*3 WIEAND, Before POPOVICH, TAMILIA and JJ. POPOVICH, Judge: appeal
This is an by appellants, Ward and Rachel Cratty, judgment from a which was entered in appellee, favor of Fannin, Wilda after a involving trial an auction sale of the Cratty’s house.1 We affirm. Tuesday,
On June Wilda Fannin attended the auction a house by appellants owned and successfully *4 all competing outbid entrants. property “knocked was $45,500, down” to her at a price of and she immediately posted per a 10 cent downpayment in accordance with the auction, terms of the sale. Prior to the in- appellee had spected the house in the company Miller, of Blanche E. attorney-in-fact for and representative of appellants. During Fannin’s inspection, personal belongings were in the process of being removed from the house. Boxes of assort- Cratty 1. Rachel is now deceased. in a manner temporarily paraphernalia positioned
ed were deteriorating basement wall. the view of a which obstructed at appellee reappeared appel- Saturday, July On tour, accompanied a further property lants’ and commenced time, the At this basement was agent. her insurance visit, the appellee demanded Sometime after that vacant. $4,550. agent insurance testified Appellee’s of her return the at that time property he refused to insure at trial that posed by collapsing hazard basement because wall. denied, suit she commenced appellee’s request
After was 23, 1981, downpayment. return of her seeking the July on in the alleging damages a counterclaim Appellants filed the difference $6,500, represented between amount of which $39,000, $45,500 price subsequently price of and bid A jury a third trial commenced party. offered to them for in 19, 1983, appellee resulted a verdict May on which $3,500 counterclaim. against appellants’ and the amount Judgment denied. trial motions filed and Post were entered, appeal and this followed. issues for our consideration. present two
Appellants First, instructing trial court erred argue that the they They of Frands.2 on the Statute applicability oral nature of the con- that, notwithstanding the contend incurred as a result tract, may damages either seek party appellee claim that breached they the other’s breach. Since to the loss of damages equal seek agreement, they the oral bargain.3 their P.S.Sec. 1. 1 Sm.L.
2. 1 of the Act of March Section dissent, appellants do not Contrary position in the to the reflected 3. money regarding jury’s hand verdict to return the raise an issue explained they the Statute of Frauds nor do claim that They only "THE incorrectly. Appellants one issue. claim that raise PRECLUDE A SUIT FOR DAM- OF FRAUDS DOES NOT STATUTE AT AUCTION BREACH- THE SUCCESSFUL BIDDER AGES WHERE TO PURCHASE REAL PROPERTY.” ES AN ORAL AGREEMENT Thus, added). 10) they simply (Brief (Emphasis Appellants at damages equal difference between the bid claim to assert their they argue proposed price, is not price sale a claim *5 Second, appellants argue the trial court erred in submitting to the question of whether the condition of the defective basement wall was a latent defect. Accord- ing appellants, this legal question was an issue to be resolved by trial court.
Turning to the applicable legal standard which
governs
case,
the instant
recognize
we
that this Court will
“
not reverse the trial court’s order
‘absent an abuse of
discretion or error of law which controlled the outcome of
”
the case.’ Allison v.
&
Snelling
Inc.,
Snelling,
425 Pa.
519, 521,
229 A.2d
(1967);
also,
see
McDevitt v.
Co.,
Terminal Warehouse
To
the Statute of Frauds provides in
effect that
agreement
no
for the sale of real estate will be
enforced
it
in writing
unless
and signed
party to
charged.4
Its fundamental purpose is to prevent asser
tions of verbal understandings and thus to obviate the
opportunity for fraud and perjury.
Brotman,
Brotman 353 Pa.
Appellants contend that the Statute of Frauds has no application to the instant case because the sought relief is monetary damages, rather than the alternative equitable remedy specific performance. Appellants point correctly out that we have held that liability will be imposed for
precluded by the Statute of Frauds. It is this issue to which we direct
our review.
universally
"...
it is
4.
held that sales
auction are within the
provisions of the Statute of
any
Frauds to the same extent as
other
relating
80, 83,
sale ...
to land.” Polka v.
May,
118A.2d
breach
in an
monetary
of an oral
action for
*6
the fact
damages notwithstanding
the Statute of
agreement
Frauds rendered the oral
unenforceable in an
performance.
80,
action for
v.
