McNabb v. Norine

No. 32-296
IN THE SUFREllE COURT OF THE STATE OF !'40IJTAliA
1983
;.lURL h. jvlcl\JARB JOAN McNABB ,
b
Plaintiffs and Respondents,
GOLD15 NOKIWE and ROD AIiDERSEN, doing
business as TOWN COUNTRY REALTY,
Defendants and Appellants.
Appeal from: District Court of the Eighteenth Judicial District,
In and for the county of Gallatin, The Honorable
W. W. Lessley, Judge presiding.
Counsel of Record:
For Appellants:
Landoe, Brown Law Firm; J s k n Xomner argued, Bozeman,
Montana
For Respondents:
Morrow, Sedivy, Olson & E c k ; Edmund Sedivy argued,
Bozeman, Montana
Submitted: January 18, 1983
Decided : June 9, 1983
Filed: 4UN 9 1983
-.
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Goldie Norine and Rod Anderson appeal from a judgment of
the District Court, Eighteenth Judicial District, Ga.llatin
County, in favor of the plaintiffs, based on a jury verdict
of $45,000 in favor of the McNabbs. We affirm as to Goldie
Norine and reverse as to Rod Anderson.
The issues in this case are these:
1. The legal sufficiency of a memorandum signed by
Goldie Norine to establish an oral agreement to buy real
property from the McNabbs.
2. The sufficiency of the evidence to support the
judgment against Rod Anderson.
3. The sufficiency of the evidence to support the
damages of $45,000.
In the fall of 1978, Goldie Norine and Rod Anderson had
been acting as real estate agents for Murl and Joan McNabb,
attempting to locate farm property larger than the 15 acre
place McNabbs were then living on.
There is a dispute in the evidence as to the nature of
the relationship between Rod Anderson and Town and Country
Real Estate, the realtor firm involved in this ca.se. Both
Goldie Norine and Rod Anderson claimed that Goldie was the
sole proprietor during the incidents here involved. At the
time of the trial, Rod Anderson admitted to being the sole
owner of Town and Country Real Estate. While they were
dealing with the McNabbs, the advertising for the firm,
including stationery, made no distinction and from such it
appeared that Goldie Norine and Rod Anderson were doing
business together as Town and Country Real Estate.
At any rate, Rod Anderson prepared on separate occasions
two buy-sell proposals for the McNabbs to purchase a farm
near Livingston, Montana, known as the Branger Place. Murl
McNabb testified that he had told the realtors that he would
have to sell his farm property (the Kelly Canyon place) in
order to complete the purchase of another piece of real
estate. In the second buy-sell agreement made out by Rod
Anderson for the Branger Place, it was proposed that the
McNabbs simply trade the Kelly Canyon property as a
downpayment. Branger refused to accept this proposal and the
deal fell through.
In early 1979, Goldie Norine showed the McNabbs the
Flikkema Farm, and prepared an initial buy-sell agreement
dated February 7, 1979. The proposed buy-sell called for a
purchase price of $300,000 with $85,000 to be paid down. The
proposal included a statement "earnest monies refunded if
purchaser cannot sell his property." The buy-sell was signed
by the McNa.bbs but not accepted by the Flikkemas.
Goldie Norine prepared a second buy-sell agreement at
the request of the McNabbs, but nothing came of the second
proposal.
A third buy-sell agreement was prepared by the realtors,
typed by Rod Anderson, whereby the purchase price to the
Flikkemas was to be $300,000, with $20,000 downpayment, and
$65,000 to be paid on or before June 20, 1979. This buy-sell
agreement was never signed by either purchasers or sellers,
but it contained the terms of a final contract for deed
signed by both parties on March 5, 1979. It was admitted by
Goldie Norine that the reason the downpayment monies were to
be made in two payments was to allow her time to sell the
Kelly Canyon property on behalf of the McNabbs.
The first portion of the downpayment, $20,000, the
McNabbs borrowed from First Security Bank of Bozeman.
The McNabbs claimed during the trial, and under the jury
verdict we must accept, that the McNabbs had made it clear to
the realtors Goldie Norine and Rod Anderson that the Kelly
Canyon property would have to be sold before the McNabbs
could complete the purchase on the Flikkema place or any
other farm. The McNabbs also testified that before the
signing of the Flikkema contract for deed, Goldie Norine
promised the McNabbs that if they would go ahead and buy the
Flikkema place, she would either sell the Kelly Canyon
property for them or buy it herself. The McNabbs claimed
that based upon these promises, they signed the Flikkema
contract for deed. Thereafter the realtors received a
commission of $12,000 from the Flikkemas with Goldie Norine
receiving one-half and Rod Anderson receiving the other half
of the commission.
Later a formal listing agreement was prepared by Goldie
Norine authorizing Town and County Real Estate to sell the
Kelly Canyon property. The listing price was set at
$106,000, apparently to allow the realtors to receive a
commission over and above the expected sales price. Nothing
materialized, however, from the exclusive listing, and the
Kelly Canyon property remained unsold.
