The statute of frauds is a legal doctrine that requires that certain types of contracts be reduced to a writing in order to be enforceable. While the statute of frauds varies from one jurisdiction to another, in general it requires that the following types of contracts must be in writing and signed by the party against whom the contract is asserted in order to be enforceable: contracts which cannot be performed in one year, contracts involving real property, contracts involving a promise by the executor of a will to pay debts of an estate out-of-pocket, contracts for the sale of goods above a certain minimum value, and contracts wherein a party guarantees the debt of obligation of another party.
A statute of frauds defense is an affirmative defense and will be waived if not asserted in a timely fashion. In some cases a contract that would otherwise be void for meeting one of the above criteria will be held enforceable. If a party takes action in reliance on the contract, part performance can take the contract out of the statute of frauds and render it enforceable. If a party relies to his detriment on a promise that would ordinarily be void under the statute of frauds, a showing of promissory estoppel can render the contract enforceable.
The following are some cases and articles that include issues related to the statute of frauds.
In Big G Corp. v. Henry, in the original trial court action which gave rise to the appeal, the plaintiff had made the argument that the admission of certain testimony offered by the defendant violated both the parol evidence rule and the Statute of Frauds. Defendants had premised their waiver claim on a promissory estoppel argument. The court decided to admit the evidence and issued a special instruction to the jury to determine whether or not the parties had made an oral agreement such that the plaintiff would receive the title to the property in satisfaction of the debts of the defendant. The jury returned a verdict and decided that the side deal had in fact taken place and gave the verdict in favor of the defendant.
Boone v. Coe was a case in which a party tried to sue the other for damages because that party would not complete a real estate transaction. The contract fell within the statute of frauds and the court held that the plaintiff had not rendered part performance and had not relied on the promise to his detriment. The contract was therefore invalid.
In Borchardt v. Kulick the defendant contended that the oral contract fell under the scope of authority of the statute of frauds and that the trial court below was incorrect in failing to grant her a directed verdict. However, the defendant had not made any objection to the introduction of evidence of an oral contract at commencement of the trial and in fact there had been no mention of the statute of frauds. The defendant also had not made any motion to dismiss or for a directed verdict until after the plaintiff had rested its case.
In Chomicky v. Buttolph, the court was faced with the decision of whether an admission to the existence of an oral contract for the sale of certain real property can remove the contract from the Statute of Frauds. The court held that it could not. The party can admit making the oral promise and still be able to raise the defense that the contract is void under the statute of frauds. The court held that only part performance could remove it and mere preparation for purchase was not sufficient.
Another employment contract that involved an issue related to the statute of frauds was Crabtree v. Elizabeth Arden Sales Corporation. In that case the plaintiff was hired for a two year period but the agreement was never placed into a single writing. There were however several documents which, if taken together, would have met all of the requirements of a contract. The issue was whether or not the agreement had to be embodied in a single document or could be pieced together from several.
The court held that he court held that the writings combined contained all of the essential terms of the contract - the parties to it, the position that P was to assume, and the salary that he was to receive - except a term relating to the duration of P’s employment. The contract was held to be enforceable.
In Davis v. Meyer, the court articulated the rule that an oral sales contract that is not placed in writing and where none of the price has been paid is invalid unless the buyer accepts and receives part of the object being sold. It is not sufficient for the seller merely to deliver the object. There must be receipt and voluntary and unconditional acceptance by the buyer. If there is a contract for the sale of goods, and the object hasn’t been paid for, and the object hasn’t been received by the buyer, the contract is void.
DF Activities Corp. v. Brown was a case that related to the requirement that contracts for the sale of goods above a certain value be placed in writing. In that case the parties made an oral agreement to purchase a chair for $60,000. The seller denied making the promise. The court held that if the defendant denies making the oral promise, the plaintiff cannot pursue the case on the hope that evidence of the oral contract will arise during discovery.
In Easton v. Wycoff, the court held that the doctrine of estoppel which relates to a misrepresentation made regarding a past or present fact might be invoked in that case to preclude the respondent from asserting his lack of title to the property if the elements of estoppel were shown. For this case however the court noted that it could view the respondent as the owner in fact of the property and therefore had to deal with the more complex issue of whether the appellant was legally entitled to enforce or sue upon the contract.
In Johnson v. Lewis, the court held that an easement is a liberty, privilege, or advantage which a party may have in the real property of another without profit and it must be under a deed or via prescription. The court held that although the grant of an easement is ordinarily subject to the statute of frauds and must be in writing, a parol grant that has been executed will be upheld just as a parol contract for the sale of lands would be. The court did not agree that the plaintiffs' complaint sufficiently defined such a right of way as would eventually ripen into a vested right.
Ludke Elec. Co. v. Vicksburg Towing Co. involved a suit filed by the Ludke Electric Company in the County Court of Warren County against the Vicksburg Towing Company. The plaintiff sought $1,421.35 alleged to be due it because of an order placed by the Vicksburg Towing Company for certain parts of a pneumatic propulsion control. The court heard the issue joined on the statute of frauds and entered judgment for the defendant towing company.
A case that involved the statute of frauds in the context of an employment contract was McIntosh v. Murphy. In that case the defendant made an oral promise to hire the plaintiff for a year to work in his car dealership in Hawaii. The plaintiff sued when he was fired two months later. In that case the court held that an oral promise is enforceable if the promissor should reasonably expect it to induce either action or forbearance by the other party. If the party to whom the promise was made took steps in relying on that promise, the promise was removed from the statute of frauds.
In Miller v. Lawlor, the court stated that the question in cases involving the statute of frauds is not which party will suffer the greater detriment if the other party wins. The rule for promissory estoppel is that it arises when an innocent promisee relies to his disadvantage on a promise that was intended or reasonably calculated to induce action by him.
When such cases arise, equity is first concerned with the innocent promisee if the promissor were to be allowed protection under the statute of frauds. The court held that in this case the record showed that the plaintiffs bought the Vander Wal home on the strength of the defendant's promise as to how he would build. If the defendant were to build as he threatened later, a real value would be subtracted from plaintiff's premises. The court held that in light of this the plaintiff won.
Mossman v. Hawaiian Trust Co. involved a case in which in a suit seeking specific performance brought by a husband and wife alleging a gift or real property by decedent to them, the defendant executor pleaded the Statute of Frauds. The issue for the court to resolve in that case was whether there was any written memorandum in writing. The defendant elicited testimony from the husband that the alleged donor wrote a letter to his wife which could not be found but which may have been a memorandum sufficient to satisfy the Statute of Frauds.
In Piedmont Life Ins. Co. v. Bell, the defendant filed his answer together with both general and special demurrers. The substance of the demurrers was that the petition did not state a cause of action upon which relief could be granted. The defendant contended that the contract as alleged was required to be in writing under the statute of frauds and was therefore void. The defendant also alleged that the action was barred by the statute of limitations or that regarding any breaches occurring four years or more before the plaintiff filed his complaint, any claims filed with respect to those breaches would also be barred by the statute of limitations.
One case that demonstrated the meaning of “within one year” in terms of contracts that exceed one year being held unenforceable was Professional Bull Riders, Inc. v. AutoZone, Inc. In that case one party promised to sponsor another for two years, but the agreement also contained a clause that allowed the party to withdraw from the contract at any time. The court held that since the party could withdraw at any time the contract could be performed within one year and it was therefore enforceable.
In Radke v. Brenon, the court specified precisely what must be included in a writing in order for it to not fall under the statute of frauds. The court held that a writing for the sale of land must contain at least an express statement of consideration, a description of the land to be conveyed, which must be signed by the party to be bound, and the identities of the parties to the contract. In that case the court held that all of these elements were clearly present in the letter written by the defendant and the court ruled in favor of the plaintiff that the contract was valid.
Sullivan v. Porter was an example of the statute of frauds at work in a real estate transaction. In this case the plaintiff had moved onto the land and made improvements on it after the defendant assured him that he would prepare the paperwork to complete the transaction. The court held that this contract was valid. The defendant’s actions induced part performance by the plaintiff and the plaintiff won.
In Winternitz v. Summit Hills Joint Venture, the issue was whether a contract affecting third parties who were not parties to the contract would be enforceable. In that case the court held that contracts that affect third parties are not within the statute of frauds and can be enforced insofar as it affects such parties.
Showing posts with label statute of frauds. Show all posts
Showing posts with label statute of frauds. Show all posts
Wednesday, November 12, 2008
Monday, November 3, 2008
Davis v. Meyer
Davis v. Meyer, 1 S.W. 95 (Ark., 1886)
Action for conversion of goods claimed by appellants under a chattel mortgage, and claimed by appellees under a prior purchase from the mortgagor. Judgment for plaintiffs, and appeal therefrom by defendants.
