Ravarino v. Price

• Decision Date: 29 July 1953
• Docket Number: No. 7882,7882
• Citation: 260 P.2d 570,123 Utah 559
• Parties: RAVARINO, v. PRICE et al.
• Court: Utah Supreme Court

Page 570

260 P.2d 570

123 Utah 559

RAVARINO, v. PRICE et al.

No. 7882.

Supreme Court of Utah.

July 29, 1953.

Mulliner, Prince & Mulliner, Salt Lake City, Edward L. Mulliner, H. L. Mulliner and J. R. Mulliner, Salt Lake City, for appellants.

Wilford M. Burton, Salt Lake City, for respondent.

WOLFE, Chief Justice.

Action by the plaintiff, Angelo Ravarino, against the defendants, Harry Price, Jr., Mrs. Harry Price, Jr., his wife, and Mrs. Marcus Parr, his sister, to compel the conveyance to him of two tracts of real estate owned by defendants at 225 and 235 West Fifth South in Salt Lake City, Utah. The lower court found the facts substantially as alleged in the complaint and decreed specific performance. Giving the plaintiff the benefit of all inferences and intendments arising in his favor from the evidence, the facts may be summarized as follows:

Mr. Price and Mrs. Parr are the owners of the above mentioned property, each owning an undivided one-half interest as tenants in common. During the course of preliminary negotiations, Mr. Price, in May of 1950, executed a listing agreement for the sale of the property with one Lewis F. Hansen, a real estate broker; several months later Mr. Hansen submitted to Mr. Price a written offer by plaintiff for the purchase of the property for $18,000. Mr. Price discussed the offer with his wife who rejected it, expressing a reluctance to sell unless other income property could be found in which the proceeds of the sale could be invested.

Subsequently, Hansen submitted an 'Earnest Money Receipt and Agreement' to Mrs. Price and Mrs. Parr providing for the sale to plaintiff of the property belonging to defendants for the purchase price of $19,000. Mrs. Price and Mrs. Parr on or about September 21, 1950, signed this agreement, which is in words and figures as follows:

'Earnest Money Receipt And Agreement

Salt Lake City, Utah, 9/21/1950

Received From A. Ravarino the sum of $1000.00 Dollars to secure and apply on the purchase of the following described property:

1--Lot 165 X 165 at 235 W. 5th So. For the purchase price of $19000.00 Dollars.

The balance of the purchase price shall be paid as follows: $18,000.00 upon furnishing good and marketable title. Interest at 5% per annum on the unpaid portions of the purchase price to be included in the prescribed payments and possession given IMM. [immediately] or before 60 days.

Property taxes for the current year shall be adjusted on pro-rata calendar basis, seller to pay for period from January 1st to date of closing, purchaser from date of closing to December 31st. Rents, insurance, interest, water and other expenses of said property shall be pro-rated as of date of closing.

No exceptions.

Contract of sale or instrument of conveyance to be made on the approved form of the Salt Lake Real Estate Board in the name of Angelo Ravarino. The following items are included in the purchase price and are to remain with the property: Present buildings. This payment is made subject to the approval of the Seller and unless so approved within 10 days from date hereof, the return of the money herein receipted shall cancel this sale without damage to the undersigned.

In the event the purchaser shall fail to pay the balance of said purchase price or complete said purchase as herein provided, the amounts paid hereon shall, at the option of the Seller, be retained as liquidated and agreed damages.

It is understood and agreed that the terms written in this receipt constitute the entire Preliminary Contract between the Buyer and Seller and that no verbal statements made by a representative of the Agent relative to this transaction shall be construed to be a part of this transaction unless incorporated in writing herein. it is further agreed that the execution of final transfer papers abrogate this Earnest Money Receipt.

The Seller agrees in consideration of the efforts of the agent in procuring a purchaser to pay said agent the rate of commission as established by the Salt Lake Real Estate Board.

Hansen Realty Co. Agent

by L. F. Hansen

We do hereby agree to carry out and fulfill the terms and conditions on the above receipts specified, the seller agreeing to furnish a good marketable title with abstract to date, or policy of title insurance at the option of the seller and to make final conveyance by sufficient deed. If either party fails so to do, he agrees to pay the expenses of enforcing this agreement, including a reasonable attorney's fee.

Mrs. Harry Price

________

Mrs. Marcus Parr

Seller

Angelo Ravarino

Purchaser

Approved Salt Lake Real Estate Board'

The lower court found that Mr. Price was advised of this transaction; that he stated it was acceptable to him and he approved the terms; and that the signatures of the women were not conditional upon Mr. Price signing subsequently.

