 31, 1976, and the parties agreed to extend the date without specifying a new date for closing. On May 25, 1976, Norris issued his certificate of title, noting four encumbrances. ² Consequently, the parties again agreed to extend further the date for closing to permit removal of the encumbrances. No revised date for closing was specified.

Between May and December of 1976, little was accomplished by either party by way of agreeing upon a means to settle their differences regarding the condition and passing of title. Having become concerned with the delay, Gordon, on December 27, 1976, retained another attorney (Consigli) to clear the title. Gordon suggested a closing date of March 11, 1977, but Novack was yet not satisfied with the state of the title. Later in March of 1977, Consigli sent Fuller a proposed note, mortgage and escrow agreement for execution by Novack. They were never signed by her.

By May of 1977, Gordon was growing very impatient with the delays. In June, 1977, the title still not having been cleared, Fuller discussed with Gordon the possibility of granting some concessions to Novack in exchange for her accepting the defective title. Their proposals were not accepted by Novack.

On June 14, 1977, after numerous delays and after having his various proposals to negotiate an agreement by which title could be passed impliedly rejected, Gordon considered the deal with Novack dead and subsequently entered into an agreement with the Barnicles for the sale of the locus for $42,000, with no commission to be paid and with no provision for a purchase money mortgage. The agreement called for a quitclaim deed and contained a provision that the seller "could" use the purchase money to clear any encumbrances. Gordon did not advise Fuller, Consigli or Norris of this agreement. In July, 1977, Consigli sent Fuller and Norris a revised form of the deed, mortgage and note for use in connection with a sale to Novack. These were never executed by Novack or Gordon.

The trial judge inferred from all the evidence that by early September, 1977, Fuller realized that the Novack sale would not go through and sought to interest Puma in the purchase. Puma was not told of the title or other problems. On September 3, 1977, Fuller arranged for an assignment by Novack to Puma of all Novack's interests in the February 17, 1976, agreement with Gordon. Puma paid Novack $1,000 for the assignment. On September 9, Fuller edited the July, 1977, forms, changing the deed to September 9 and the name of the purchaser to Paul Puma, and had Puma sign the note, mortgage and escrow agreement. When Fuller told Gordon of Puma's interest, Gordon rejected the idea and told Fuller of the agreement with the Barnicles. On September 13, 1977, Fuller told Puma of the problem, encouraged him to sue Gordon, and agreed to share the expenses of the suit. ³ On September 15, 1977, the Barnicles, in accordance with their agreement with Gordon, appeared at the registry prepared and able to close, but Gordon did not attend.

Action was commenced by Puma on September 16, 1977. The Barnicles sued thereafter. The cases were consolidated for trial.

On all the evidence, the judge inferred that Novack was unwilling to accept a defective title in June, 1977, and was unwilling to accept the concession proposed by Fuller. The judge concluded that Gordon and Novack had effectively cancelled and rescinded ⁴ their agreement before Fuller orchestrated the assignment of Novack's interest therein to Puma. Consistent with this, the judge concluded that Gordon was free to contract with the Barnicles for the sale of the locus on June 14, 1977, and, therefore, allowed the Barnicles' claim for specific performance.

Puma's principal arguments are these: (1) there is no evidence supporting the judge's finding that Novack was unwilling to and did not accept Gordon's proposed concessions of June, 1977; (2) the only evidence supporting the conclusion that Gordon considered the agreement with Novack "dead" was the fact that he agreed, on June 14, 1977, to sell the same property to Barnicle (This fact, Puma argues, must be viewed in light of Gordon's failure to inform Consigli, Fuller, or Novack of the agreement with the Barnicles, as well as his failure to withdraw the written authority vested in Fuller to enter into agreements for the sale of the locus.); and (3) there is no evidence supporting the finding that "by early September, 1977, Fuller realized the Novack sale would not materialize, and he sought to interest Puma in the purchase."

As to arguments (1) and (3), we need only say that we have read the transcript carefully and that, giving the judge's assessment of the credibility of the witnesses its due, New England Canteen Service v. Ashley, 372 Mass. at 675, 363 N.E. 526, we are satisfied that the findings and the inferences he drew are supported by the evidence. Casey v. Gallagher, 326 Mass. 746, 96 N.E.2d 709 (1951).

Puma's second argument is two-pronged. First, he urges that there is insufficient evidence to support a finding, or a legal conclusion, that Gordon acted in such a way as to manifest an intent to rescind the contract with Novack, or, alternatively, that Gordon, because of his silence regarding the "new" agreement with the Barnicles, is estopped to disavow the agreement with Novack. Second, Puma argues that, in any event, Gordon did not withdraw Fuller's authority to enter into contracts for sale of the locus and was bound by Fuller's "apparent authority" to commit Gordon to Puma. See Restatement (Second) of Agency § 130 (1958). We shall treat Puma's arguments in the order in which they appear.

Puma argues that Gordon's contracting with the Barnicles, without...