Frank Tomlinson, a merchant of Pine Bluff, was indebted to both parties to this action. On the twentieth of October, 1883, he sold to Gabe Meyer & Co. a bill of merchandise, amounting to $140.15, and consisting of dry goods, tobacco, and two guns. The dry goods, which were of the value of $101.77, were packed in a box, and placed under the counter. The tobacco and guns were not separated from the rest of Tomlinson's stock. No money was paid, it being understood that the amount of the bill was to go as a credit on the debt due the purchasers, and the items were charged on the debtor's books, Meyer & Co. being furnished with a bill of parcels. Tomlinson was directed to send the goods to a certain warehouse in the town. Afterwards, on the same day, and before the goods were removed from the store, Tomlinson executed a mortgage upon the entire stock of merchandise in his store to Davis, Mallory & Co. as security for the debt he owed them, and placed them in immediate possession. They had no knowledge of the previous sale to Meyer & Co., and, when informed of it, refused to recognize the transaction, or surrender the goods to Meyer & Co., but took the goods out of the box, which had never been nailed up or closed in any manner, replaced them upon the shelves among the general stock, and sold them under their mortgage. Meyer & Co. now brought suit for the conversion of the goods; and upon a trial without a jury the circuit court held that they were entitled to recover the value of the goods that had been separated from the remainder of the stock, but not the value of the tobacco and guns, and gave judgment accordingly. Davis, Mallory & Co. have appealed.
It is superfluous to inquire whether the effect of this transaction was to transfer to Meyer & Co. the title or property in the goods, as against Tomlinson, so as to enable them to maintain replevin if he had withheld them, or to throw upon him the loss if the goods had been destroyed by fire; for as we understand the law, in order to make the sale effectual against subsequent purchasers or attaching creditors, there must have been an actual delivery,— a visible and substantial change in the possession. These goods were not ponderous nor bulky, but could have been easily delivered. See Ferguson v. Northern Bank of Ky.
We attach no importance to the fact that Tomlinson furnished to Meyer & Co. a bill of parcels. This was like a bill of sale, and insufficient evidence of a completed sale, unless accompanied by actual possession of the things sold. See Dempsey v. Gardner; McKee v. Garcelon; and Solomons v. Chesley. The only circumstance tending, even remotely, to show that Tomlinson had parted with his control of the goods, was that he had segregated a portion of them from the remainder of his stock, had boxed them up, and set them aside. This was evidence of his intention to select and appropriate them to the use of the plaintiffs. But it is not shown that the plaintiffs were even present, in person or by agent, when this was done. The box was not nailed or closed. Neither it nor the goods were marked with the plaintiffs' name or initials. The plaintiffs did not take charge of the package; nor were they to send and get the goods, but Tomlinson was to convey them to the warehouse. The plaintiffs, therefore, had no possession; and, before anything further was done, Tomlinson resold the same goods to the defendants, who had no notice of the prior sale, and who took possession. The defendants thereby obtained the better title. Crawford v. Forristall; Allen v. Carr; Veazie v. Somerby; and Garman v. Cooper.
Reversed, and remanded for further proceedings.
NOTE.
An oral contract of sale, where no part of the price is paid, is invalid, unless the buyer accepts and receives part of the thing sold; a delivery alone by the vendor is not sufficient, but there must be a receipt and acceptance by the vendee, and the acceptance must be voluntary and unconditional. See Jamison v. Simon.
A sale of chattels, where the price is not paid, and the goods are not actually delivered, in the absence of a written contract, is within the statute of frauds, and void as to creditors. See Hickok v. Buell.
But an oral contract may be taken out of the statute by a written admission in a letter to a third person. See Warfield v. Wisconsin Cranberry Co.
Where the contract for the sale of goods is oral, and no part of the price is paid, there must be not only a delivery of the goods by the vendor, but a receipt and acceptance of them by the vendee, to pass the title, or make the vendee liable for the price. See Ex parte Parker.
If, after the contract was made, the defendant takes possession of the property, (wood,) and has it repiled, this is sufficient to take it out of the statute of frauds. See Richards v. Burroughs.
And under a statute of Iowa, providing that no evidence of any contract for the sale of personal property is competent when no part of the property is delivered, and no part of the price paid, it was held that a delivery of the goods by the vendor to a common carrier is a delivery to the vendee sufficient to take the contract out of the statute of frauds. See Bullock v. Tschergi.
It is held that to constitute a delivery the goods must be set apart, Galloway v. Weck; Hoffman v. King; Carpenter v. Graham; and Galloway v. Week.
Appropriation of goods is acceptance thereof. See Wellauer v. Fellows.
Where there is a verbal order for several articles, the acceptance of a part of them, though shipped at different times from the others, will make the entire contract valid. See Farmer v. Gray.
Where a part only of the goods sold is separated from the bulk, there is no delivery of any except that part actually separated. See Holmes v. Bailey.
But it has been held that the pointing out of hogs sold, which were then accepted, although permitted to remain among and be fed with other hogs in the same drove, is a valid delivery. See Webster v. Anderson.
It is the fact of delivery under and in pursuance of the agreement of sale, not the time when delivery is made, that the statute of frauds renders essential to the proof of a valid contract. So that a delivery at a future day is sufficient if made in pursuance of the contract; and, upon the same principle, the place of delivery can make no difference. See Somers v. McLaughlin.
Action for conversion of goods claimed by appellants under a chattel mortgage, and claimed by appellees under a prior purchase from the mortgagor. Judgment for plaintiffs, and appeal therefrom by defendants.
Frank Tomlinson, a merchant of Pine Bluff, was indebted to both parties to this action. On the twentieth of October, 1883, he sold to Gabe Meyer & Co. a bill of merchandise, amounting to $140.15, and consisting of dry goods, tobacco, and two guns. The dry goods, which were of the value of $101.77, were packed in a box, and placed under the counter. The tobacco and guns were not separated from the rest of Tomlinson's stock. No money was paid, it being understood that the amount of the bill was to go as a credit on the debt due the purchasers, and the items were charged on the debtor's books, Meyer & Co. being furnished with a bill of parcels. Tomlinson was directed to send the goods to a certain warehouse in the town. Afterwards, on the same day, and before the goods were removed from the store, Tomlinson executed a mortgage upon the entire stock of merchandise in his store to Davis, Mallory & Co. as security for the debt he owed them, and placed them in immediate possession. They had no knowledge of the previous sale to Meyer & Co., and, when informed of it, refused to recognize the transaction, or surrender the goods to Meyer & Co., but took the goods out of the box, which had never been nailed up or closed in any manner, replaced them upon the shelves among the general stock, and sold them under their mortgage. Meyer & Co. now brought suit for the conversion of the goods; and upon a trial without a jury the circuit court held that they were entitled to recover the value of the goods that had been separated from the remainder of the stock, but not the value of the tobacco and guns, and gave judgment accordingly. Davis, Mallory & Co. have appealed.
It is superfluous to inquire whether the effect of this transaction was to transfer to Meyer & Co. the title or property in the goods, as against Tomlinson, so as to enable them to maintain replevin if he had withheld them, or to throw upon him the loss if the goods had been destroyed by fire; for as we understand the law, in order to make the sale effectual against subsequent purchasers or attaching creditors, there must have been an actual delivery,— a visible and substantial change in the possession. These goods were not ponderous nor bulky, but could have been easily delivered. See Ferguson v. Northern Bank of Ky.
We attach no importance to the fact that Tomlinson furnished to Meyer & Co. a bill of parcels. This was like a bill of sale, and insufficient evidence of a completed sale, unless accompanied by actual possession of the things sold. See Dempsey v. Gardner; McKee v. Garcelon; and Solomons v. Chesley. The only circumstance tending, even remotely, to show that Tomlinson had parted with his control of the goods, was that he had segregated a portion of them from the remainder of his stock, had boxed them up, and set them aside. This was evidence of his intention to select and appropriate them to the use of the plaintiffs. But it is not shown that the plaintiffs were even present, in person or by agent, when this was done. The box was not nailed or closed. Neither it nor the goods were marked with the plaintiffs' name or initials. The plaintiffs did not take charge of the package; nor were they to send and get the goods, but Tomlinson was to convey them to the warehouse. The plaintiffs, therefore, had no possession; and, before anything further was done, Tomlinson resold the same goods to the defendants, who had no notice of the prior sale, and who took possession. The defendants thereby obtained the better title. Crawford v. Forristall; Allen v. Carr; Veazie v. Somerby; and Garman v. Cooper.
Reversed, and remanded for further proceedings.
NOTE.
An oral contract of sale, where no part of the price is paid, is invalid, unless the buyer accepts and receives part of the thing sold; a delivery alone by the vendor is not sufficient, but there must be a receipt and acceptance by the vendee, and the acceptance must be voluntary and unconditional. See Jamison v. Simon.
A sale of chattels, where the price is not paid, and the goods are not actually delivered, in the absence of a written contract, is within the statute of frauds, and void as to creditors. See Hickok v. Buell.
