Shaw v. Ferguson, 64548
| Decision Date | 20 May 1986 |
| Docket Number | No. 4,No. 64548,64548,4 |
| Citation | 767 P.2d 1358,1986 OK CIV APP 10 |
| Parties | 1986 OK CIV APP 10 Sidney C. SHAW, Appellee, v. Ronald G. FERGUSON and Ron Willis, d/b/a Willis & Associates, Appellants. . Court of Appeals of Oklahoma, Division |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
Appeal from the District Court of Payne County; Ray Lee Wall, Trial judge.
Action by seller of real estate to recover earnest money deposit as liquidated damage for alleged breach of purchase contract. Buyer counterclaims for specific performance. Judgment for plaintiff. Defendant appeals.
VACATED AND REMANDED WITH INSTRUCTIONS.
William J. Baker, Hert, Baker & Kistler, Stillwater, for appellee.
David S. Eldridge, Oklahoma City, for appellant Ronald G. Ferguson.
The issues in this appeal arise from a failure to finalize and close a sale of some Payne County land. The trial court concluded such failure was defendant's fault in not tendering the purchase price and awarded the plaintiff seller a judgment for $10,000--the amount of liquidated damages called for in the sales agreement--and $2,000 more for his attorney fee expense. Defendant buyer's counterclaim for specific performance was not adjudicated. Defendant appeals.
The significant background facts are these. On October 31, 1984, a real estate contract of sale was finalized between the plaintiff seller, Sidney C. Shaw, and the defendant buyer, Ronald G. Ferguson. The subject of the sale was some unimproved land near Stillwater, Oklahoma, and the agreed price was $212,000. The contract called for the buyer to place $10,000 earnest money in escrow with defendant Ron Willis and pay the balance at time of closing. The further agreement was that the seller would pay a real estate commission of $12,000 to Willis and that closing was to take place "5 days after notice of Buyer to Seller but not later than 30 days after receipt of abstract" unless requirements were made within 15 days in which event seller would have 30 days to correct any curable defect unless a longer time was agreed to. And finally, a default clause specified that
This action was filed by Shaw on January 23, 1985, seeking an order directing Willis to pay the $10,000 into court and granting plaintiff a judgment for that amount against defendant Ferguson along with an additional sum for his attorney fee.
Defendant Ferguson filed an answer denying he had defaulted or breached any term of the purchase contract and counterclaimed for specific enforcement of the contract together with a judgment against Shaw for costs, attorney fee and other litigation expenses as provided for in paragraph 8(c) of the contract.
The case was tried to the court on May 30, 1985. The principal issue of fact centered around a closing date--whether the parties had orally agreed to close on January 11, 1985.
There are certain gaps in the evidence which, while perhaps not omissions of essential evidence, do concern circumstances which could be helpful in determining the true facts and where the equities lie. For instance the record does not disclose when the required abstract was furnished to the defendant buyer, what title requirements were made by the buyer, or how long it took the seller to satisfy them. In other words there is no evidence in the record as to when the "contractual" closing date was. The closing date controversy which precipitated this lawsuit centers not on the terms or breach of the written agreement but around a second oral closing date agreement.
The first closing date was evidently set sometime around December 21, 1984, because it was on that date that the seller agreed to postpone the closing if the buyer would pay some interest. Buyer agreed and gave seller a check for $1498.98 which recited, "Interest--closing delay $71.38 per diem." 1 The parties agree this check provided interest to January 3, 1985, with an agreed closure on January 4, 1985.
Before this first post-contractual date arrived, however, a second one was discussed and the facts concerning it are a little less distinct. Both parties say they were ready, able and willing to close on January 4 in Oklahoma City, but neither showed up at the agreed time and place. Defendant said he did not appear because on January 2 he talked with Barden Kellum, an employee of plaintiff who was taking "care of the details ... the legwork, to get the closing arranged," and requested the closing be postponed a week.
"I told him [Kellum] I had some pressing family obligations and asked him if we could make it the following week, Friday, the 11th ... of January," defendant said.
Shaw, on the other hand, said he did not show up because he had "heard" Ferguson was not going to be at the rendezvous.
Ferguson in the meantime wrote a check dated January 3, 1985, payable to Sidney Shaw in the sum of $499.66 and mailed it to Shaw. Defendant did not hear back from Kellum or anyone else on or before the 4th, although he was in town until the latter part of the week. He received word about 4:30 in the afternoon on the 4th from Ron Willis that Shaw "was very angry and ... he was not going to close the deal at all."
A few days later Shaw began to demand the $10,000 earnest money and Ferguson insisted on closing the transaction. This lawsuit was filed by Shaw on January 23, 1985, against Ferguson and Ron Willis, the escrow agent, to recover the $10,000 earnest money. 2
Plaintiff's version of what happened on January 2 differs to some extent. Shaw admitted he had agreed to some closing date changes. "I did not do the negotiations," he said, This, in substance, was the extent of his testimony on the subject. He did not say anything specifically about the January 2 request.
Kellum did, however. After stating that his duties consisted of "the legwork," and getting "everything ready to close and make contacts with the party to arrange for closing and set the deal up ...," he said he took "care of the various requirements" so he could close on January 4.
Kellum's testimony concerning why the deal was not consummated on that date was this: "To the best of my knowledge," he said, The reason for his "feeling" was a conversation he said he had with Ferguson on the morning of January 2. Instead, Kellum said he told Ferguson,
"If Mr. Shaw were to grant an extension, would you be willing to pay interest?" Kellum said he asked.
"Yes," said defendant Ferguson.
Evidently to escape the import of having received the second interest check Kellum testified he told Ferguson not to "send me any money until I talk to Mr. Shaw and I will get back to you."
Kellum said he talked to Shaw around noon. The agent, however, did not reveal the nature of that conversation or the result of it, but said only that after talking to Shaw he tried to reach Ferguson on January 2 and 3 but was unable to. He admits receiving the second check but held it and later gave it to Shaw's attorney who returned it to defendant in a letter making a demand on him for the $10,000 earnest money because of having "breached the terms of that contract by your failure and refusal to close the transaction within thirty (30) days after receipt of the abstract and ... the additional period of time which was granted to you by oral agreement."
The transcript of testimony does not disclose a pronouncement of judgment from the bench but the following was signed by the judge and filed May 30, 1985:
STATEMENT OF FACTS AND CONCLUSIONS OF LAW
1. No written amendment to extend the time of closing was signed by the parties.
2. The receipt of the check in the amount of $1498.98 on December 21st operated to extend the closing up through January 3, 1985.
3. There was no verbal agreement or checks or any other evidence indicating that closing was to be extended beyond January 4, 1985.
4. The plaintiff was ready, willing and able to perform. The defendant never tendered the purchase price.
5. The contract was prepared by the defendant's agent.
6. The plaintiff never requested that the closing date be extended.
Judgment for the plaintiff in the amount of $10,000.00, and attorney fee in the amount of $2000.00.
DATED this 30th day of May, 1985.
/s/ Ray Lee Wall
3
Defendant appeals asserting that it was error to (1) award plaintiff a judgment for...
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