383 Pa.
specific
May,
Polka
Rahon,
508,
In must reaching this we set forth the follow- ing guidelines:
The
Frauds does
Statute of
not void those oral con
tracts
to land
fail to
relating
comply
with
Stat
Zlotziver,
ute’s formal
Zlotziver v.
355 Pa.
requirements.
(1946).
Rahon told the Weirs that she preferred to delay on the closing vacant lot until after the first year for income tax purposes. 2, 1978, On January Rahon mailed an agreement of sale to the provided Weirs which for two installments, $2,000 paid to be $10,- before the and closing 000 to paid upon be delivery of the deed. The Rahons however did not sign agreement. 17, 1978,
On February appellees mailed Elsie Rahon $2,000. later, Three days Rahon returned the check to the stating Weirs that she would not sell the property because the Weirs failed to comply with certain time deadlines set forth the agreement. Plaintiffs filed a complaint in equity seeking specific performance and such other relief as the court deemed appropriate. Appellants raised the stat- ute of frauds as a defense. The trial court appel- denied request lee’s for specific performance but scheduled anoth- er hearing to determine if monetary damages should be granted.
At the second hearing, appellees presented evidence of their expenses which had been incurred after they had entered into the oral (1) contract to sell: for digging $35.00 septic tank; (2) to a Supervisors $40.00 Board of for a test; septic (3) $2,250.00 tank for renting a cabin for 334 December, if
ten months that Appellees from 1977. stated of of parcel completed, they the sale the land had been during rented for six months only would have the cabin time also being Appellants their house was built. $4,100 com- they spent had real estate stated trial court a verdict in of mission. The entered favor except the costs incurred ex- for all cabin appellees covering an amount four which the court limited to penses months. appeal, following: said the
On
w.e
“
elementary that,
‘It is
of the provisions
...
because
of
the statute of
for the sale
of
in writing
land cannot be
enforced unless
specifically
charged
agents
or their
signed
writing____’
v.
lawfully
thereunto
authorized
Polka
80, 82,
383
Our
Pa.
118
155
May,
frauds, however,
permit
of
has been
as
statute
construed
agree
of an oral
ting recovery
damages
for breach
See,
Hert
supra;
ment
sell land.
Polka v.
e.g.,
May,
Administrator,
(1859);
Im
v.
zog Hertzog’s
(1910);
Herb, 43
Pa.Super.
Stephens
mel v.
Barnes,
Pa.Super.
Swayne
Swayne,
damages
Pa.Super.
Generally,
measure
paid
in such a
is ‘the
that was
on account
money
case
faith of
purchase
and the
incurred on the
expenses
*8
84, 118
383 Pa. at
supra,
the contract.’ Polka v. May,
Balint,
Pa.
210
A.2d at 156.
also
418
See
Corace
Griswold,
882
In buyers we held that the did not that prove Elsie Rahon inception committed fraud at the of the contract. this conceded that Although Court Elsie Rahon failed to tell that her buyers jointly husband owned the property, we following: said the evidence, however,
“There was no that Elsie Rahon plaintiffs. Moreover, intended to mislead there was no planned evidence that Elsie Rahon at that time not to sell plaintiffs. to Her property later refusal to sell the to is insufficient property plaintiffs prove fraud at the time the contract was entered into. See Rineer v. Col- lins, supra. Consequently, because there was no fraud $2,000.00 in this case and Elsie Rahon returned the paid are by plaintiffs, plaintiffs entitled to dam- only ‘the ages expenses incurred on the for faith of ’ ” added) contract. May, supra. (Emphasis Polka v. Id. appellants did not dispute aspect of that propriety of the verdict which jury’s damages awarded for the costs incurred connection with the septic respect tank. With expenses, other this Court concluded appellees could recover the real estate commission since plain- “the tiffs the real estate paid commission on the faith of their own oral contract.” Id.
This Court modified the award of for the rental of $900 the cabin and said that expense because the rental appellees breach, incurred learned of the no dam- after ages would awarded for that purpose. be
Thus, a fair reading case law reveals that the measure of damages appropriate an action for breach of an oral agreement to sell land is to restore the seller quo status existed at the time that the en tered into the A agreement. party may compensated the loss of a bargain only where the agreement was ob- *9 case,
tained by fraud.5 In this the record is devoid of any evidence which would support conclusion that the appellee breached the contract or otherwise secured the contract through the use of fraud.