But an oral contract may be taken out of the statute by a written admission in a letter to a third person. See Warfield v. Wisconsin Cranberry Co.
Where the contract for the sale of goods is oral, and no part of the price is paid, there must be not only a delivery of the goods by the vendor, but a receipt and acceptance of them by the vendee, to pass the title, or make the vendee liable for the price. See Ex parte Parker.
If, after the contract was made, the defendant takes possession of the property, (wood,) and has it repiled, this is sufficient to take it out of the statute of frauds. See Richards v. Burroughs.
And under a statute of Iowa, providing that no evidence of any contract for the sale of personal property is competent when no part of the property is delivered, and no part of the price paid, it was held that a delivery of the goods by the vendor to a common carrier is a delivery to the vendee sufficient to take the contract out of the statute of frauds. See Bullock v. Tschergi.
It is held that to constitute a delivery the goods must be set apart, Galloway v. Weck; Hoffman v. King; Carpenter v. Graham; and Galloway v. Week.
Appropriation of goods is acceptance thereof. See Wellauer v. Fellows.
Where there is a verbal order for several articles, the acceptance of a part of them, though shipped at different times from the others, will make the entire contract valid. See Farmer v. Gray.
Where a part only of the goods sold is separated from the bulk, there is no delivery of any except that part actually separated. See Holmes v. Bailey.
But it has been held that the pointing out of hogs sold, which were then accepted, although permitted to remain among and be fed with other hogs in the same drove, is a valid delivery. See Webster v. Anderson.
It is the fact of delivery under and in pursuance of the agreement of sale, not the time when delivery is made, that the statute of frauds renders essential to the proof of a valid contract. So that a delivery at a future day is sufficient if made in pursuance of the contract; and, upon the same principle, the place of delivery can make no difference. See Somers v. McLaughlin.
Labels:
case law,
contracts,
conversion,
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law,
merchant of Pine Bluff,
mortgage,
statute of frauds,
stock,
tobacco,
trial
Johnson v. Lewis
Johnson v. Lewis, 14 S.W. 466 (Ark. 1885).
The appellant Johnson filed his complaint against appellees, Thomas and William Lewis, alleging that he was in possession, and had been for some time, of a small tract of land which is surrounded by the farm of the defendants in such manner as that there is no mode of egress from it to any public highway, or ingress from any public highway, except across and upon the land of the defendants. He further alleges that he, and those under whom he claimed, had been in the habit of crossing the lands of defendants, to and from the surrounded premises, for more than 12 years, whereby a right of way had accrued to him as an easement to his said lands by prescription. But he alleges that defendants had wrongfully and unjustly enclosed their said lands, stopped up the way where he had been crossing, and refused to permit the plaintiff to cross the same in any manner to or from his said premises; that he had planted on his said lands 12 acres of cotton and 10 of corn, which were lost to him on account of such unjust proceeding of defendants, and he claimed damages in that amount.
To this complaint the defendants filed a general demurrer. Subsequently this demurrer was conceded, and the complaint was amended by interlineation, but the record does not disclose what this interlineation was. To the complaint as amended, however, the defendants filed a general demurrer. At this stage of the proceedings William H. Bizzell petitioned the court to be made a party plaintiff, alleging that he was the owner of the lands described in plaintiff's complaint, and that the said plaintiff Johnson was his tenant; that the right of way across the defendants' lands claimed by his co-plaintiff Johnson was an easement incident to his said lands, which had existed and been enjoyed in behalf of himself, and those under whom he claimed, for more than 12 years, and was a right implied in the grant of said lands from the government; that being such owner, and in possession of said lands and right of way appurtenant thereto, he had rented the same to said Johnson for the year 1879, at the yearly rent of $75, which Johnson had agreed to pay him out of the crop to be raised thereon, whereby, and by reason of the statute in such cases provided, he had acquired a lien upon the crop of cotton and corn so planted thereon for the payment of such rent, but by reason of such unlawful conduct and doings of the defendants, said crop was wholly lost, and, Johnson being insolvent, he was wholly unable to collect his said rent, and that by reason of such wrongful acts he was deprived of the use of his lands, etc. Bizzell was made a party plaintiff upon his petition. His petition was taken as a part of the complaint, and defendants' general demurrer extended to the petition, as well as to the original complaint. The court after consideration sustained the demurrer, and dismissed the whole proceeding. The plaintiffs appealed to this court.
It is insisted by the appellants that the allegations in the complaint sufficiently state that the plaintiffs have been in the actual enjoyment of a right of way across defendants' lands for a length of time which would clothe them with a vested right in such way, and the demurrer, admitting the truth of these allegations, should have been overruled. It is further insisted that seven years, or the period of our statute of limitations for the recovery of real property, is the period in which the enjoyment of such way would ripen into a vested right of way which could not be taken away. We are of the opinion, however, that the pleadings do not raise or present the question of a right of way across these defendants' lands by prescription. A right of way across another's land, where it exists, is an incorporeal hereditament, which may be appurtenant to adjoining lands, or in gross, but such hereditament does not come within the statute of limitations applicable to land or real estate. A vested right to such way may be acquired by use for a sufficient length of time; but for any length of time to ripen into an independent right the way should be confined to a definite line. Its use should not only be open and notorious, but continuous for the whole period. It should be occupied and used as a right, and not merely as a favor or privilege granted by the owner of the servient lands. In other words, the right of way should be definite, continuous, and adverse to the owner. A right thus acquired was by the common law called "a right by prescription," which term was peculiar to incorporeal hereditaments. The right was founded upon the presumption of a grant, and no one could prescribe for an easement in another's lands, except where it had been used time out of mind, or, in the quaint language of the old authors, "for a time whereof the memory of man runneth not to the contrary." It was sufficient to defeat a claim for such an easement that there was a time when the exercise or enjoyment of the same did not exist. No presumption of a lost grant of a right of way or other easement would be tolerated at common law so long as a time could be shown when such easement was not in use. In subsequent times, however, and especially in this country, the law has been much changed, and the length of time within which such right may be established has been much shortened. In Massachusetts and other states, by repeated decisions, the time has been held to be 20 years, in analogy to the statute limiting an entry into lands. See Sibley v. Ellis. And other states have adopted by analogy the same rule. See Parker v. Foote; Curtis v. Keesler; Cooper v. Smith; and Tracy v. Atherton. In Wynn v. Garland, this court held that "an easement is a liberty, privilege, or advantage which one man may have in the lands of another without profit, and must be under a deed or by prescription." It further held that "though the grant of an easement is within the statute of frauds, and must be in writing, yet a parol grant executed will be upheld under the same circumstances, and on the same principles, that a parol contract for the sale of lands would be; as where the grantee made improvements in good faith under the grant, or expended money or capital in its enjoyment." We are not aware that it has ever been determined in this state as to what length of time the enjoyment of such an easement would create a vested right by prescription, nor is it necessary to determine the question here. We do not think the plaintiffs' complaint sufficiently defines such a right of way across the defendants' lands as would at any time ripen into a vested right. It fails to define any particular way by metes and bounds, but merely alleges a habit of crossing defendants' lands to and from their premises, without stating whether such crossing was even confined to any particular route or line. It fails to state whether such crossing was by right on the part of plaintiffs, or by mere license by the defendants; nor is it stated whether such way had been open and continuous for the whole period alleged. It is not alleged from whom either party derived title to their lands, and no state of facts is alleged from which an obligation on the part of defendants could arise to permit the plaintiffs to have a way across their lands. The plaintiffs, however, were not without remedy. We have a statute which prescribes the mode by which parties so circumstanced can have relief. By proceeding under this statute the plaintiffs could have had a right of way established, and we think they should have pursued this remedy. Affirmed.
BATTLE, J., did not sit in this case.
Notes:
1. This case, filed at November term, 1885, is now published by request, with others, in order that the Southwestern Reporter may cover all cases in the Arkansas Reports from volume 47, p. 1.
The appellant Johnson filed his complaint against appellees, Thomas and William Lewis, alleging that he was in possession, and had been for some time, of a small tract of land which is surrounded by the farm of the defendants in such manner as that there is no mode of egress from it to any public highway, or ingress from any public highway, except across and upon the land of the defendants. He further alleges that he, and those under whom he claimed, had been in the habit of crossing the lands of defendants, to and from the surrounded premises, for more than 12 years, whereby a right of way had accrued to him as an easement to his said lands by prescription. But he alleges that defendants had wrongfully and unjustly enclosed their said lands, stopped up the way where he had been crossing, and refused to permit the plaintiff to cross the same in any manner to or from his said premises; that he had planted on his said lands 12 acres of cotton and 10 of corn, which were lost to him on account of such unjust proceeding of defendants, and he claimed damages in that amount.
