DocketNumber： 92-1444
Filed Date： 2/16/1993
Status： Precedential
Modified Date： 9/21/2015
February 16, 1993
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1444
IN RE: NEWPORT PLAZA ASSOCIATES, L.P.,
Debtor.
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NEWPORT PLAZA ASSOCIATES, L.P.,
Plaintiff, Appellant,
v.
DURFEE ATTLEBORO BANK,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Francis J. Boyle, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and Cyr, Circuit Judge.
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Robert S. Bruzzi, with whom James J. Beaulieu was on brief,
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for appellant.
Michael R. McElroy, with whom Schacht & McElroy was on
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brief, for appellee.
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SELYA, Circuit Judge. After entering insolvency
SELYA, Circuit Judge.
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proceedings, plaintiff-appellant Newport Plaza Associates
(Newport), a Rhode Island limited partnership, commenced an
adversary proceeding against Durfee Attleboro Bank (the Bank), in
which it claimed that the Bank failed to honor an oral agreement
concerning the resumption of financing for a stalled construction
project. The bankruptcy court and the district court both
rejected the claim. The third time is not the charm: because
the record shows beyond peradventure that the parties entered
into a subsequent written contract, the terms of which directly
contradicted, and therefore superseded, the alleged oral
agreement, we affirm.
I. BACKGROUND
I. BACKGROUND
On February 8, 1988, Newport executed and delivered to
the Bank a promissory note, construction mortgage, and
construction loan agreement in order to finance the erection of a
shopping plaza in Newport, Rhode Island. Construction came to a
screeching halt that November due to difficulties between Newport
and its general contractor, DRL, Inc. When DRL and a number of
subcontractors placed mechanics' liens on the property, Newport
defaulted on the loan.
Newport tried repeatedly to work out an agreement under
which the Bank would be willing to restart the project. Newport
claims that on December 20, 1988, the Bank agreed to resume
financing the work pursuant to the terms of the original
construction loan agreement if Newport, within a reasonable
2
period of time, resolved the mechanics' liens, brought interest
payments current, reaffirmed occupancy commitments from third
parties, and replaced DRL with a suitably qualified builder.1
Newport also claims that it complied with these conditions no
later than March of 1989, but that the Bank reneged on the oral
agreement.
On October 13, 1989, with the project still dormant,
Newport submitted a written proposal to the Bank anent continued
financing. This proposal did not mention the oral agreement. By
letter dated November 1, 1989, the Bank notified Newport that it
had "decided not to allow restarting of the project." Instead,
the Bank offered, "without waiving any . . . rights," to accept
$881,000 in full satisfaction of the balance due ($1,381,000) on
the promissory note. The Bank's terms required Newport, if it
accepted the offer, to tender $881,000 in a lump sum within 90
days and, in the interim, to submit weekly progress reports on
the status of the project and its efforts to obtain the funds
needed to buy out the Bank's position. The letter, the text of
which is reproduced in the appendix, gave Newport two weeks in
which to accept the offer. It made no reference to the alleged
oral agreement.
Newport's partners signed and returned the letter
before the appointed deadline. Thereafter, they failed to make
the lump-sum payment within the stipulated 90-day period. When
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1The Bank steadfastly denies these allegations. Since the
case was decided below on summary judgment, we assume for
argument's sake that the oral agreement existed.
3
the Bank initiated foreclosure proceedings, Newport sought the
protection of Chapter 11.2
In due course, Newport filed suit in the bankruptcy
court alleging a breach of the oral agreement. After some
procedural skirmishing, not material for our purposes, the
bankruptcy court granted the Bank's motion for summary judgment.
In re Newport Plaza Assocs., 129 B.R. 326 (Bankr. D.R.I. 1991).
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The court held that the letter exchange constituted an accord
between the parties, wherein the Bank agreed to discharge
Newport's original obligation in return for Newport's timely
payment of a portion of the outstanding balance. Id. at 327.