However, even assuming appellee that breached an contract, oral appellants to award damages the representing price difference between the and price bid the obtained in a later sale to a third party would be to compensate appel lants for the bargain. loss their Such award would be tantamount to enforcing a contract is otherwise unen forceable under the Statute of Frauds.6 This we will not do.7 agrees appellants presupposes
5. The dissent with the existence of buyer a breach the of a valid oral contract and characterizes the buyer given outcome opportunity as one where the is the to use the case, Statute of as jury Frauds a sword. In the instant the appellee informed of the three contentions of and the alternative appellants. judge implied theories of The never which was the correct theory apprised jury requirements but instead of the formal of the Statute of Frauds and the effect of the nondisclosure of a latent defect employ legal so that precepts could such as tools with which verdict, thereby choosing legally acceptable theory. to form their judge jury: informed the property, subject “When there exists in the which is the of a help you determining things sale—this is to some of these you must determine —latent defects or hidden conditions not dis- seller, property, coverable on a reasonable examination of the if thereof, knowledge he has is bound to disclose such latent defects or buyer, may conditions to the and his failure to do so be made the fraud, charge basis of or a basis to the contract. If rescind examination, readily upon condition is ascertainable a reasonable (T-145) duty then the seller is not under a to disclose.” light jury’s findings, permitted In to avoid the purchase on basis of the existence of a latent defect. See at infra 5. Dawson, Appellants’ 6. reliance on Harris v. (1978) misplaced as that case involved a written contract for the sale real estate. question We note that there appellants is also some as to whether successfully prove relationship appel-
could a direct causal between rescinding lee’s action in drop appellants’ and the price. sale appellee 7. It should be noted that herein was able to avoid the through appellants’ contract fraudulent concealment of a latent de- *10 reasoning, agree Under this line of we the trial court with appellants’ granted appel- which denied counterclaim and lee’s claim for the return of her downpayment. also contend that the trial court erred
Appellants in submitting question of the existence of a latent deteriorating defect to the with to the wall.8 jury respect this contention.9 reject We alone recognize
We
where the evidence
fact,
disputed
would
an inference of the
the issue
justify
strong
must
no matter
or
jury,
be submitted
how
pervasive may
countervailing
be
evidence. Hawthorne
(1983),
Pa.Super.
v. Dravo
Judgment
WIEAND, J.,
dissenting opinion.
filed a
damages
feet. We do not decide whether she could have recovered
See,
bargain.
Bradley, supra.
for her loss of the
Seidlek v.
appellants’
Questions
8. This issue is omitted from
Statement of
In-
Although normally
point
volved.
no
considered which is not
forth,
below,
by
set
because the issue was raised
addressed
the lower
brief,
length
appellants’
court and covered at
in the interests of
Davis,
dispose
fairness we will
of the issue. See Pa.R.A.P.
In Re
(1981),
Jones,
Pa.Super.
WIEAND, Judge, dissenting: Wilda Fannin was the successful bidder at a public sale improved real estate owned by Ward and Rachel Cratty. After the property had been “knocked down” to Ms. Fannin $45,500.00, she. made a deposit (10%) of ten purchase price accordance with the conditions of sale. later, Less than a week she demanded a return of her deposit; and refused, when her demand was she com- menced an action in assumpsit to recover the deposit. The sellers filed a counterclaim for the difference between Ms. *11 price $45,500.00 Fannin’s bid $39,000.00 and the price of which were they able to obtain a upon resale after the original buyer persisted in her refusal to take title and pay the purchase balance price. trial,
At the evidence showed that after the real estate had been “knocked Fannin, down” to Ms. signed she agreement as follows: establish, however,
The evidence did not person that on signing behalf of the sellers had been authorized writing sign agreement on their behalf.
The trial court which jury instructed heard evi- dence that the buyer deposit could recover her any on one possible three theories. The theory presented first buyer, bid, that by making merely had purchase offered to the real estate and that her offer had prior acceptance been withdrawn sellers.1 The theory second on recovery could be based the sellers had committed a by concealing fraud latent defects the foundation of the dwelling house. The third theory recovery effected, said, on which could be the court was that the writings evidencing *12 parties failed to the satisfy requirements of the statute Thus, frauds. the told court the “... the conten- jury third plaintiff tion of that is the statute of frauds was not completely this particular transaction, within being it [sic] estate, and, therefore, sale of real complied since it was not plaintiff with the is entitled to back money paid receive down after the bid at auction.” The court also the jury told agreement that estate, an for the sale real to comply frauds, with statute of signed had to by buyer be both necessary implication and seller. The of these instructions the buyer permitted that should be to recover her down payment and the sellers’ counterclaim should be disallowed agreement unless signed had been not only by buyer 1. The record does not disclose that the sale “without reserve.” Estate, See: Brereton 48 A.2d Restate- (Second) 28(1). ment § Contracts
but also or by agent sellers their duly authorized in The writing. jury returned a verdict which reimbursed the part i.e., of her payment, $3,500.00, down and denied recovery on the sellers’ counterclaim. Post-trial denied, motions judgment were was entered on the verdict of the The sellers jury. appealed.