To this complaint the defendants filed a general demurrer. Subsequently this demurrer was conceded, and the complaint was amended by interlineation, but the record does not disclose what this interlineation was. To the complaint as amended, however, the defendants filed a general demurrer. At this stage of the proceedings William H. Bizzell petitioned the court to be made a party plaintiff, alleging that he was the owner of the lands described in plaintiff's complaint, and that the said plaintiff Johnson was his tenant; that the right of way across the defendants' lands claimed by his co-plaintiff Johnson was an easement incident to his said lands, which had existed and been enjoyed in behalf of himself, and those under whom he claimed, for more than 12 years, and was a right implied in the grant of said lands from the government; that being such owner, and in possession of said lands and right of way appurtenant thereto, he had rented the same to said Johnson for the year 1879, at the yearly rent of $75, which Johnson had agreed to pay him out of the crop to be raised thereon, whereby, and by reason of the statute in such cases provided, he had acquired a lien upon the crop of cotton and corn so planted thereon for the payment of such rent, but by reason of such unlawful conduct and doings of the defendants, said crop was wholly lost, and, Johnson being insolvent, he was wholly unable to collect his said rent, and that by reason of such wrongful acts he was deprived of the use of his lands, etc. Bizzell was made a party plaintiff upon his petition. His petition was taken as a part of the complaint, and defendants' general demurrer extended to the petition, as well as to the original complaint. The court after consideration sustained the demurrer, and dismissed the whole proceeding. The plaintiffs appealed to this court.
It is insisted by the appellants that the allegations in the complaint sufficiently state that the plaintiffs have been in the actual enjoyment of a right of way across defendants' lands for a length of time which would clothe them with a vested right in such way, and the demurrer, admitting the truth of these allegations, should have been overruled. It is further insisted that seven years, or the period of our statute of limitations for the recovery of real property, is the period in which the enjoyment of such way would ripen into a vested right of way which could not be taken away. We are of the opinion, however, that the pleadings do not raise or present the question of a right of way across these defendants' lands by prescription. A right of way across another's land, where it exists, is an incorporeal hereditament, which may be appurtenant to adjoining lands, or in gross, but such hereditament does not come within the statute of limitations applicable to land or real estate. A vested right to such way may be acquired by use for a sufficient length of time; but for any length of time to ripen into an independent right the way should be confined to a definite line. Its use should not only be open and notorious, but continuous for the whole period. It should be occupied and used as a right, and not merely as a favor or privilege granted by the owner of the servient lands. In other words, the right of way should be definite, continuous, and adverse to the owner. A right thus acquired was by the common law called "a right by prescription," which term was peculiar to incorporeal hereditaments. The right was founded upon the presumption of a grant, and no one could prescribe for an easement in another's lands, except where it had been used time out of mind, or, in the quaint language of the old authors, "for a time whereof the memory of man runneth not to the contrary." It was sufficient to defeat a claim for such an easement that there was a time when the exercise or enjoyment of the same did not exist. No presumption of a lost grant of a right of way or other easement would be tolerated at common law so long as a time could be shown when such easement was not in use. In subsequent times, however, and especially in this country, the law has been much changed, and the length of time within which such right may be established has been much shortened. In Massachusetts and other states, by repeated decisions, the time has been held to be 20 years, in analogy to the statute limiting an entry into lands. See Sibley v. Ellis. And other states have adopted by analogy the same rule. See Parker v. Foote; Curtis v. Keesler; Cooper v. Smith; and Tracy v. Atherton. In Wynn v. Garland, this court held that "an easement is a liberty, privilege, or advantage which one man may have in the lands of another without profit, and must be under a deed or by prescription." It further held that "though the grant of an easement is within the statute of frauds, and must be in writing, yet a parol grant executed will be upheld under the same circumstances, and on the same principles, that a parol contract for the sale of lands would be; as where the grantee made improvements in good faith under the grant, or expended money or capital in its enjoyment." We are not aware that it has ever been determined in this state as to what length of time the enjoyment of such an easement would create a vested right by prescription, nor is it necessary to determine the question here. We do not think the plaintiffs' complaint sufficiently defines such a right of way across the defendants' lands as would at any time ripen into a vested right. It fails to define any particular way by metes and bounds, but merely alleges a habit of crossing defendants' lands to and from their premises, without stating whether such crossing was even confined to any particular route or line. It fails to state whether such crossing was by right on the part of plaintiffs, or by mere license by the defendants; nor is it stated whether such way had been open and continuous for the whole period alleged. It is not alleged from whom either party derived title to their lands, and no state of facts is alleged from which an obligation on the part of defendants could arise to permit the plaintiffs to have a way across their lands. The plaintiffs, however, were not without remedy. We have a statute which prescribes the mode by which parties so circumstanced can have relief. By proceeding under this statute the plaintiffs could have had a right of way established, and we think they should have pursued this remedy. Affirmed.
BATTLE, J., did not sit in this case.
Notes:
1. This case, filed at November term, 1885, is now published by request, with others, in order that the Southwestern Reporter may cover all cases in the Arkansas Reports from volume 47, p. 1.
Friday, October 31, 2008
Miller v. Lawlor
Miller v. Lawlor, 245 Iowa 1144, 66 N.W.2d 267 (Iowa 1954).
Plaintiffs are husband and wife. We shall, for convenience, refer to J. R. Miller as 'plaintiff' since Mrs. Miller does not seem to have taken active part in the transaction or trial. They bought their present home in Cherokee, Iowa, from one Vander Wal in the spring of 1952. It is on a sightly eminence with what is described as a 'terrific' nine mile view to the south and west across vacant property owned by defendant and to hills and woods beyond.
The part of defendant's premises immediately adjoining plaintiffs' on the south is a rectangular area referred to as the 'panhandle,' 101 1/2 feet north and south and 175 feet deep. The properties of both parties face east on South Eleventh Street.
Defendant owns a much larger additional tract extending south from the panhandle 257 feet, and west from the street 533 feet. The panhandle slopes downward gently from northeast to southwest. At about its south line the ground drops quite abruptly to the south in a 30 degree incline for 100 to 150 feet, then levels off for a distance and finally descends to the bottom of a ravine.
Plaintiff claims that before he purchased from Vander Wal, and in contemplation of such purchase, he obtained oral assurance from defendant that the latter would not build so as to obstruct the view from the house and he bought in reliance thereon. 'I said to Dr. Lawlor that I supposed he had heard I had been dickering on the Vander Wal house. He said 'I hope you purchase the house. We would like to have you as neighbors.' I told him that under no circumstances would I make a bid upon that house if his building plans were in any way to spoil the view to the south and southwest of this home. I told him Mr. Vander Wal had told me that he had an agreement with Dr. Lawlor (defendant) as to the location of his (defendant's) house and that I was over there to hear from him as to whether or not he confirmed that agreement I told him that Vander Wal had told me that Dr. Lawlor had agreed that he was building a hillside type of house down at the crest of the hill, and that it would not obstruct any view to the southwest; that the house would be low enough so that we could see over it.'
'Dr. Lawlor said, 'that's about right,' and he left the room and came back with two sheets of paper with some drawings upon it. He explained the diagrams to me that his house would be nine feet high would stand approximately seventy feet west of the east lot line. 'There is a rock pile down on the crest of the hill;' that that rock pile would be approximately the northwest corner of his house.'
Plaintiff testifies defendant said Vander Wal and he sighted from the living area of the proposed Vander Wal house 'as to what this would obscure, and that about all it would obscure is the farm buildings down in the valley.' I then said to him, 'If I purchase this house will you agree that you will not build your house north or west of that location?' and he said 'Certainly.'
Plaintiff further testifies defendant said 'according to his building plans, the north side of his house would be eighty feet south of his north lot line, and that the house would extend from the east lot line approximately seventy feet.' Plaintiff later verified the distances. He says 'The rock pile was slightly over eighty feet, measured from the fence, which I later learned was about three to four feet south of the true lot line, and approximately seventy-five feet west of the east lot line.'
Plaintiff also says he relied on defendant's statement and purchased the premises and would not have purchased without that assurance.
Defendant, while admitting there was a conversation at the time and place referred to, denies he made a statement that he would not build 'closer than eighty feet from his lot line' or 'further west than a point seventy feet from my east lot line.' 'The first time I ever heard these dimensions and measurements was when I was served (May 7, 1953) with the petition in the first lawsuit.' (This refers to a suit commenced by plaintiffs but dismissed several days before commencement of the present suit.)
Defendant's wife testifies she was present at the conversation. She is equally limited in her denial: 'During that conversation no mention was ever made of a measurement of 80 feet from the north lot line. No mention at all was made by either party of a measurement of distance of seventy feet west from my husband's east lot line.'
