Bynum v. Bynum , 87 N.M. 195 ( 1975 )

OPINION

WOOD, Chief Judge.

This appeal is concerned with the tort of wrongfully interfering with a contract, proof of part performance in a claim for breach of an oral contract to sell real estate and a counterclaim for slander of title.

Harold and Jane Bynum brought suit against Sue, the former wife of Harold, Oliver Cohen an attorney and Elizabeth the wife of Cohen. The case went to trial on an amended complaint which sought specific performance of an oral contract between Sue and Harold to convey Sue’s dwelling, sought damages for breach of the oral contract and sought damages for inducing a breach of the oral contract. During the trial the claim for specific performance was abandoned. The trial court directed a verdict for all defendants. We affirm as to Sue Bynum and Elizabeth Cohen. We reverse as to Oliver Cohen.

Defendants counterclaimed, alleging the wrongful filing of lis pendens by plaintiffs. The district court directed a verdict in favor of plaintiffs, dismissing the counterclaim. We affirm this dismissal.

There was evidence to support the following. Sue held equity in her dwelling after a divorce from Harold in 1968. Sue and Harold orally agreed in 1970 to a transaction whereby she would convey the house for some cash in hand, remittance of some of her debts to him, payment of some of her bills by him, and a final cash payment to be deferred for several months. Sue then went ,to a lawyer, defendant Cohen, and told him of the agreement. Cohen offered to buy the house at a slightly higher cash price than Harold had offered. Sue then sold to Cohen.

Wrongful Interfering With a Contract

The record shows that Elizabeth Cohen was made a party solely in connection with the specific performance claim. That claim having been abandoned, the directed verdict in favor of Elizabeth is affirmed.

Cohen claims that the alleged oral contract between Harold and Sue was unenforceable under the Statute of Frauds because not in writing. On the basis that the contract between Harold and Sue cannot be enforced, he asserts he cannot be liable for wrongfully interfering with the contract. Liability for inducing breach of contract attaches even if the contract, though valid, is unenforceable. Wolf v. Perry, 65 N.M. 457, 339 P.2d 679 (1959).

Cohen contends there is an absence of evidence that he induced Sue to breach the contract with Harold. Cohen relies on the following statement in Wolf v. Perry, supra:

“A necessary element of the tort . is a showing that the defendant played an active and substantial part in causing the plaintiff to lose the benefits of his contract. There must be some voluntary conduct on the part of the defendant, some overt act which influences the promisor to breach his contract.”

Our answer is that there is evidence that Cohen induced the breach. Its credibility was for the jury.

Cohen asserts there is an absence of evidence that any interference on his part was without justification or privilege. See Williams v. Ashcraft, 72 N.M. 120, 381 P.2d 55 (1963). Our answer is that there are conflicting inferences from the evidence. This was a question for the jury.

Cohen claims there is an absence of evidence that there was an agreement between Harold and Sue. The argument is that any such agreement must be established by clear and convincing evidence and such proof is lacking. The argument is based on the view that “to establish an oral contract within the Statute of Frauds, the evidence must be clear, convincing and unequivocal when it involves real estate.” The answer is that the tort of interference is independent of the Statute of Frauds. Wolf v. Perry, supra. Clear and convincing evidence is not required to establish the alleged oral contract when the claim is that defendant induced its breach.

Cohen contends there is an absence of evidence of malice on his part. The answer is that malice is not an element of the tort. In so holding we recognize that some decisions have referred to malice, and one of the texts cited in Williams v. Ashcraft, supra, discusses the tort in terms of “malicious interference.” The references to “malice” in connection with the tort mean the intentional doing of a wrongful act without justification. Tipton v. Burson, 73 Ariz. 144, 238 P.2d 1098 (1951); Red Wing Pro. v. American Broadcast. — Paramount Th., Sup.Ct., 213 N.Y.S.2d 315 (1961). See Annot., 26 A.L.R.2d 1227 (1952) at page 1247; Restatement of Torts, § 766, special note to comment m at 62; Restatement of Torts (Second) § 766, comment s at 49 (Tent.Draft No. 14, 1969).

Cohen’s legal defenses did not entitle him to a directed verdict. Since reasonable minds could differ as to the conclusion to be reached under the evidence, the directed verdict in favor of Cohen was erroneous. See Archuleta v. Johnson, 83 N. M. 380, 492 P.2d 997 (Ct.App.1971).

Proof of Part Performance in a Claim for Breach of an Oral Contract to Sell Real Estate

Plaintiffs having abandoned the claim for specific performance, the directed verdict in favor of Sue went to plaintiffs’ claim for damages for breach of the alleged oral contract to sell the house. The legal basis for plaintiffs’ claim is that Harold partly performed the oral contract, that because of this part performance Sue is es-topped to assert the Statute of Frauds as a defense. On this basis they assert damages may be recovered for breach of the oral contract. See Miller v. McCamish, 78 Wash.2d 821, 479 P.2d 919 (1971); Dobbs, Remedies § 13.2 (1973); Compare Alvarez v. Alvarez, 72 N.M. 336, 383 P.2d 581 (1963). We do not decide whether such a basis for recovery of damages exists in New Mexico. Compare Westerman v. City of Carlsbad, 55 N.M. 550, 237 P.2d 356 (1951). Assuming that such a remedy exists, the remedy requires proof of part performance of the oral contract.

Jones v. Rocky Cliff C. M. Co., 27 N.M. 41, 198 P. 284 (1921) states:

“Under a parol agreement to convey land, the payment of the full purchase price without some further part performance, such as delivery of possession, the making of valuable improvements, etc., is not sufficient to vest an equitable title in the purchaser. . . . ”

Alvarez v. Alvarez, supra, states that the proof required to establish an oral contract which would not be barred by the Statute of Frauds must be clear and convincing. Since part performance is the basis for avoiding the Statute of Frauds, proof of part performance must also be clear and convincing.

We doubt that the evidence shows a part performance of the oral contract in this case. Assuming, however, there is evidence of part performance, that evidence is not clear and convincing because the performance is not unequivocally referable to the oral contract. Alvarez v. Alvarez, supra. The directed verdict in favor of Sue is affirmed.

Plaintiffs contend the trial court erred in denying their motion to amend the complaint during trial. The motion asked that the complaint be amended to conform to the evidence and sought to clarify the damages sought from Sue and Cohen. Since the directed verdict in favor of Sue was properly granted we need not consider that portion of the motion. Since the directed verdict in favor of Cohen is to be reversed, and the claim against Cohen remanded for trial, we see no need to determine whether denial of the motion in the prior proceeding amounted to error. Amendments should be permitted with liberality in the furtherance of justice. Vernon Company v. Reed, 78 N.M. 554, 434 P.2d 376 (1967). On remand, plaintiffs shall be permitted to amend their claim against Cohen if such amendment is offered sufficiently in advance of trial so that Cohen may be prepared to defend against the amendment.

Slander of Title

Cohen and his wife Elizabeth counterclaimed for slander of title. During trial, the counterclaim was limited to a claim that plaintiffs wrongfully filed a lis pendens. Section 21-3-14, N.M.S.A.1953 (Repl.Vol. 4). The directed verdict on this issue was proper. At the time the lis pen-dens was filed, the Cohens had conveyed the property to Lukens. Having no interest in the property at the time the lis pen-dens was filed, the Cohens had no title which could be slandered. Island Homes, Inc. v. City of Fairbanks, 421 P.2d 759 (Alaska 1966); Rogler v. Bocook, 148 Kan. 858, 84 P.2d 893 (1938); Reaugh v. McCollum Exploration Co., 139 Tex. 485, 163 S.W.2d 620 (1942).

The Cohens also assert plaintiffs slandered their title after they reacquired the property by failing to remove the lis pen-dens after the claim for specific performance was abandoned. Assuming this contention is properly before us, the basis for this contention is that the claim for specific performance was abandoned at a hearing some months prior to trial. The contention relies on only selected portions of the record of that hearing. Plaintiffs did not abandon their specific performance claim until after several days of trial. This contention is without factual support and is without merit.

The directed verdicts in favor of Sue M. Bynum and Elizabeth J. Cohen are affirmed. The directed verdict in favor of plaintiffs on the counterclaim is affirmed. The directed verdict in favor of Oliver Cohen is reversed. The cause is remanded with instructions to enter a new judgment in accordance with this opinion, to permit amendment of the claim against Oliver Cohen if the amendment is consistent with this opinion, and to reinstate the claim against Oliver Cohen on the trial docket.

Plaintiffs are to recover fifty percent (50%) of their appellate costs.

It is so ordered.

SUTIN, J., concurring in part and dissenting in part. LOPEZ, J., concurring in part and dissenting in part.