The sole issue on appeal appellants’ defined “State- Question ment of Involved” as follows: “Whether the court below erred in instructing the that the provisions of the statute of frauds must complied with where the causes of action pled damages were for incurred as a result of breach of an to sell/buy real property?” Appel- argued lants and in their orally brief that the trial court’s incorrect, jury instructions had been and had erroneously applied the statute of frauds to the causes of plaintiff both and defendants.2 This requires that we review the correct- ness of the trial court’s jury instructions as they pertained to the statute of frauds. duty Our review court’s curtailed, contends, instructions is not as the majority the fact in preparing their the appellants, brief 2119(a), compliance Pa.R.App.P. with placed only an abbre- form of “question viated at involved” the head of their argument.3
My review of the trial court’s instructions to the jury regarding the statute of frauds discloses that the trial court fell into serious requires error which that a new trial be The granted.4 statute of frauds is an affirmative defense argument 2. This is appearing page illustrated on 14 of the appellant’s injection brief that of the statute of frauds ”[t]he into the case, trial of the which did not control either the Plaintiffs or the case, only Defendants’ remedy.” was reversible error and a new trial is the majority’s argument contrary appears (At 3. in footnote 3. 330). p. appeal 4. Inasmuch as the sole issue on is the correctness of the trial regarding court’s instructions helpful the statute I find it neither *13 hold, does, appropriate majority nor to as the that it "will not disturb the trial court's resolution of the issue” of a latent defect in the (At 337). p. basement wall. Because the issue party is not which ultimately prevail, inappropriate suggest, should I find it also to as the
341 Haskell judicial remedy. which to afford a authority limits Heathcote, 184, 188, (1949). v. 71, 363 69 A.2d It Pa. 73 does those land relating not render void contracts to which are to comply require- oral or fail with statute’s formal Zlotziver, 302, ments. Zlotziver v. 299, 49 Allison v. 779, (1946); 455, Pa. Montgomery, 781 107 460 Industries, Inc., Steel v. Tri State (1884); Corp. Bethlehem 461, 467, 1236, (1981). 290 434 A.2d The Pa.Super. 1239 purpose protect of statute of is to landowners frauds guard against perjuries support alleged and them of oral Moodhard, v. to 341 Williams agreements convey. Pa. 101, Urling, v. 273, 280, (1941); 104 328 19 A.2d Pa. Sferra Reinbold, Brodhead 161, 168, 422, (1937); A. v. 195 426 200 618, 229, (1901); Bishop, v. 623, Pa. 50 A. Tripp 230-231 56 Pa. 429 The statute of has frauds been de- to Gerlock signed prevent to not them. encourage Gabel, v. 471, 477, Haskell (1955); Pa. 112 A.2d 81 380 Heathcote, v. supra; Haines Minnock Construction Co., 209, 216, Lehner Pa.Super. 433 A.2d Montgomery, 493, 500, Pa.Super. 119 A.2d Simplex Industries, Biehl, Precast Inc. v. In (1959), Pa. 149 A.2d Justice stated: Musmanno
Ever since that statute venerable was armed with au- thority to of prevent understandings assertion verbal land, title to it has been to regarding upon called strike agreements down which not to writing. were committed purpose guardian laudable of this of truth is to prevent and however, frauds perjuries. Occasionally, property embattled or prospective purchaser owner land, summons statute enforce a condition which does not seem to coincide principles honesty with fair In such the Courts dealing. study cases should situation involved make certain that the statute is not does, majority ”agree[s] it with trial court which denied appellant’s granted appellee’s counterclaim and claim for the return (At 337) payment” p. any her down and that "the record is devoid of support appellee evidence would a conclusion that the breach- through ed the or otherwise contract secured contract use of 336). (At p. fraud.” *14 342
being perpetrate used to fraud and perjuries rather than prevent them.