Neither denies any other part of plaintiff J. R. Miller's testimony. Neither denies the testimony with reference to what defendant was said to have told Vander Wal, nor the reference by him in conversation with both plaintiff and Vander Wal, to the rock pile as the northwest corner of his proposed home and the proposed height of nine feet of the house at that point. Nor is there any denial that plaintiff in effect secured from defendant a definite agreement with full realization plaintiffs were contemplating purchase of the Vander Wal premises on the strength of such agreement.
Mr. Vander Wal acquired the present Miller premises in August or September, 1951. He almost immediately thereafter commenced building the house now owned and occupied by plaintiffs. He describes it as 'designed for this particular lot so that the housewife would have access to the view no matter what part of the house she was in, with the exception of the bedroom and bathroom. The house was tailored to the lot. A type of construction known as contemporary. It was also designed so that the sun rays in winter time when the sun was low would reflect on this window wall to make use of the solar heating system. There is about twenty-eight feet of window wall on the south side of the house. There is no frames or anything.'
He testifies to a conversation with defendant in the early part of September, 1951, 'the first day of construction work. We were just staking out this particular lot and setting up chalk lines where the digging of footings was to be at that time.' The witness on that occasion first learned defendant owned the land to the south. They examined the Vander Wal plans and the witness says defendant also spoke of his own plans to build 'a hillside home of tri-level nature. He pointed out a rock pile' that 'would be the approximate west end of the home.' They viewed the site where defendant's home might be and concluded it would not obstruct the view from the upper premises.
It was stipulated at the close of Vander Wal's testimony that one Ferguson, his building superintendent or construction supervisor, would if present confirm his testimony as to a conversation between Ferguson and defendant in which the latter said his plans 'were of hillside nature' and in which the rock pile was referred to 'as the beginning of the north portion of his house and also that it would not be extended further west than the rock pile.'
There is a definite claim by Vander Wal that he obtained assurance at that time from defendant on the strength of which he (Vander Wal) went ahead with the construction. He also testifies to later conversations with defendant along the same line. At their first conference, he says, they discussed 'sharing the sewer and water,' and they later entered into a written 'Sewer and Water Agreement,' signed and acknowledged before plaintiff's brother and law partner as notary public. That was a month or more before plaintiffs became interested in buying the premises.
We do not go into greater detail of the transactions between Vander Wal and defendant as plaintiffs do not seem to have relied on any agreement between those two. The matter is material however as introductory to and explanatory of what plaintiff testifies he said to defendant about it at their conference already mentioned, when the oral agreement between plaintiff and defendant is claimed to have been made. It also tends to corroborate plaintiff's testimony that definite assurance was later given him by defendant.
Plaintiffs pray that defendant be enjoined from erecting any structure on his premises closer than 80 feet from his (defendant's) north lot line or extending more than 70 feet west of his east lot line or at a height greater than nine feet above natural ground level at a point 80 feet south of said north lot line and 70 feet west of said east line.
Throughout the trial defendant carefully protected his record by appropriate and careful objections to evidence, urging the statute of frauds and other objections. He also guarded against any possible waiver by careless cross-examination or by introduction of unnecessary evidence. We have no technical problem on that score. We have the clear question as to the sufficiency of the pertinent evidence to show a contract within the exception to the statute of frauds or to establish an equitable estoppel against the ban of the statute. Testimony for that purpose was admissible.
The trial court granted injunction practically as prayed, same to 'run with and be binding upon defendant's real estate for the benefit of plaintiffs' real estate and binding upon defendant, his heirs, assigns and any subsequent owners of defendant's real estate,' but to terminate 'whenever plaintiffs, or their successors permanently terminate the use of the view.'
The decree allowed defendant a 10% tolerance or leeway on specified distances and height, and protected his right to take advantage of a written waived tendered by plaintiffs which in effect waived objection to the erection of any 'garage or residential structure:' (1) Upon the east 40 feet of defendant's premises, regardless of the height thereof; or (2) The extreme north wall of which is 60 feet or more south of defendant's north line and which does not extend more than 100 feet west of defendant's east line and the height elevation of which is six inches lower than the present floor level of plaintiffs' home; or (3) The extreme north wall of which is 60 feet or more south of defendant's north line and regardless of how far west it extends from defendant's east line, providing the portion that is more than 100 feet west of said east line does not exceed a height elevation of six feet below the present floor level of plaintiffs' home.
Defendant has appealed.
I. The trial court's decision is based upon seemingly alternative theories. After a rather thorough discussion of the theory of a contract within the exception to the Statute of Frauds because of claimed 'part performance' the court says: 'In any event, whether or not plaintiff has brought himself within the recognized exception to the statute of frauds, the doctrine of equitable estoppel entitles him to complete relief.' We deem the difference between the two doctrines more apparent than real.
We quote the pertinent part of the statutes from Iowa Code Statute of Frauds. Except when otherwise specially provided, no evidence of the following enumerated contracts is competent, unless it be in writing and signed by the party charged or by his authorized agent.
'3. Those for the creation or transfer of any interest in lands.’
Section 622.33: 'Exception: The provisions of subsection 3 of section 622.32 do not apply where the purchase money has been received by the vendor, or when the vendee, with the actual or implied consent of the vendor, has taken and held possession of premises under and by virtue of the contract, or when there is any other circumstance which, by the law heretofore in force, would have taken the case out of the statute of frauds.'
It will be observed our statute, unlike its English forerunner, does not forbid oral contracts or render them invalid. It relates merely to the manner of proof. See Berryhill v. Jones and McMinimee v. McMinimee.
A consideration of the language of these sections as applied to the Record here explains what defendant in argument calls the trial court's lack of faith in the doctrine of part performance. It is particularly difficult to speak in terms of the 'creation or transfer of any interest in lands,' 'purchase money,' 'vendor,' 'vendee,' and 'possession of the premises' under the facts shown. Plaintiffs and defendant were not in the ordinary sense vendees and vendor. There was no 'purchase money' to be received by defendant nor any taking of 'possession of the premises' by plaintiffs. As defendant in argument says 'It is a very strained interpretation' to consider defendant here as a vendor.
Of course the claimed agreement was designed to create an interest in land within the purview of the statute. It contemplated the creation of a restrictive or negative easement over defendant's premises in favor of the adjoining premises. That would surely be an 'interest.' Oral evidence of it was inadmissible unless under the statutory exception or unless defendant was estopped to claim the benefit of the statute. Plaintiffs do not claim the contrary.
The acts described in Code section 622.33 as creating the exception, i.e., payment of 'purchase money' and taking 'possession of the premises', are usually spoken of as 'part performance;' but speaking literally and technically there was here no 'part performance.' As said Fairall v. Arnold, 'The term 'part performance' is a misnomer and inaccurate, in that many matters designated as such are not in fact the performance or part performance of the contract, itself, but are those done pursuant to or in reliance upon the contract.'
The apparent difficulty might perhaps be met as the analogous situation has always been met by the law of contracts, in cases where the promisor derives no benefit but the promisee suffers a detriment. Consideration has always been held to exist in such cases. See citations in West's Iowa Digest, Contracts, Key No. 52. But 'consideration' is a broader term than 'part performance' and here the statute specifies particular acts of part performance not technically descriptive of those shown in the instant case.
The New York Court of Appeals suggests the doctrine of promissory estoppel has been used in certain cases as the equivalent of consideration. See Allegheny College v. National Chautauqua County Bank.
We conclude a determination here is unnecessary as to the relative applicability of the doctrine of part performance of contract or the doctrine of estoppel. They need not be distinguished. "Promissory estoppel' is now a recognized species of consideration. See Porter v. Commissioner of Internal Revenue. And in Fairall v. Arnold, this court quoted with apparent approval from the commentator in 101 A.L.R. 935: "The true basis of the doctrine of part performance, according to the overwhelming weight of authority, lies in the principles of equitable estoppel and fraud". The statement is undoubtedly sound.
The trial court, recognizing the close relationship between part performance (as a form of consideration) and promissory estoppel, pointed out that Code section 622.33 not only names specific acts of part performance as creating an exception but also specifies 'Any other circumstance which, by the law heretofore in force, would have taken the case out of the statute of frauds.' We deem that language sufficient to include what is now called 'promissory estoppel.' See Vogel v. Shaw and Wolfe v. Wallingford Bank & Trust Co.
II. The doctrine of equitable estoppel is applicable whenever the representation or promise relied on has been made to induce action or is reasonably calculated to induce action. The Restatement of the Law of Contracts, § 90, says: 'A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by the enforcement of the promise.' See Fried v. Fisher and Halligan v. Frey.
See also Restatement of the Law of Property, § 524: 'An oral promise that certain land will be used in a particular way, though otherwise unenforceable, is enforceable to the extent necessary to protect expenditures made in reasonable reliance thereon.' 'Comment: a Rationale,' immediately following is quite pertinent here but too long to quote.