___
The court ruled that because the Bank explicitly stated in the
offering letter that it would not allow restarting of the
project, and Newport accepted the terms of that letter, the
exchange "created new contractual obligations between the parties
and replaced the alleged December 20, 1988 oral agreement . . .
." Id. The bankruptcy court ruled, alternatively, that Newport
___
had neither established the existence of an oral agreement nor
shown performance of its obligations thereunder.3 See id. at
___ ___
327 n.1.
Newport appealed. The district court convened a
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2The bankruptcy court, following a contested hearing,
eventually granted the Bank's motion for relief from the
automatic stay. The foreclosure proceedings have been
consummated.
3Because this appeal is susceptible to resolution on the
ground that the letter exchange extinguished any oral agreement,
see infra, we do not consider this alternative holding.
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4
hearing, afforded de novo review, and rendered summary judgment
__ ____
ore tenus. In its bench decision, the district court reasoned
___ _____
that whether an oral agreement existed was of no consequence, as
any such agreement was "completely inconsistent" with the
subsequent exchange of correspondence. That correspondence, the
court ruled, constituted an accord, superseding any prior
agreement between the parties. On March 3, 1992, the clerk
entered final judgment.
Newport again appeals. The gist of its argument is
that the district court erred in holding that, as a matter of
law, Newport relinquished the right to resuscitate the original
financing arrangement a right supposedly conferred by the oral
agreement when it signed and returned the November 1 letter.
Because we agree with the district court that the letter exchange
constituted a valid contract in which the parties unambiguously
expressed their mutual intention that the Bank would not supply
funds to restart the project, we reject Newport's attempt to
enforce the prior oral agreement and affirm the entry of judgment
below.
II. THRESHOLD LEGAL MATTERS
II. THRESHOLD LEGAL MATTERS
We begin by explicating certain legal principles in
order to set the stage for a discussion of the merits.
A. The Summary Judgment Standard.
A. The Summary Judgment Standard.
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The summary judgment standard is familiar and has been
frequently elucidated. Rather than attempting to reinvent so
serviceable a wheel, we merely observe that, as the civil rules
5
themselves provide, summary judgment is appropriate when "the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law."
Fed. R. Civ. P. 56(c). The opponent of a properly focused Rule
56 motion must demonstrate, by competent evidence, the existence
of a triable issue which is both genuine and material to its
claim. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48
___ ________ ___________________
(1986); Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.
_______ ________________
1990). "In this context, 'genuine' means that the evidence about
the fact is such that a reasonable jury could resolve the point
in favor of the nonmoving party." United States v. One Parcel of
_____________ _____________
Real Property, Etc. (Great Harbor Neck), 960 F.2d 200, 204 (1st
________________________________________
Cir. 1992). "In the same context, 'material' means that the fact
is one susceptible of altering the outcome of the litigation."
Rivera-Muriente v. Agosto-Alicea, 959 F.2d 349, 352 (1st Cir.
_______________ _____________
1992).
We afford plenary review to the entry of a summary
judgment. Garside, 895 F.2d at 48. In so doing, this court,
_______
like the courts below, must read the record in the manner most
gratifying to the party opposing summary judgment, indulging all
reasonable inferences in that party's favor. See Rivera-
___ _______
Muriente, 959 F.2d at 352; Griggs-Ryan v. Smith, 904 F.2d 112,
________ ___________ _____
115 (1st Cir. 1990).
B. Choice of Law.
B. Choice of Law.
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6
In this case, the underlying contract claim depends on
state law. The parties briefed and argued the case on the
apparent understanding that Rhode Island law governs the
significance of their actions and the interpretation of their
agreements. Both lower courts adjudicated the controversy on
that basis. When opposing parties agree to the source of the
substantive law that controls their rights and obligations, and
no jurisdictional concerns are present, a court is at liberty to
accept such an agreement without independent inquiry. See Moores
___ ______
v. Greenberg, 834 F.2d 1105, 1107 n.2 (1st Cir. 1987); Mathewson
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Corp. v. Allied Marine Indus., Inc., 827 F.2d 850 , 853 n.3 (1st
_____ __________________________
Cir. 1987). We do so here.
C. What's in a Name?
C. What's in a Name?
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The parties have expended considerable effort debating
whether the November 1 letter agreement should be evaluated as an
accord and satisfaction or as a novation. We deem it unnecessary
to venture into this Serbonian bog.
The Rhode Island Supreme Court has traditionally
manifested a concern with substance rather than form in this
fuliginous corner of the law, hesitating to draw fine lines
between these two closely allied kinds of contracts where no
necessity exists for doing so. See, e.g., Mello v. Coy Real
___ ____ _____ _________
Estate Co., 234 A.2d 667, 671-72 (R.I. 1967) (noting that
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dissimilarities between the two theories are frequently of no
concern, as both "operate to discharge all the rights and
obligations emanating from a prior agreement"); Salo Landscape &
________________
7
Constr. Co. v. Liberty Elec. Co., 376 A.2d 1379, 1382 (R.I. 1977)
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(holding that, when the parties' subsequent agreement created new
contractual rights and obligations which extinguished those
arising under the original contract, "it matters not" whether a
court refers to the subsequent agreement as an accord and
satisfaction or as a rescission followed by the formation of a
new contract); see also Masse v. Masse, 313 A.2d 642, 645 (R.I.
___ ____ _____ _____
1974) (stating that either a release or an accord and
satisfaction of an alimony judgment "will bind the parties if
fully complied with and supported by sufficient consideration").
Federal courts, construing state law, have often exhibited the
same disinclination. For example, the Seventh Circuit,
confronted with an analogous fact pattern, chose practicality
over pettifoggery. See Calder v. Camp Grove State Bank, 892 F.2d
___ ______ _____________________
629, 633 (7th Cir. 1990) (concluding that a "difference in the
characterization of the [agreement] does not affect the outcome
of this case, since, under Illinois law releases, novations, and
accords and satisfactions are all contracts subject to the
requirement of mutual intent and the constraints of the parol
evidence rule").
The lesson to be learned from all of this is that, when
it would serve no useful purpose to distinguish between accord
and satisfaction, on the one hand, and novation, on the other
hand, courts should refrain from performing what will amount to
no more than an exercise in semantics. So it is here. If the
November 1 agreement constitutes a valid contract, it binds the
8
parties in substantially the same manner whether we call it an
accord and satisfaction or a novation, operating to discharge all
the rights and obligations emanating from the preexisting oral
agreement.
III. ANALYSIS
III. ANALYSIS
The crux of this appeal involves a dispute over the
interpretation of the letter agreement. We have recognized that,
in certain circumstances, summary judgment is an appropriate
vehicle for resolving contract-interpretation disputes. The key
is the lack of any ambiguity. See FDIC v. Singh, 977 F.2d 18, 21
___ ____ _____
(1st Cir. 1992); see also Fashion House, Inc. v. K Mart Corp.,
___ ____ ____________________ _____________
892 F.2d 1076, 1083 (1st Cir. 1989) (same rule applies in
directed-verdict context). It is only when ambiguity looms that
the interpretation of contract language, itself acknowledged,
becomes a question of fact for the jury rather than a question of
law for the judge. See Singh, 977 F.2d at 21; In re Navigation
___ _____ ________________
Technology Corp., 880 F.2d 1491, 1495 (1st Cir. 1989). These
________________
principles are in overall harmony with Rhode Island's
jurisprudence. See, e.g., Judd Realty, Inc. v. Tedesco, 400 A.2d
___ ____ _________________ _______
952, 955 (R.I. 1979); Fryzel v. Domestic Credit Corp., 385 A.2d
______ _____________________
663, 666-67 (R.I. 1978); O'Connor v. McKanna, 359 A.2d 350, 353
________ _______
(R.I. 1976).
Under Rhode Island law, the determination of whether a
contract's terms are ambiguous is itself a question of law for
the court. See D.T.P., Inc. v. Red Bridge Properties, 576 A.2d
___ _____________ _____________________
1377, 1381 (R.I. 1990); Westinghouse Broadcasting Co. v. Dial
______________________________ ____
9
Media, Inc., 410 A.2d 986, 991 (R.I. 1980); accord Fashion House,
___________ ______ _____________
892 F.2d at 1083. Generally, the Rhode Island Supreme Court will
deem contract language to be ambiguous when and if it is
"reasonably susceptible of different constructions."
Westinghouse, 410 A.2d at 991; accord Fryzel, 385 A.2d at 667.
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Conversely, a contract which within the realm of reason can bear
only a single plausible interpretation can be so construed by the
court as a matter of law. See O'Connor, 359 A.2d at 354. Given
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similar parameters of substantive law, we have affirmed the
granting of summary judgment where the words of a contract are so
clear that "reasonable people could not differ over their
meaning." Boston Five Cents Sav. Bank v. Secretary of Dep't of
____________________________ _____________________
HUD, 768 F.2d 5, 8 (1st Cir. 1985); accord Singh, 977 F.2d at 21;
___ ______ _____
Fowler v. Boise Cascade Corp., 948 F.2d 49, 54 (1st Cir.
______ ____________________
1991).4
Where the language of a contract is clear and
unambiguous, the Rhode Island Supreme Court has generally
interpreted the parties' intent based solely on the written
words.5 See D.T.P., Inc., 576 A.2d at 1381; Dudzik v. Leesona
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4The Rhode Island Supreme Court has elucidated a similar
standard in applying its own summary judgment rule. See Cassidy
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v. Springfield Life Ins. Co., 262 A.2d 378, 380 (R.I. 1970);
__________________________
O'Connor, 359 A.2d at 354.
________
5At least one Rhode Island case also looked to the parties'
circumstances at the time the contract was made both to ascertain
whether a term was ambiguous as used and to determine the
parties' intent in using an otherwise unambiguous term. See
___
Westinghouse, 410 A.2d at 992. We need not dwell on this
____________
distinction, however, as consideration of the parties'
circumstances in this case would only strengthen the
interpretation of the letter agreement suggested by its plain
10
Corp., 473 A.2d 762, 765 (R.I. 1984); Fireman's Fund Ins. Co. v.
_____ _______________________
E.W. Burman, Inc., 391 A.2d 99, 102 (R.I. 1978). Unambiguous
_________________
language is to be accorded its plain and natural meaning. See
___
Dudzik, 473 F.2d at 765; cf. Flanagan v. Kelly's System of N.E.,
______ ___ ________ _______________________
Inc., 286 A.2d 249, 251 (R.I. 1972) (construing Florida law but
____
indicating in dictum that Rhode Island law is identical in this
respect).
We employ these tools in analyzing Newport's assertions
that issues of fact, related to the interpretation of the letter
agreement, precluded the granting of summary judgment.
A. Acceptance of the Agreement.
A. Acceptance of the Agreement.
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We first address Newport's claim that there remains an
issue of disputed material fact as to whether, by signing and
returning the November 1 letter in the manner requested, it
intended to accept the proposed terms and thereby form a binding
contract. Newport argues that, in the letter, the Bank agreed to
release Newport from its loan obligations only upon Newport's
performance of three acts: (1) returning the letter, signed as
accepted, within two weeks; (2) delivering a certified check for
$881,000 within the period prescribed for payment; and (3)
transmitting written progress reports betweentimes. Because
Newport performed only one of the three acts return of the
letter it envisions an issue of fact regarding whether it
intended to accept the November 1 offer. Although we give
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language.
11
appellant's counsel high marks for ingenuity, we do not believe
that the letter can be construed in so elastic a manner.
Under Rhode Island law, the Bank, as the offeror,
controlled the offer and the terms of its acceptance. See B & D
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Appraisals v. Gaudette Mach. Movers, Inc., 733 F. Supp. 505, 508
__________ ___________________________
(D.R.I. 1990). It is a basic tenet of contract law that an
offeror may, as a condition of the offer's acceptance, call for
an act, a forbearance, or a return promise from the offeree in
exchange for the offeror's promise or performance. See
___
McLaughlin v. Stevens, 296 F. Supp. 610, 613 (D.R.I. 1969). So
__________ _______
long as the offeror sets forth what is being sought in reasonably
certain terms, he may bind the offeree immediately by requiring
acceptance in the form of a return promise rather than through
performance. See B & D Appraisals, 733 F. Supp. at 508.
___ ________________
Viewed against this backdrop, Newport's position
appears totally irreconcilable with the unambiguous language of
the Bank's November 1 letter. After setting forth the terms of
the offer, the Bank states the terms of its acceptance: "If you
are in agreement with the terms and conditions detailed above,
please so indicate by dating, executing and returning one copy of
this letter for our files." This language is nose-on-the-face
plain: the Bank asked for a return promise nothing more as
the indicium of acceptance.
Should any doubt linger, we are quick to remark that a
court is duty bound to construe contractual terms in the context
of the contract as a whole. See Woonsocket Teachers' Guild,
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12
Local 951 v. School Comm. of the City of Woonsocket, 367 A.2d
__________ ________________________________________
203, 205 (R.I. 1976). Here, the letter, read in its entirety,
dispels any possible claim of ambiguity. It states that the
"offer will expire November 14, 1989, and we must have your
signed acceptance in our hands by 2:00 p.m. on that date." It
then notes that, should Newport accept the offer, the Bank "must
also receive" the progress reports and the lump-sum payment as
promised.
Words are not endlessly malleable. They have meaning
and content. The particular combination of words that the
parties utilized here, taken in the stated sequence, is
susceptible of no reasonable interpretation other than that the
parties intended themselves to be fully bound coincident with
Newport's return of the letter, endorsed "APPROVED AND ACCEPTED,"
by the date and time specified. In contemplation of law, Newport
accepted the terms of the offering letter by signing and
returning it.
B. The Effect of Newport's Consent.
B. The Effect of Newport's Consent.
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Newport also claims that, even if it accepted the
offer, there remains a question of fact regarding whether, by
doing so, it intended to relinquish its right to sue the Bank for
failure to resume financing the project pursuant to the oral
agreement. This claim rests chiefly on an affidavit from Ronald
Kutrieb, one of Newport's principals, professing his belief that,
in signing the letter, he was not surrendering Newport's rights
13
under the oral agreement.6 In our view, this initiative ignores
both unambiguous language and settled law. We explain briefly.
As we have previously indicated, the plain language of
the November 1 letter is difficult to overcome. To be sure, the
letter made no reference to the earlier oral agreement.
Nevertheless, the Bank did not mince words. The letter
unequivocally stated that the Bank had "decided not to allow
restarting of the project." These words are definite. Their
purport is not contradicted by any other term in the agreement.
The ordinary meaning of the quoted language, taken in context, is
susceptible to no other reasonable interpretation than as an
expression of the parties' mutual agreement that construction
financing for the project would no longer be furnished by the
Bank.
In such clear-cut circumstances, the courts below had
no principled choice but to hold that Newport, by accepting the
offer in the manner indicated, assented to the "no further
financing" term. See Fireman's Fund, 391 A.2d at 102; see also
___ _______________ ___ ____
Theroux v. Bay Assocs., Inc., 339 A.2d 266, 268 (R.I. 1975)
_______ __________________
(explaining that a court will not import ambiguity into a
contract that unmistakably expresses the parties' intentions).