As the deadline for the $65,000 payment to Flikkemas
drew near, at the request of McNabbs, Goldie Norine delivered
to McNabbs a written memorandum on Town and Country Real
Estate stationery stating:
"I will buy Murl property for the appraised value
which will run in the $90,000 approx. as soon as
financing is available within the next two weeks.
I s / Mrs. Goldie Norine"
Goldie Norine testified that she fully intended to
perform the purchase, and that she considered the memorandum
a valid agreement.
The formal listing of the Kelly Canyon property with
Town and Country Real Estate was to expire on June 19, 1979,
one day before the $65,000 payment was due on the
McNabb-Flikkema contract. The listing was extended to August
1, 1979. When the realtors failed to sell the property and
did not purchase it themselves, the McNabbs attempted to sell
the property through a different real estate firm. On
February 20, 1980, formal demand was made upon Goldie Norine
to purchase the property. This demand was refused, Goldie
Norine and Rod Anderson answering through their attorney.
On August 5, 1980, the McNabbs sold the Kelly Canyon
property for $75,000. At closing the McNabbs received all
but $22,000 of the purchase price. They paid a commission of
$4,500 and had other closing costs of $326.
The McNabbs commenced suit against Goldie Norine and Rod
Anderson, and after jury trial, the judgment of $45,000
resulted.
The appellants contend that the memorandum signed by
Goldie Norine is an insufficient instrument on which to
establish an oral agreement to buy real property. They
contend that the memorandum was not signed by Rod Anderson,
that the memorandum is deficient and that its essential
elements cannot be determined with reasonable certainty,
i. e. , the parties to the contract, the land subject to the
contract, the terms and conditions of the contract, and by
and to whom the promises were made. In those contentions,
they rely on Johnson v. Elliott (1950), 123 Mont. 597, 218
P.2d 703; Lewis v. Peterson (1954), 127 Mont. 474, 267 P.2d
127; and Dineen v. Sullivan (1950), 123 Mont. 195, 213 P.2d
241.
McNabbs counter that here the memorandum sets forth the
essential terms of the oral contract and it should be
enforced. They also rely on Dineen, supra, and on Johnson v.
Ogle (1947), 120 Mont. 176, 181 P.2d 789, where this Court
held that par01 evidence was admissible for the purpose of
explaining a memorandum.
In this case, the person who signed the memorandum is
Mrs. Goldie Norine. At trial, she admitted that she intended
to go through with the agreement as set forth in the
memorandum. While the description "Murl property" is not in
itself sufficient, it is identifiable through the listing
agreement given to Town and Country Real Estate in which the
Kelly Canyon property was fully described. A memorandum to
support a contract may involve several writings in order to
determine the meaning of the parties. Hughes v. Melby
(1959), 135 Mont. 415, 340 P.2d 511. The purchase price in
the memorandum is set at "$90,000 approx." Mrs. Norine
testified at the trial that the property was worth $90,000 to
$95,000 and she accepted a buy-sell agreement for the
property when it was listed for $106,000. The date of
performance is fixed "as soon as financing is available
within the next two weeks."
Thus the memorandum appears to have in it the essential
elements of a binding contract. If the material elements are
stated in general terms, all the details or particulars need
not be stated. Empire Steel Mfg. Co. v. Carlson (1981), -
,
Mont. - 622 P.2d 1016, 38 St.Rep. 101; Johnson v. ~lliott
(1950), 123 Mont. 597, 218 P.2d 703. The memorandum, when
read in connection with the listing agreement for the
property involved contains the material elements of a
contract, which is enough to satisfy the statute of frauds,
section 30-11-111, MCA. Dineen, supra; Elliott, supra; Ogle,
supra.
Moreover, the memorandum was received in evidence during
the trial in the District Court without objection and
especially without contention that the memorandum did not
satisfy the statute of frauds. We will ordinarily not review
an issue in the Supreme Court that has not been raised in the
District Court. Chadwick v. Giberson (1980), Mont .- I
618 P.2d 1213, 1215, 37 St.Rep. 1723, 1726; Davis v. Davis
(1972), 159 Mont. 355, 361, 497 P.2d 315, 318. Appellants
contend, however, that the lack of objection at the time of
trial should not be fatal here because the legal
insufficiency of the memorandum survives as an issue in the
Supreme Court. We have indeed held that the Supreme Court
has the duty to determine whether parties were denied
substantial justice in the District Court and that we can
consider, using discretion, whether the lower court deprived
a party of a fair and impartial trial even if an objection
was not raised there. McAlpine v. Midland Electric Co.
(1981), Mont . , 634 P.2d 1166, 38 St.Rep. 1577. In
order for us to consider, however, an issue not raised before
the District Court, we hold that there must be plain error,
or the refusal to consider the issue must result in
substantial injustice and deprive the party raising the issue
of a fair trial. Halldorson v. Halldorson (1977), 175 Mont.