The authorities make it clear the binding force of the promise does not depend on any personal gain or advantage to the promisor. See Fried v. Fisher where it is said: 'so from the earliest times there was recognized, the principle that an estoppel might similarly arise from the making of a promise, even though without consideration, if it was intended that the promise be relied upon and in fact it was relied upon, and a refusal to enforce it would be virtually to sanction the perpetration of fraud or result in other injustice.' As stated by an early Michigan opinion: 'The rule does not rest upon the assumption that he (the party estopped) has obtained any personal gain or advantage, but on the fact that he has induced others to act in such a manner that they will be seriously prejudiced if he is allowed to fail in carrying out what he has encouraged them to expect.' See Faxton v. Faxton.
III. We do not understand defendant questions the naked proposition that equitable estoppel may be effective to take a transaction out of the statute, or more accurately stated, that the statute may not bar oral proof of the promise as a basis for equitable estoppel. He argues however that 'plaintiff has failed to prove the following essential elements of estoppel: (1) A clear and definite oral agreement; (2) That plaintiff acted to his detriment solely in reliance on said agreement; (3) That plaintiff was without knowledge of the real facts; (4) False representation or concealment of material facts; (5) That a weighing of all the equities entitles plaintiff to the equitable relief of estoppel.' It is apparent (3) and (4) are not applicable to promissory estoppel where plaintiff relies on a promise rather than a misrepresentation of fact. There were here no unknown facts to be misrepresented or concealed.
We find quite definite (practically undenied) evidence of 'a clear and definite oral agreement,' relied on by plaintiff to his detriment. The testimony has necessarily been set out in condensed form. Defendant especially urges the indefiniteness of some of the language concerning distances, e. g.: 'approximately,' 'something better than 80 feet,' 'slightly over,' etc. He concedes the definiteness of plaintiff's own testimony in that respect but asserts it was 'squarely rebutted both by defendant and defendant's wife.'
But, as already pointed out, defendant and his wife merely denied the mention of distances in figures. They did not deny reference to the 'rock pile' as the northwest corner of their proposed house nor the measurements by which the location of the 'rock pile' was, we think, sufficiently proven. A familiar maxim of law says 'that is certain which can be made certain.' It applies here. The subsequent ascertainment in distances of the location of the rock pile is not disputed.
Neither defendant nor his wife denied plaintiff said to defendant: 'That under no circumstances would I make a bid upon that house if his building plans were in any way to spoil the view to the south and southwest.' It was no casual conversation. Defendant must have understood plaintiff was seeking an assurance upon which he could rely and without which he would not act.
There is no evidential denial of plaintiff's testimony that he went to defendant before buying and expressly stated the purpose was to learn if Vander Wal's report to him was correct and in effect to exact an agreement: 'If I purchase this house will you agree that you will not build your house north or west of that location?' (clearly referring to the rock pile).
It must be conceded the lawyer-like way--and plaintiff is a lawyer--would have been for him to have asked for a written contract. But the statutory exception does not exclude lawyers from its benefits when and if they are unwise enough to rely on it. And plaintiff had a right to accept his friend's oral promise in lieu of a written contract.
IV. Defendant's fifth 'essential element of estoppel' refers to a 'weighing of all the equities.' If by that is meant a mathematical comparison of potential disadvantages to the respective parties depending on whether the promise is or is not enforced, the proposition is unsound.
The question is not which party will suffer the greater detriment if the contention of the other prevails. That is not the rule of promissory estoppel--estoppel that arises when an innocent promisee relies, to his disadvantage, upon a promise intended or reasonably calculated to induce action by him.
In such case equity is first concerned with the plight of the innocent promisee if the promisor be permitted to seek asylum within the protection of the statute of frauds.
The Record here fairly shows plaintiffs bought the Vander Wal home on the strength of defendant's commitment as to how he would build. Were he to build as threatened, a real value would be subtracted from plaintiff's premises. The evidence makes it reasonably certain the magnificent view constituted a large part of the inducement for anyone to select such a site for a house. It was clearly the deciding factor without which plaintiffs would not have bought. It was not necessarily the sole reliance. It is sufficient that without it plaintiffs would not have acted.
Vander Wal attempted to measure any threatened damage to plaintiffs' home at 'from fifty to seventy-five per cent of its present value.' But we agree with him 'the damage cannot be evaluated in dollars and cents.' That fact merely fortifies the jurisdiction of equity to restrain this threatened wrong. An injury is said to be irreparable where there exists no certain pecuniary standard for measuring the damage. We think the Record shows that here, in the language of the Restatement, 'injustice can be avoided only by enforcement' of the promise upon which plaintiffs relied.
V. While the threatened injustice to the promisee is equity's first consideration, it is proper to consider the possible harshness to defendant by enforcement of his promise.
Much was urged on his behalf during the trial on the necessity, by reason of his profession especially, of easy approach to his garage from the street. That point is probably eliminated by plaintiffs' waiver recognized by the decree which preserves defendant's right under it.
Defendant was preparing to build (in addition to a garage in the northeast part of the panhandle) a house nearly 100 feet long, to be placed diagonally from northwest to southeast on the panhandle (presumably to conform to the slope of the ground from northeast to southwest) set back 27 feet from the street and far enough north to leave room for a terrace between it and the south edge where the ground begins to drop abruptly to the south. This terrace is shown on the architect's plat as 42 feet wide at the house and fanning out wider as it extends some 30 feet to the southern edge of the panhandle.
It is obvious defendant must, under the decree here, abandon that particular plan. But it is not shown impossible to design a home in some other way or of some other type that will be appropriate to and preserve equally well the advantages inherent in the location--possibly such a type as he originally had in mind.
VI. Defendant argues there was between plaintiff and himself a fiduciary or confidential relationship of attorney and client, and that the resulting presumption of fraud has not been rebutted. We find no pleading raising that defensive issue. And we find no suggestion in the Record to warn the trial court and opposing counsel that such a contention would be made.
The rule is well established that fraud, when relief on as either a cause of action or as a defense, must ordinarily be pleaded.
Of course there are exceptions to the rule but we know of none in point here. The fact that plaintiff or his law firm had acted for defendant in other matters, unrelated here, came into the Record incidentally. It was not pleaded. The case was not tried on the issue of fraud by violation of confidential relationship or otherwise. There is no indication it was intended by defendant as furnishing the basis for a claim of fraud or undue influence. We cannot find it was ever urged to the trial court and we cannot and should not consider it on appeal.
By disposing of defendant's contention in this way we are not to be understood as implying we find anything in the Record to support it had the defense been pleaded. The contrary is true. Any relation of attorney and client in other matters and at some former time (not specified) is not shown to have been such as to have any possible effect in this transaction. Defendant has been plaintiffs' family doctor. 'If he had told me that day I had to have my appendix out I wouldn't have doubted it.' Plaintiff urges that as an explanation of his failure to ask for a written contract. These relationships make more regrettable this controversy between friends but have no legal significance under this Record.
We have tried to give careful consideration to all defendant's contentions. We conclude the trial court reached the correct result and must be affirmed. It is so ordered.
Affirmed.
All Justices concur.
Plaintiffs are husband and wife. We shall, for convenience, refer to J. R. Miller as 'plaintiff' since Mrs. Miller does not seem to have taken active part in the transaction or trial. They bought their present home in Cherokee, Iowa, from one Vander Wal in the spring of 1952. It is on a sightly eminence with what is described as a 'terrific' nine mile view to the south and west across vacant property owned by defendant and to hills and woods beyond.
The part of defendant's premises immediately adjoining plaintiffs' on the south is a rectangular area referred to as the 'panhandle,' 101 1/2 feet north and south and 175 feet deep. The properties of both parties face east on South Eleventh Street.
Defendant owns a much larger additional tract extending south from the panhandle 257 feet, and west from the street 533 feet. The panhandle slopes downward gently from northeast to southwest. At about its south line the ground drops quite abruptly to the south in a 30 degree incline for 100 to 150 feet, then levels off for a distance and finally descends to the bottom of a ravine.
Plaintiff claims that before he purchased from Vander Wal, and in contemplation of such purchase, he obtained oral assurance from defendant that the latter would not build so as to obstruct the view from the house and he bought in reliance thereon. 'I said to Dr. Lawlor that I supposed he had heard I had been dickering on the Vander Wal house. He said 'I hope you purchase the house. We would like to have you as neighbors.' I told him that under no circumstances would I make a bid upon that house if his building plans were in any way to spoil the view to the south and southwest of this home. I told him Mr. Vander Wal had told me that he had an agreement with Dr. Lawlor (defendant) as to the location of his (defendant's) house and that I was over there to hear from him as to whether or not he confirmed that agreement I told him that Vander Wal had told me that Dr. Lawlor had agreed that he was building a hillside type of house down at the crest of the hill, and that it would not obstruct any view to the southwest; that the house would be low enough so that we could see over it.'
'Dr. Lawlor said, 'that's about right,' and he left the room and came back with two sheets of paper with some drawings upon it. He explained the diagrams to me that his house would be nine feet high would stand approximately seventy feet west of the east lot line. 'There is a rock pile down on the crest of the hill;' that that rock pile would be approximately the northwest corner of his house.'
Plaintiff testifies defendant said Vander Wal and he sighted from the living area of the proposed Vander Wal house 'as to what this would obscure, and that about all it would obscure is the farm buildings down in the valley.' I then said to him, 'If I purchase this house will you agree that you will not build your house north or west of that location?' and he said 'Certainly.'
Plaintiff further testifies defendant said 'according to his building plans, the north side of his house would be eighty feet south of his north lot line, and that the house would extend from the east lot line approximately seventy feet.' Plaintiff later verified the distances. He says 'The rock pile was slightly over eighty feet, measured from the fence, which I later learned was about three to four feet south of the true lot line, and approximately seventy-five feet west of the east lot line.'
Plaintiff also says he relied on defendant's statement and purchased the premises and would not have purchased without that assurance.
Defendant, while admitting there was a conversation at the time and place referred to, denies he made a statement that he would not build 'closer than eighty feet from his lot line' or 'further west than a point seventy feet from my east lot line.' 'The first time I ever heard these dimensions and measurements was when I was served (May 7, 1953) with the petition in the first lawsuit.' (This refers to a suit commenced by plaintiffs but dismissed several days before commencement of the present suit.)
Defendant's wife testifies she was present at the conversation. She is equally limited in her denial: 'During that conversation no mention was ever made of a measurement of 80 feet from the north lot line. No mention at all was made by either party of a measurement of distance of seventy feet west from my husband's east lot line.'
Neither denies any other part of plaintiff J. R. Miller's testimony. Neither denies the testimony with reference to what defendant was said to have told Vander Wal, nor the reference by him in conversation with both plaintiff and Vander Wal, to the rock pile as the northwest corner of his proposed home and the proposed height of nine feet of the house at that point. Nor is there any denial that plaintiff in effect secured from defendant a definite agreement with full realization plaintiffs were contemplating purchase of the Vander Wal premises on the strength of such agreement.
Mr. Vander Wal acquired the present Miller premises in August or September, 1951. He almost immediately thereafter commenced building the house now owned and occupied by plaintiffs. He describes it as 'designed for this particular lot so that the housewife would have access to the view no matter what part of the house she was in, with the exception of the bedroom and bathroom. The house was tailored to the lot. A type of construction known as contemporary. It was also designed so that the sun rays in winter time when the sun was low would reflect on this window wall to make use of the solar heating system. There is about twenty-eight feet of window wall on the south side of the house. There is no frames or anything.'
He testifies to a conversation with defendant in the early part of September, 1951, 'the first day of construction work. We were just staking out this particular lot and setting up chalk lines where the digging of footings was to be at that time.' The witness on that occasion first learned defendant owned the land to the south. They examined the Vander Wal plans and the witness says defendant also spoke of his own plans to build 'a hillside home of tri-level nature. He pointed out a rock pile' that 'would be the approximate west end of the home.' They viewed the site where defendant's home might be and concluded it would not obstruct the view from the upper premises.
It was stipulated at the close of Vander Wal's testimony that one Ferguson, his building superintendent or construction supervisor, would if present confirm his testimony as to a conversation between Ferguson and defendant in which the latter said his plans 'were of hillside nature' and in which the rock pile was referred to 'as the beginning of the north portion of his house and also that it would not be extended further west than the rock pile.'
There is a definite claim by Vander Wal that he obtained assurance at that time from defendant on the strength of which he (Vander Wal) went ahead with the construction. He also testifies to later conversations with defendant along the same line. At their first conference, he says, they discussed 'sharing the sewer and water,' and they later entered into a written 'Sewer and Water Agreement,' signed and acknowledged before plaintiff's brother and law partner as notary public. That was a month or more before plaintiffs became interested in buying the premises.
We do not go into greater detail of the transactions between Vander Wal and defendant as plaintiffs do not seem to have relied on any agreement between those two. The matter is material however as introductory to and explanatory of what plaintiff testifies he said to defendant about it at their conference already mentioned, when the oral agreement between plaintiff and defendant is claimed to have been made. It also tends to corroborate plaintiff's testimony that definite assurance was later given him by defendant.
Plaintiffs pray that defendant be enjoined from erecting any structure on his premises closer than 80 feet from his (defendant's) north lot line or extending more than 70 feet west of his east lot line or at a height greater than nine feet above natural ground level at a point 80 feet south of said north lot line and 70 feet west of said east line.
Throughout the trial defendant carefully protected his record by appropriate and careful objections to evidence, urging the statute of frauds and other objections. He also guarded against any possible waiver by careless cross-examination or by introduction of unnecessary evidence. We have no technical problem on that score. We have the clear question as to the sufficiency of the pertinent evidence to show a contract within the exception to the statute of frauds or to establish an equitable estoppel against the ban of the statute. Testimony for that purpose was admissible.
The trial court granted injunction practically as prayed, same to 'run with and be binding upon defendant's real estate for the benefit of plaintiffs' real estate and binding upon defendant, his heirs, assigns and any subsequent owners of defendant's real estate,' but to terminate 'whenever plaintiffs, or their successors permanently terminate the use of the view.'
The decree allowed defendant a 10% tolerance or leeway on specified distances and height, and protected his right to take advantage of a written waived tendered by plaintiffs which in effect waived objection to the erection of any 'garage or residential structure:' (1) Upon the east 40 feet of defendant's premises, regardless of the height thereof; or (2) The extreme north wall of which is 60 feet or more south of defendant's north line and which does not extend more than 100 feet west of defendant's east line and the height elevation of which is six inches lower than the present floor level of plaintiffs' home; or (3) The extreme north wall of which is 60 feet or more south of defendant's north line and regardless of how far west it extends from defendant's east line, providing the portion that is more than 100 feet west of said east line does not exceed a height elevation of six feet below the present floor level of plaintiffs' home.
Defendant has appealed.
I. The trial court's decision is based upon seemingly alternative theories. After a rather thorough discussion of the theory of a contract within the exception to the Statute of Frauds because of claimed 'part performance' the court says: 'In any event, whether or not plaintiff has brought himself within the recognized exception to the statute of frauds, the doctrine of equitable estoppel entitles him to complete relief.' We deem the difference between the two doctrines more apparent than real.
We quote the pertinent part of the statutes from Iowa Code Statute of Frauds. Except when otherwise specially provided, no evidence of the following enumerated contracts is competent, unless it be in writing and signed by the party charged or by his authorized agent.
'3. Those for the creation or transfer of any interest in lands.’
Section 622.33: 'Exception: The provisions of subsection 3 of section 622.32 do not apply where the purchase money has been received by the vendor, or when the vendee, with the actual or implied consent of the vendor, has taken and held possession of premises under and by virtue of the contract, or when there is any other circumstance which, by the law heretofore in force, would have taken the case out of the statute of frauds.'
It will be observed our statute, unlike its English forerunner, does not forbid oral contracts or render them invalid. It relates merely to the manner of proof. See Berryhill v. Jones and McMinimee v. McMinimee.
A consideration of the language of these sections as applied to the Record here explains what defendant in argument calls the trial court's lack of faith in the doctrine of part performance. It is particularly difficult to speak in terms of the 'creation or transfer of any interest in lands,' 'purchase money,' 'vendor,' 'vendee,' and 'possession of the premises' under the facts shown. Plaintiffs and defendant were not in the ordinary sense vendees and vendor. There was no 'purchase money' to be received by defendant nor any taking of 'possession of the premises' by plaintiffs. As defendant in argument says 'It is a very strained interpretation' to consider defendant here as a vendor.
Of course the claimed agreement was designed to create an interest in land within the purview of the statute. It contemplated the creation of a restrictive or negative easement over defendant's premises in favor of the adjoining premises. That would surely be an 'interest.' Oral evidence of it was inadmissible unless under the statutory exception or unless defendant was estopped to claim the benefit of the statute. Plaintiffs do not claim the contrary.
The acts described in Code section 622.33 as creating the exception, i.e., payment of 'purchase money' and taking 'possession of the premises', are usually spoken of as 'part performance;' but speaking literally and technically there was here no 'part performance.' As said Fairall v. Arnold, 'The term 'part performance' is a misnomer and inaccurate, in that many matters designated as such are not in fact the performance or part performance of the contract, itself, but are those done pursuant to or in reliance upon the contract.'
The apparent difficulty might perhaps be met as the analogous situation has always been met by the law of contracts, in cases where the promisor derives no benefit but the promisee suffers a detriment. Consideration has always been held to exist in such cases. See citations in West's Iowa Digest, Contracts, Key No. 52. But 'consideration' is a broader term than 'part performance' and here the statute specifies particular acts of part performance not technically descriptive of those shown in the instant case.