Nor did the Kutrieb affidavit create a roadblock en
route to this result. Contracts ordinarily depend on objective
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6The Bank's letter transposed two vowels in Kutrieb's name.
Moreover, one of Newport's partners, Joseph J. Dabek, apparently
did not sign the letter. The parties do not mention either the
misspelling or the omission and we, too, deem them
inconsequential.
14
indicia of consent, not on a party's subjective expectations.
When, as in this instance, the parties' intent is made manifest
by the express terms of a written agreement, fairly construed, a
court interpreting the agreement should not look to "some
undisclosed intent that may have existed in the minds of the
contracting parties but [should be governed by] the intent that
is expressed by the language contained in the contract."
Woonsocket Teachers' Guild, 367 A.2d at 205; accord Westinghouse,
__________________________ ______ ____________
410 A.2d at 991 n.10; see also Smith v. Boyd, 553 A.2d 131, 133
___ ____ _____ ____
(R.I. 1989) (explaining that, under Rhode Island law, objective
manifestations of intent govern contract formation); Mathewson
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Corp., 827 F.2d at 853-54 (same; applying Massachusetts law).
_____
Hence, the Kutrieb affidavit raised no genuine issue of material
fact sufficient to preclude the entry of summary judgment. See,
___
e.g., Singh, 977 F.2d at 23 (affirming summary judgment for
____ _____
lender on the basis, inter alia, that a litigant may not
_____ ____
subrogate the terms of an unambiguous contract to his supposed
contemplation of its meaning) (applying Massachusetts law);
Cassidy v. Springfield Life Ins. Co., 262 A.2d 378, 380 (R.I.
_______ ___________________________
1970) (stating that, where a contract's terms are clear and
unambiguous, and there are no questions of material fact to be
resolved, the nisi prius court may grant summary judgment).
____ _____
We see no way around this outcome. The Bank's explicit
disclaimer of any intention to restart the project in the
subsequent letter agreement directly contradicts the supposed
oral agreement (wherein the Bank allegedly agreed to pour more
15
money into the project upon Newport's fulfillment of certain
conditions). Given this direct contradiction, the letter
agreement, being later in time, necessarily superseded any and
all prior oral agreements anent restarting construction. It is,
after all, settled law that, if the terms of a prior oral
negotiation are dealt with, or covered by, a later written
agreement between the parties on the same general subject, then,
presumably, the latter was intended to supersede the former, and
should be so construed. See Rogers v. Zielinski, 170 A.2d 294,
___ ______ _________
296 (R.I. 1961) (explaining that, if confronted with such a
situation, a court should assume that "the writing was meant to
represent all of the transaction on that element") (quoting 9
Wigmore, Evidence 2430(3) (3d ed. 1940)); Philip Carey Mfg.
________ _________________
Co. v. General Prods. Co., 151 A.2d 487, 492 (R.I. 1959) (holding
___ __________________
that parties to a novation waive any rights they might have had
under the prior agreement); Quinn v. Bernat, 97 A.2d 273, 275
_____ ______
(R.I. 1953) (stating that a complete written agreement becomes
the memorial of the parties' intent, "merging or integrating all
prior oral agreements relating to the subject matter").
C. Lack of Consideration.
C. Lack of Consideration.
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Newport also asserts that the letter agreement is
unenforceable for want of consideration. Since the Bank
ultimately foreclosed and retained the right to pursue collection
of the entire indebtedness, this thesis runs, Newport received
nothing of value in return for relinquishing its rights under the
oral agreement. We disagree.