The parties recognized that the transaction could not be consummated until the signature of Mr. Price was obtained. In the course of frequent solicitations by Hansen, Price manifested his intention to sign. One particular telephone call by Hansen to Price plays an important part in this action. The plaintiff was anxious to purchase a small strip of land bordering the defendants' propertly belonging to one Terry, which strip was to be utilized as a railroad spur, in connection with the Price property. Before purchasing this 'Terry Strip,' plaintiff wanted full assurance that Mr. Price would complete the sale of defendants' property in compliance with his oral promise. Mr. Hansen, therefore, called Mr. Price, and according to the testimony of Hansen, the following conversation ensued:

'Answer: [by Hansen] Yes, I called Harry [Price] and I said: 'Now it looks like everything it okey and I just want to be sure there won't be any backing out, because I don't want to close the deal on the Terry property. * * *'

'I told Harry that, and then after the first part of September, or the last part of September, I told him we were ready to close that now. * * *

* * *

* * *

'I said: 'If there is no objections I will go ahead and close it.' [The Terry deal]

'He said: 'That is fine, go ahead.'

'I said: 'I want to be sure because if Ravarino has that it will be like a goat farm, because he won't have any right-of-way to it.'

'So he assured me it was all right and we closed it right close to that date, I think October 5th is when we made the deed [to the Terry property].'

As indicated by the last line of the testimony, on October 5, 1950, the plaintiff purchased the 'Terry Strip' for $1,796.00 in reliance on the oral promise of Mr. Price that he would sign the Earnest Money Receipt providing for the sale of defendants' property to plaintiff. It is established that the use of the 'Terry Strip' is extremely limited without possession of the defendants' property.

For several weeks after the purchase of the 'Terry Strip' by Ravarino, attempts were made to obtain the signature of Mr. Price on the Earnest Money Receipt who consistently reiterated his intention to sign it. Ultimately, Mr. Price refused to execute the warranty deed submitted to him and refused to accept the purchase price of $19,000 which was tendered. He reportedly had discovered that the property was 'hot.'

In their original and amended answers defendants denied many of the facts set forth above. It is unnecessary for us to resolve the controversies with respect to the facts but it may be noted that a review of the entire record reveals some evidence in support of the propositions that: (1) the Earnest Money Receipt was not the intended agreement, but rather the true agreement was a trade rather than a sale, and as such did not pass the stage of oral negotiations; (2) the promise by Mr. Price that he would sign concerned only the contemplated trade rather than the sale; and, (3) the Earnest Money Receipt relied on as the agreement was not filled in when signed by Mrs. Price and Mr. Parr. We do not mean to infer that the findings of the trial court are not supported by competent evidence; we express no opinion on that point, it being unnecessary to do so to reach our decision.

In bar of the plaintiff's claims for specific performance, defendants pleaded the statute of frauds. Implicit in the Conclusions of Law of the lower court is that Price is precluded from asserting the statute. The implication seemingly rests on the principle of estoppel--estoppel in pais. The facts on which estoppel in pais are said by plaintiff to rest are as follows:

That the 'Terry Strip' was purchased in reliance on the oral representations of Mr. Price that he would sign the Earnest Money Receipt, and plaintiff has been defrauded because (1) that strip is allegedly worthless without title to defendants' land, (2) real estate commissions and taxes have been expended on the 'Terry Strip,' (3) during the intervening months prior to and during this law suit he has lost the use of the $19,000 purchase price for defendants' property, and (4) he has lost the benefit of the bargain. Plaintiff asserts that since he has been defrauded, the doctrine of estoppel in pais should apply.

Defendant maintains that when the legislature stated that courts have the power to take oral agreements out of the statute of frauds and compel specific performance 'in case of part performance thereof', Utah Code Ann.1953, 25-5-8, the mandate is clear that the doctrine which may be utilized to remove the bar of the statute upon oral agreements to convey realty is part performance and not estoppel.

We think it unnecessary to spend time over the semantic aspects of the problem. Both 'estoppel in pais' and 'part performance' (really itself a species of estoppel) have their roots in fraud. ¹

Generally, the doctrine of equitable estoppel is applicable only when a misrepresentation is made as to past or present facts; however, an exception is recognized when a misrepresentation as to the future operates as an abandonment of an existing right on the part of the party...