The New York Court of Appeals suggests the doctrine of promissory estoppel has been used in certain cases as the equivalent of consideration. See Allegheny College v. National Chautauqua County Bank.
We conclude a determination here is unnecessary as to the relative applicability of the doctrine of part performance of contract or the doctrine of estoppel. They need not be distinguished. "Promissory estoppel' is now a recognized species of consideration. See Porter v. Commissioner of Internal Revenue. And in Fairall v. Arnold, this court quoted with apparent approval from the commentator in 101 A.L.R. 935: "The true basis of the doctrine of part performance, according to the overwhelming weight of authority, lies in the principles of equitable estoppel and fraud". The statement is undoubtedly sound.
The trial court, recognizing the close relationship between part performance (as a form of consideration) and promissory estoppel, pointed out that Code section 622.33 not only names specific acts of part performance as creating an exception but also specifies 'Any other circumstance which, by the law heretofore in force, would have taken the case out of the statute of frauds.' We deem that language sufficient to include what is now called 'promissory estoppel.' See Vogel v. Shaw and Wolfe v. Wallingford Bank & Trust Co.
II. The doctrine of equitable estoppel is applicable whenever the representation or promise relied on has been made to induce action or is reasonably calculated to induce action. The Restatement of the Law of Contracts, § 90, says: 'A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by the enforcement of the promise.' See Fried v. Fisher and Halligan v. Frey.
See also Restatement of the Law of Property, § 524: 'An oral promise that certain land will be used in a particular way, though otherwise unenforceable, is enforceable to the extent necessary to protect expenditures made in reasonable reliance thereon.' 'Comment: a Rationale,' immediately following is quite pertinent here but too long to quote.
The authorities make it clear the binding force of the promise does not depend on any personal gain or advantage to the promisor. See Fried v. Fisher where it is said: 'so from the earliest times there was recognized, the principle that an estoppel might similarly arise from the making of a promise, even though without consideration, if it was intended that the promise be relied upon and in fact it was relied upon, and a refusal to enforce it would be virtually to sanction the perpetration of fraud or result in other injustice.' As stated by an early Michigan opinion: 'The rule does not rest upon the assumption that he (the party estopped) has obtained any personal gain or advantage, but on the fact that he has induced others to act in such a manner that they will be seriously prejudiced if he is allowed to fail in carrying out what he has encouraged them to expect.' See Faxton v. Faxton.
III. We do not understand defendant questions the naked proposition that equitable estoppel may be effective to take a transaction out of the statute, or more accurately stated, that the statute may not bar oral proof of the promise as a basis for equitable estoppel. He argues however that 'plaintiff has failed to prove the following essential elements of estoppel: (1) A clear and definite oral agreement; (2) That plaintiff acted to his detriment solely in reliance on said agreement; (3) That plaintiff was without knowledge of the real facts; (4) False representation or concealment of material facts; (5) That a weighing of all the equities entitles plaintiff to the equitable relief of estoppel.' It is apparent (3) and (4) are not applicable to promissory estoppel where plaintiff relies on a promise rather than a misrepresentation of fact. There were here no unknown facts to be misrepresented or concealed.
We find quite definite (practically undenied) evidence of 'a clear and definite oral agreement,' relied on by plaintiff to his detriment. The testimony has necessarily been set out in condensed form. Defendant especially urges the indefiniteness of some of the language concerning distances, e. g.: 'approximately,' 'something better than 80 feet,' 'slightly over,' etc. He concedes the definiteness of plaintiff's own testimony in that respect but asserts it was 'squarely rebutted both by defendant and defendant's wife.'
But, as already pointed out, defendant and his wife merely denied the mention of distances in figures. They did not deny reference to the 'rock pile' as the northwest corner of their proposed house nor the measurements by which the location of the 'rock pile' was, we think, sufficiently proven. A familiar maxim of law says 'that is certain which can be made certain.' It applies here. The subsequent ascertainment in distances of the location of the rock pile is not disputed.
Neither defendant nor his wife denied plaintiff said to defendant: 'That under no circumstances would I make a bid upon that house if his building plans were in any way to spoil the view to the south and southwest.' It was no casual conversation. Defendant must have understood plaintiff was seeking an assurance upon which he could rely and without which he would not act.
There is no evidential denial of plaintiff's testimony that he went to defendant before buying and expressly stated the purpose was to learn if Vander Wal's report to him was correct and in effect to exact an agreement: 'If I purchase this house will you agree that you will not build your house north or west of that location?' (clearly referring to the rock pile).
It must be conceded the lawyer-like way--and plaintiff is a lawyer--would have been for him to have asked for a written contract. But the statutory exception does not exclude lawyers from its benefits when and if they are unwise enough to rely on it. And plaintiff had a right to accept his friend's oral promise in lieu of a written contract.
IV. Defendant's fifth 'essential element of estoppel' refers to a 'weighing of all the equities.' If by that is meant a mathematical comparison of potential disadvantages to the respective parties depending on whether the promise is or is not enforced, the proposition is unsound.
The question is not which party will suffer the greater detriment if the contention of the other prevails. That is not the rule of promissory estoppel--estoppel that arises when an innocent promisee relies, to his disadvantage, upon a promise intended or reasonably calculated to induce action by him.
In such case equity is first concerned with the plight of the innocent promisee if the promisor be permitted to seek asylum within the protection of the statute of frauds.
The Record here fairly shows plaintiffs bought the Vander Wal home on the strength of defendant's commitment as to how he would build. Were he to build as threatened, a real value would be subtracted from plaintiff's premises. The evidence makes it reasonably certain the magnificent view constituted a large part of the inducement for anyone to select such a site for a house. It was clearly the deciding factor without which plaintiffs would not have bought. It was not necessarily the sole reliance. It is sufficient that without it plaintiffs would not have acted.
Vander Wal attempted to measure any threatened damage to plaintiffs' home at 'from fifty to seventy-five per cent of its present value.' But we agree with him 'the damage cannot be evaluated in dollars and cents.' That fact merely fortifies the jurisdiction of equity to restrain this threatened wrong. An injury is said to be irreparable where there exists no certain pecuniary standard for measuring the damage. We think the Record shows that here, in the language of the Restatement, 'injustice can be avoided only by enforcement' of the promise upon which plaintiffs relied.
V. While the threatened injustice to the promisee is equity's first consideration, it is proper to consider the possible harshness to defendant by enforcement of his promise.
Much was urged on his behalf during the trial on the necessity, by reason of his profession especially, of easy approach to his garage from the street. That point is probably eliminated by plaintiffs' waiver recognized by the decree which preserves defendant's right under it.
Defendant was preparing to build (in addition to a garage in the northeast part of the panhandle) a house nearly 100 feet long, to be placed diagonally from northwest to southeast on the panhandle (presumably to conform to the slope of the ground from northeast to southwest) set back 27 feet from the street and far enough north to leave room for a terrace between it and the south edge where the ground begins to drop abruptly to the south. This terrace is shown on the architect's plat as 42 feet wide at the house and fanning out wider as it extends some 30 feet to the southern edge of the panhandle.
It is obvious defendant must, under the decree here, abandon that particular plan. But it is not shown impossible to design a home in some other way or of some other type that will be appropriate to and preserve equally well the advantages inherent in the location--possibly such a type as he originally had in mind.
VI. Defendant argues there was between plaintiff and himself a fiduciary or confidential relationship of attorney and client, and that the resulting presumption of fraud has not been rebutted. We find no pleading raising that defensive issue. And we find no suggestion in the Record to warn the trial court and opposing counsel that such a contention would be made.
The rule is well established that fraud, when relief on as either a cause of action or as a defense, must ordinarily be pleaded.
Of course there are exceptions to the rule but we know of none in point here. The fact that plaintiff or his law firm had acted for defendant in other matters, unrelated here, came into the Record incidentally. It was not pleaded. The case was not tried on the issue of fraud by violation of confidential relationship or otherwise. There is no indication it was intended by defendant as furnishing the basis for a claim of fraud or undue influence. We cannot find it was ever urged to the trial court and we cannot and should not consider it on appeal.
By disposing of defendant's contention in this way we are not to be understood as implying we find anything in the Record to support it had the defense been pleaded. The contrary is true. Any relation of attorney and client in other matters and at some former time (not specified) is not shown to have been such as to have any possible effect in this transaction. Defendant has been plaintiffs' family doctor. 'If he had told me that day I had to have my appendix out I wouldn't have doubted it.' Plaintiff urges that as an explanation of his failure to ask for a written contract. These relationships make more regrettable this controversy between friends but have no legal significance under this Record.
We have tried to give careful consideration to all defendant's contentions. We conclude the trial court reached the correct result and must be affirmed. It is so ordered.
Affirmed.
All Justices concur.