16
The November 1 agreement was supported by valuable
consideration on both sides. For its part, the Bank was willing
to shave approximately half a million dollars from Newport's
outstanding debt. Although Newport would not reap the benefit of
this considerable savings unless and until it made a timely
payment of $881,000, the value of the opportunity, coupled with
Newport's forbearance for the 90-day waiting period, was itself
substantial and furnished valid consideration for Newport's
return promise. See, e.g., Philip Carey Mfg., 151 A.2d at 491-92
___ ____ _________________
(holding that mutual agreement to forbear from asserting
previously acquired legal claims is adequate consideration, as a
matter of law, to support new promises made in a novation);
Phenix Nat'l Bank v. Raia, 28 A.2d 20, 22 (R.I. 1942) ("broadly
__________________ ____
speaking, an agreement to forbear to enforce rights under an
original obligation is, under the proper circumstances,
recognized as good consideration for a new obligation"); see also
___ ____
Higgins v. Mycroft, 92 A.2d 727, 729 (R.I. 1952).
_______ _______
If practiced parties to commercial transactions bargain
for, and receive, consideration that they deem satisfactory and
that the law regards as substantial, it is not a court's role,
absent fraud or other exceptional circumstances, to evaluate the
relative adequacy of the consideration or to reweigh the
soundness of the parties' judgments. See Fall River Nat'l Bank
___ ______________________
v. DeMarco, 249 A.2d 900, 903-04 (R.I. 1969).
_______
IV. CONCLUSION
IV. CONCLUSION
17
We need go no further. In the November 1 letter
agreement, the parties unequivocally agreed that the Bank would
not resume financing the ill-fated construction project. The
letter agreement superseded, and thus extinguished, all prior
negotiations on the same general topic. This means, of course,
that Newport's attempt to sue for a failure to restart the
project pursuant to the parties' earlier oral agreement cannot be
countenanced even if such an agreement existed at one moment in
time.
Affirmed.
Affirmed.
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18
APPENDIX
November 1, 1989
Newport Plaza Associates, L.P.
c/o Capital Growth Companies
Mr. Ronald E. Kutreib
221 Third Street
Newport, Rhode Island 02840
Gentlemen:
This is to confirm our meeting of October 27, 1989.
Durfee Attleboro Bank has received and reviewed your proposal
dated October 13, 1989, to restart the project. As you know,
your $2,200,000.00 note dated February 8, 1988, remains in
default, as set forth in our letter to you of April 26, 1989.
After our complete review of this proposal, we have decided
not to allow restarting of the project.
However, without waiving any of our rights, we will allow
Newport Plaza Associates, L.P. until February 1, 1990, to pay
the Bank $881,000.00, and if payment is received by said
date, said sum will be accepted as full payment of the Bank's
$2,200,000.00 note dated February 8, 1988. Therefore, if you
accept this offer you must deliver to us no later than 2:00
p.m., February 1, 1990, a certified check payable to Durfee
Attleboro Bank in the amount of $881,000.00.
If you are in agreement with the terms and conditions detailed
above, please so indicate by dating, executing and returning
one copy of this letter for our files. This offer will expire
November 14, 1989, and we must have your signed acceptance
in our hands by 2:00 p.m. on that date. If you accept this
offer, we must also receive detailed weekly written progress
reports on the status of the project and your efforts to
obtain the $881,000.00, which reports will be due every Thurs-
day at 3:00 p.m. via fax machine (508 679-8361).
If you fail to strictly meet all the terms and conditions as
set forth above, we may immediately pursue any and all of our
rights and our remedies to enforce our rights, including, but
19
Newport Plaza Associates, L.P. -2- November 1, 1989
not limited to foreclosure. Time is of the essence in all
respects.
Sincerely,
Durfee Attleboro Bank
_____________________________
Anthony J. Riccitelli
Assistant Vice President
APPROVED AND ACCEPTED:
NEWPORT PLAZA ASSOCIATES, L.P.
By:____________________________ ___________________________
Ronald E. Kutreib, partner Date
By:____________________________ ___________________________
Joseph J. Dabek, partner Date
By:____________________________ ____________________________
James J. Beaulieu, partner Date
____________________________ ____________________________
Ronald E. Kutreib, guarantor Date
____________________________ ____________________________
Joseph J. Dabek, guarantor Date
____________________________ ____________________________
James J. Beaulieu, guarantor Date
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
20
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