618 A.2d 1293 | Vt. | 1992
This appeal arises out of a contract dispute between plaintiff-buyer Mary Jane Marchelewicz and defendant-seller William Wehner for the sale of Chipman Point Marina on Lake Champlain. The parties executed a purchase and sale agreement, but the transaction was never completed. Buyer sued seller to recover her $25,000 deposit on the property, claiming breach of contract, or in the alternative, unjust enrichment. Seller countered that buyer’s failure to give timely notice of her desire not to go forward with the sale justified retention of the deposit. The case proceeded before a jury, but the trial court directed a verdict for defendant on the notice issue. It entered judgment in defendant’s favor after a bench trial on the equitable issue, concluding that seller had not been unjustly enriched. Buyer appeals these rulings. We reverse and remand for a new trial.
Buyer signed the purchase and sale agreement on August 4, 1988. The contract called for closing on or before September 30, 1988, and required a deposit of $25,000. It also included the following mortgage contingency:
*312 If, despite the best efforts of the Purchaser, the Purchaser is unable to obtain, by no later than . . . August 30, 1988, from a bank or similar financial institution ... a written commitment for a mortgage loan to finance the acquisition of the Property, with funds to be available for disbursement on or prior to closing Date, . . . THE PURCHASER SHALL HAVE THE RIGHT TO TERMINATE THIS CONTRACT AS IT RELATES TO THE MORTGAGE CONTINGENCY BY GIVING NOTICE TO THE SELLER NOT LATER THAN ... 72 HOURS AFTER SAID DATE AND TIME.
(Emphasis in original). Thus, according to the contract, buyer had to give notice not later than September 2,1988, in order to terminate the contract. The “Terms and Conditions” printed on the form’s reverse provided:
Default: If the purchaser shall fail to complete said purchase as provided herein, or is otherwise in default, the Seller may terminate this Contract, retaining all deposit money as agreed and liquidated damages, or may pursue the Seller’s rights to all legal and equitable remedies provided by law....
The total purchase price was $625,000, and buyer sought financing for almost the entire amount. The agreement expressly provided that notices could be given orally. Because seller is deaf, buyer communicated exclusively with Calvin Robinson, seller’s listing agent. Robinson drafted the agreement and retained the deposit.
During August 1988, buyer applied to commercial lenders at two banks for mortgage financing for the purchase. Unremarkably, both institutions required financial information about the marina before considering a loan. According to her testimony, she repeatedly asked Robinson during August for the records showing the historic financial performance of the marina. On August 29,1988, because she had not received the pertinent records necessary for financing, Robinson prepared an “Addendum to Purchase and Sale Contract” which would have extended the deadline for satisfying the mortgage contingency until September 13, 1988. He obtained buyer’s signature, but seller refused to sign it because he did not wish to extend the September 30 closing date.
Buyer testified that before the September 2 financing deadline, when she learned seller had not signed the extension agreement, Robinson urged her to continue trying to obtain financing for the purchase after the deadline “and see if we can’t pull this together for September 30th.” She replied, “If we do this without his signing, will my deposit be in jeopardy?” According to buyer, Robinson answered, “No.”
Plaintiff argues that the trial court erred in directing a verdict for seller. We agree. Plaintiff produced enough evidence on the factual issues of Robinson’s authority to bind seller as his agent and of “termination notice” to reach the jury.
In determining the propriety of a directed verdict, this Court must view the evidence in the light most favorable to the nonmoving party, excluding any modifying evidence. See Smith v. Gainer, 153 Vt. 442, 445, 571 A.2d 70, 71 (1990). Buttressing deference to the nonmoving party in this case is the rule that courts should narrowly construe forfeiture clauses. See Champlain Oil Co. v. Trombley, 144 Vt. 291, 297, 476 A.2d 536, 539 (1984) (breach of a forfeiture provision must be more than “trivial or technical”).
Whether Robinson’s agency extended to the authority to bind the seller was not seriously contested at trial. Such a determination, however, is a question of fact proper for the jury’s decision. Estate of Sawyer v. Crowell, 151 Vt. 287, 292, 559 A.2d 687, 691 (1989) (“existence and extent of an agent’s authority is a question of fact”). Seller made all his communications with buyer through Robinson and, according to buyer, Robinson made representations and behaved as if he were speaking for seller. Because of this evidence, this factual issue should have been left to the jury.
Reversed and remanded.