Id.,
108-109,
395 Pa. at
vein,
cannot used to support be a cause of action to recover a down payment voluntarily pursuant made to a valid oral Roesch, contract to land. purchase 435, Roberts v. 440, 870, (1932). 159 A. See also: Ferrara, Brunetto v. 568, 571, 448, 167 Pa.Super. 76 A.2d case, In the instant appellee made a voluntarily deposit or down payment signed agreement to purchase real estate. if the agreement Even failed to meet the formal requirements of the statute appellee was not entitled to use the statute of frauds as a sword to recover the down thus made. payment When the trial court in- otherwise, structed jury it fell into error.
The trial court told the jury
appellee-buyer
that the
could
payment
three,
recover her down
on any
separate
one of
theories. The
did not
special interrogatories
answer
Thus,
returned a general
but
verdict.
there is no
inway
which a reviewing court can ascertain whether or not the
verdict
jury’s
was based on the erroneous instruction that
could
on
recovery
be based
a failure to achieve full compli-
ance
the formal requirements
with
of the statute of frauds.
Consequently,
new trial
is necessary. Rivera v. The
Philadelphia Theological Seminary
St. Charles Borro-
meo, Inc.,
The trial court’s of the statute of frauds to the pertained applicability The statute of frauds found in the sellers’ counterclaim. § § 1 Sm.L. 1. It Act March P.S. of sale require signed by does not a written both rather, requires, writing The statute that the parties. making creating so or interest in signed by “the [the *15 agents, lawfully real or their thereunto authorized estate] DiRocco, 302, by writing.” Id. See: DiBenedetto v. 372 Pa. 305, 474, (1953); Titus, 93 A.2d 475 Stevenson v. 332 Pa. (1938); 100, 105, 853, Carrara, 2 856 Stephens v. 265 107, 821, Pa.Super. 102, 401 A.2d 823-824 The of frauds is to purpose prevent perpetra- of the statute the tion of the of fraud where owner real estate has not agreement made a or to actually conveyance sell. Lehner 493, 500, 626, Pa.Super. 119 A.2d Montgomery, A and pleadings review of the evidence this case $45,- buyer making discloses that the admitted a bid contended, however, 500.00. She that her admitted bid constituted offer merely an which could be withdrawn be- event, fore it and in accepted. any Moreover she contended, fraudulently the sellers had concealed the deteri- orating condition of “the substructure and foundation of the appellant house.” The sellers admitted the au- similarly of their to sell. the thority agent They argued existence the agreement signed by buyer wrongful written and a failure the to her by buyer perform agreement.
Competent foregoing produced evidence of the facts was and to If the jury. appellee’s submitted found that merely prior bid was an offer which had been withdrawn entitled to her In acceptance, appellee deposit. recover event, agreement, there was no and could appellee If liability agreement, have no to the sellers. there was an agreement could avoid the if the sellers had appellee fraud- ulently building. concealed the deteriorated condition of the avoidance, however, agreement The was not subject the auctioneer’s had merely authority because to sell not been by evidenced a prior agreement written signed by sellers. sellers, who are the intended to be protected by statute of have admitted the au- thority the auctioneer. The buyer personally signed the agreement of sale. Under these circumstances, the statute of frauds could not be used by buyer to repudiate a valid agreement which she had executed for the purchase of real estate.
If the agreement for the sale of real estate was legally
and properly signed
buyer
seller,
but not
seller was entitled to
enforce the
against
buyer
though
even
the statute of frauds may
prevent-
have
ed the
from
specifically enforcing the contract
§
against the seller.
372(1)
Restatement of Contracts
5,
Illustration
incorporated
now
into
(Second)
Restatement
§ 363,
of Contracts
comment c. See: Driebe v. Fort Penn
Co.,
314, 319-320,
331 Pa.
Realty
62,
200 A.
(1938);
64-65
Guzzi
Czaja,
Pa.Super.
63 A.2d.
(1949). See also:
Eisenthal,
Erkess v.
47 A.2d
§§
5A
Corbin on Contracts
1192. “Mutu-
*16
of
ality
obligation is one thing and
of
mutuality
remedy
another.” Driebe
Co.,
v. Fort Penn Realty
supra, 331 Pa.
at
Argued Jan. 1984. Filed June 1984. Appeal Petition for Allowance of Denied Jan. 1985. *17 merely frauds. The contract statute of not invalidated because the remedies of the are not mutual.