Sawin v. Carr

• Decision Date: 19 July 1974
• Docket Number: No. 6744,6744
• Citation: 323 A.2d 924,114 N.H. 462
• Parties: David SAWIN et al. v. Hazel M. CARR et al.
• Court: New Hampshire Supreme Court

Page 924

323 A.2d 924

114 N.H. 462

David SAWIN et al. v. Hazel M. CARR et al.

No. 6744.

Supreme Court of New Hampshire.

July 19, 1974.

McLane, Graf, Greene & Brown and John A. Graf and Grenville Clark, III, Manchester, (Graf orally), for plaintiffs.

Alexander J. Kalinski, Manchester, for defendant Hazel M. Carr.

Peter McDonough, Manchester, for defendant Edward Bennett.

PER CURIAM.

This is a bill in equity for specific performance and injunctive relief on behalf of David and Marcia Sawin against Hazel M. Carr and Edward Bennett in which plaintiffs allege that Mrs. Carr orally agreed to convey to them certain real property in Manchester, that in reliance upon the promise, they moved onto the property making valuable improvements, but that Mrs. Carr subsequently sold the property to defendant Edward Bennett, thereby working a fraud upon them.

Trial by a Master (Chester C. Eaton, Esq.) with a view resulted in judgment for the plaintiffs. During the trial defendants seasonably excepted to the denial of their motions for nonsuit and for a directed verdict. The Trial Court Loughlin, J., approved the master's report and reserved and transferred defendants' exceptions to rulings by the master including the denial of their motions for nonsuits and directed verdicts and to set the master's report aside.

In the fall of 1966, plaintiffs entered into an agreement with Mrs. Carr to occupy and repair the property in question located at 35 Corning Road, Manchester. At the time of the agreement the premises were in such disrepair as to be uninhabitable. Plaintiffs occupied the premises from the summer of 1967 until May 21, 1971, when Mrs. Carr sold the property to defendant Bennett. During the period of their occupation, the plaintiffs made substantial repairs to the premises and made periodic payments at the rate initially of $25 per month which they increased to $50 per month for a total of $1,835. Mrs. Carr gave receipts for all payments made by the plaintiffs which recited they were 'to apply towards purchase of the property.' On May 21, 1971, Mrs. Carr sold the property to defendant Bennett without any prior notice to plaintiffs of her intention to do so. Subsequent to the sale to Bennett, Mrs. Carr accepted two more payments from the plaintiffs, again writing on the receipts 'to apply towards the purchase of the property.'

The defendants filed separate briefs but their claims are similar except for defendant Bennett's argument that the master erred in not finding him to be a bona fide purchaser for value. Rogers v. Jones, 8 N.H. 264 (1836), relied upon by Bennett for the argument that the occupation of the premises by the Sawins did not require him to inquire as to their interest in the property does not support defendant Bennett's position. Holding that possession may be prima facie evidence of title and sufficient notice to put a third party on inquiry the case went on to hold that it 'is by no means conclusive evidence of the existence of a title in the party in possession.' Id. at 270-271. Bennett failed to make an inquiry prior to purchase although a full inquiry would have disclosed that the Sawins had a valid claim to the property, whereas in the Rogers case a full inquiry would not have disclosed any such valid claim. Where there is reason for a party to inquire, neglect to do so is at his peril, 'and he is in such cases chargeable, constructively, with notice of what he might have learned on examination'. Id. at 266; see also Pratte v. Balatsos, 101 N.H. 48, 50, 132 A.2d 142, 144 (1957).

In addition to Bennett's knowledge of the Sawins' possession of the property other testimony in the case supported the master's finding that Bennett knew or should have known that plaintiffs and Mrs. Carr 'had some agreement for the purchase of the property.' Mrs. Carr testified that she told Mr. Bennett that if she decided to sell the property and the Sawins wanted to purchase it, it was theirs. His denial of her testimony did not compel a finding in his favor, but merely created a conflict in the testimony that was for the trier of fact to resolve. Plimpton v. Theos, 113 N.H. 651, 652, 312 A.2d 686, 687 (1973); Guy v. Hanley, 111 N.H. 73, 276 A.2d 1 (1971); Kalman v. Hutcheson, 111 N.H. 36, 40, 276 A.2d 260, 263 (1971).

Defendants claim that the agreement between plaintiffs and Mrs. Carr was too indefinite as to time and price to support a decree of specific performance. There was evidence that the parties agreed on a purchase price of $8,500 plus a down payment and that the Sawins' efforts in restoring the property were to act as the down payment. There was also testimony in support of the master's finding that the sale was to be consummated when the Sawins had paid one-third of the purchase price. While it is true that contracts, both oral and written must be definite in order to be enforceable, the standard of definiteness is one of reasonable certainty and not 'pristine preciseness.' Grayson v. LaBranche, 107 N.H. 504, 505, 225 A.2d 922, 923 (1967); White v. Poole, 74 N.H. 71, 73, 65 A. 255, 257 (1906). The fact that a specific calendar date is not established for time of performance or that the purchase price involves the performance of work tasks by the purchasing party is not fatal to specific performance. 'While the court cannot make a contract for the parties, this does not prevent it from ascertaining from all the evidence whether the parties made a binding agreement and what it was in spite of some ambiguity arising from a term that is missing or left...