Zanone v. Tashgian

• Decision Date: 08 October 1929
• Citation: 21 S.W.2d 825,231 Ky. 454
• Parties: ZANONE v. TASHGIAN.
• Court: Kentucky Court of Appeals

21 S.W.2d 825

231 Ky. 454

ZANONE v. TASHGIAN.

Court of Appeals of Kentucky

October 8, 1929

Rehearing Denied Dec. 17, 1929.

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Fourth Division.

Action by James M. Zanone against Herbert Tashgian. Judgment for plaintiff for part of amount claimed, and plaintiff appeals. Reversed.

W. S Heidenberg, of Louisville, for appellant.

David R. Castleman, of Louisville, for appellee.

WILLIS J.

James M. Zanone sued Herbert Tashgian to recover the sum of $4,500 with interest thereon at the rate of 6 per cent. per annum from the dates various payments were made to him as a part of the consideration for real property, and for the further sum of $1,000, with interest, which, it was alleged, defendant had agreed to give plaintiff. The defendant denied the allegations of the petition, and in a second paragraph pleaded that the payments were made monthly under a rental contract, except an item of $2,000, which had been deposited with defendant, but repaid upon demand of plaintiff.

The basis of the cause of action was a verbal contract respecting real estate, and the defense was that it was only a contract of renting. The court found that the plaintiff was entitled to recover the payments made, subject to a reasonable rental for the property, which was not over $60 a month, since defendant claimed that as the agreed amount. In balancing the accounts, the court found that defendant owed plaintiff $34, and directed a verdict accordingly. On this appeal it is urged on behalf of Zanone that the court erred (1) in refusing a recovery of the $1,000, or any part thereof; and (2) in peremptorily instructing the jury to find for appellant only $34, thus refusing to require the defendant to account for all the payments, without deduction for rental, until there had been a denial by defendant of plaintiff's right, or a renunciation of the contract.

1. It was alleged in the petition that defendant agreed to make a gift to plaintiff of the remaining indebtedness of $1,000, and would not charge interest. The court upon motion struck the allegation from the petition. The contract was one concerning land, and for that reason could not be enforced, apart from any consideration as to the executory nature of the agreement to give. Graf v. Graf, 150 Ky. 226, 150 S.W. 58, Ann. Cas. 1914C, 1138. The rights of plaintiff are not affected by the ruling of the court respecting this item, as will appear later in the opinion. In so far as it plays any part in the case, it was unnecessary to plead it. It was nothing but a part of the agreed consideration for the land, as plaintiff claimed, and could not be the basis of a recovery, since the contract could not be enforced.

2. The parties disagree radically as to the facts. The plaintiff testified that he deposited $2,000 with the defendant in February, 1923, under a verbal contract with the defendant whereby the latter was to acquire a lot and build a house, and plaintiff, with his mother, was to live in the house and pay $50 per month until the aggregate of the monthly payments, together with the $2,000 paid in February, 1923, should amount to the entire cost of the property, plus $115 per year for taxes and $15 per year for insurance, less $1,000 rebate to be given him. His testimony was corroborated by some documentary evidence, but not of the character required to satisfy the statute of frauds. He was placed in possession of the property in June, 1923, and made the monthly payments thereafter without interruption. Tashgian had married Zanone's sister, and she was living when the arrangement was made, but died in 1927. After her death defendant repudiated the undertaking, and contended that the payments of $50 a month constituted a portion, and 6 per cent. interest on the $2,000 deposit the remaining rental of $60 a month agreed upon for the property. Defendant further contended that plaintiff had the option of terminating the agreement at any time by taking back his $2,000, without interest. On July 16, 1927, plaintiff offered to pay the balance due on the contract, as he claimed it to be, and demanded a deed. Defendant then repudiated the entire arrangement, and indicated his unwillingness to carry it out. He admits, however, that he was willing to sell the property to Zanone at cost, plus taxes and insurance, provided plaintiff had kept up the payments of $50 per month until the death of Zanone's mother. Tashgian's object in going into the transaction, so he claimed, was to provide a home for Mrs. Zanone, who was his mother-in-law, without a home, and in impaired health.

What has been said is sufficient to indicate the scope of the conflicting evidence. At the conclusion of the testimony, each party entered a motion for a peremptory instruction in his favor. The court then held that the monthly payments and interest on the $2,000 deposit merely offset the reasonable rental value of the property, and permitted plaintiff to recover only $34, which, in effect, was the interest upon $2,000 from February, 1923, when the deposit was made, until June, 1923, when possession of the house was given. Appellant insists that the request of appellee for a return of his $2,000 deposit under the option which he had and admitted extinguished his rights. The fallacy of the contention lies in the fact that the demand was not made until after defendant had refused to acknowledge the contract. Zanone refused to accept a return of the $2,000, without interest, but payment was made under a stipulation that it should not affect the rights of either party. If Zanone had demanded a return of his $2,000 before repudiation of the contract by defendant, a different question would be presented. But Zanone first requested consummation of the contract, as he contended it was, and asked for a return of his deposit after the defendant had denied his claim.

It is also urged that Zanone did not bring himself within the terms of the contract, since he did not pay the $50 per month until the consideration was fully satisfied, and that a creditor cannot be compelled to accept payment of a debt in advance of its maturity. But the defendant did not reject the offer on that ground. He repudiated the whole proposition, and thus precipitated the right of plaintiff to have the matter settled. A verbal contract respecting real estate is not void, but its enforcement is prohibited, because legal proof of it cannot be made. Section 470, Ky. Stats.; Campbell v. Preece, 133 Ky. 572, 118 S.W. 373; Duteil v Mullens, 192 Ky. 618, 234 S.W. 192, 20 A. L. R. 361. But, if the situation of the parties has been altered in reliance...