170, 573 P.2d 169. We cannot, considering the circumstances
of this case, so hold. It is obvious from the memorandum
signed by Goldie Norine that she intended it to be an
agreement between herself and the McNabbs (though she
contended that it was contingent upon her obtaining the
financing), and that she intended to perform the contract.
It is too late to raise the statute of frauds as a defense
for the first time on appeal in that situation.
This brings us to the second issue, whether the verdict
against Rod Anderson is supported in the evidence.
Anderson contends that on its face, the memorandum was
not signed by him, and since Goldie Norine referred to "1"
instead of "we," the memorandum cannot be construed to
include him as a purchaser of the McNabb property. He also
relies on the provisions of the statute of frauds, section
30-11-111, MCA, as follows:
"No agreement for the sale of real property or of
any interest therein is valid unless the same, or
some note or memorandum thereof. be in writ in^ and
subscribed by the party to be charged - - agent
or his
thereunto authorized in writing; but this does not
abridge the power 0 any court to compel the
7
specific performance of any agreement for the sale
of real property in the case of part performance
thereof. "
Anderson contends that not only did he not sign the
memorandum but neither did any agent of his "thereunto
authorized in writing."
There is substantial evidence in the record connecting
Anderson to the agreement to buy the McNabb property. The
memorandum itself was on Town and Country Real Estate
stationery, which listed him on the letterhead along with
Goldie Norine without any indication that he was anything but
a co-owner of the realtor firm; he received one-half of the
commission on the sale of the Flikkema property to the
McNabbs; he typed the buy-sell agreement which became the
basis of the McNabb-Flikkema contract; he was the agent who
first worked with the McNabbs when the offers were made for
the Branger Place. In that state of the evidence, the jury
could have believed that he was a co-owner of the realtor
firm, and that Goldie Norine was acting for both when she
signed the agreement to purchase the McNabb property.
Yet the statutory requirement in the Statute of Frauds
that the authority of an agent be in writing to bind another
in an agreement for the sale of real property has been with.
us since 1895, adopted from the Field Code. Before 1895,
such authority was not required by statute to be in writing.
Cobban v. Hecklen (1902), 27 Mont. 245, 70 P. 805. Since the
requirement was made part of the Statute of Frauds, it has
been the backbone of many decisions of this Court, denying
claimed agencies not evidenced in writing by the party to be
charged. Hartt v. Jahn (1921), 59 Mont. 173, 196 P. 153;
Sunburst Oil and Gas Co. v. Neville (1927), 79 Mont. 550, 257
P. 1016; Mahoney v. Lester (1946), 118 Mont. 551, 168 P.2d
339; Schwedes v. Romain & Mudgett (1978), 179 Mont. 466, 587
P.2d 388. The claim here against Rod Anderson is of that
specie. No writing exists in the evidence by which he
appointed Goldie Norine to act as his agent in signing the
memorandum on which the McNabbs rely.
In addition, no reliance can be placed in this case on
the Uniform Partnership Act to eliminate the requirement that
an agent's authority be in writing signed by the party to be
charged under the Statute of Frauds. The partnership, if it
be one, between Goldie Norine and Rod Anderson in Town and
Country Real Estate can be bound by Goldie Norine in the
purchase of real estate only if she were carrying on the
business of the partnership in the usual way. Section
35-10-301, MCA. Nothing by way of evidence shows the
purchase of real estate was the usual way of doing business
by Town and Country Real Estate. For aught that appears,
Goldie's written memo was outside the usual course of the
pa.rtnership business. The Statute of Frauds is applicable
and Rod Anderson cannot be bound to the contract evidencedby
the memo absent his authorization thereunto in writing. See
Elis v. Mikelis (Cal. 1963), 32 Cal. Rptr. 415, 384 P.2d 7. We
therefore hold that the evidence here does not support the
verdict against Rod Anderson.
The third issue is the sufficiency of the damages. We
find these to be sufficiently established in the record. The
McNabbs eventually sold their property for $75,000. This was
$20,000 less than the approximately $95,000 that Goldie
Norine agreed the property was worth, and which she stated
she was willing to pay. McNabbs proved additional interest
damages of $21,345.52 based on $95,000 borrowed from First
Security Bank of Bozeman at the prime rate plus 1% for the
period March 6, 1979 to September 19, 1979, when the Kelly
Canyon property was sold. They paid a commission of $4,500
and had other closing costs of $326 in selling the Kelly
Canyon property. Thus there is substantial evidence in the
record showing damages in excess of $45,000, justifying the
jury verdict.
This case was submitted to the jury on two theories of
liability, one for fraud, and the other for breach of
contract. The court without objection instructed the jury as
to damages for tort and for breach of contract. Under either
approach, the damages found by the jury are sustainable.
The judgment here is affirmed as to Goldie Norine and
the cause is reversed and dismissed as to Rod Anderson.
We Concur: