*1 Richmond A. v. Al. Et III, Lawrence William S. Mundy, Hesson, Et Al. 2, 1974.
December No. Record Present, All the Justices. appellants. Janow,
Lawrence Rosenberger, (J. Spies, Wyckoff; E. B. Wm. Jr. Richard brief) appellees. opinion
Compton, J., of the court. delivered the purchasers’ appeal court’s denial of the reviews the trial This specific performance request of a contract for the sale of real into existence the exercise of an which came estate purchase. Mundy, Mundy, plaintiffs, III, William S. and Patricia W.
The equity they properly alleged wife, bill in in their option agreement two tracts of exercised Virginia, County, defendants, from the in Amherst land Lawrence Mundys Hesson, T. his wife. A. and Martha acceptance option, a valid their asserted they created, sale was have been contract of and enforceable willing contract, that the sellers have option agreement contract, and sales .refused therefore, have the and, are entitled to specifically enforced. granting answer, *2 the the
In the defendants admitted their plaintiffs option, properly option, exercised the denied the plaintiffs ready willing were or and denied that the able or price according purchase agreement. to the terms of the the hearing terms, chancellor, ore the in a After evidence opinion, defendants, found in favor of the we written and granted purchasers appeal the final an decree which performance. denied
Mundy, attorney law and member of the since at bar personally acquainted with the “for a had been Hessons property long since he had hunted twenty time” and familiar “every larger over years. other foot” of the tract about days prior option in to the
Several execution question, Mundy Riverville, went to see Hesson at his store in Virginia, and if sell the Ranch Tract asked Hesson would consisting without of 842 acres. Hesson refused to sell Ranch separate parcel selling property, acres. the store about three though Mundy the store which Even interested goods it, $4,000 worth of nevertheless Hesson said agreed option. price $75,000 set to include it in the goods. stock of and for the store and its Ranch days option and in several returned with drew agreement was wife Hesson’s Hessons where the executed store changes July After handwritten option provided: typed request, at Hesson’s draft made “OPTION undersigned, Grantors, referred to as “We, hereinafter ($10.00), receipt of which Ten Dollars
in consideration of give grant acknowledged hereby hereby sell, unto and do Mundy, Mundy, Grantees, III, W. S. Patricia William property right option to that certain exclusive Magisterial District, House the Grantors in Court owned County, Virginia, particularly as described and more Amherst follows: 4 lying Tract Ranch as the less, and known or acres, more 852 Virginia, a 3-acre Amherst,
between Riverville being at Riverville
tract better known as Hesson’s store and appurtenances privileges belonging all thereunto price Ninety-one ($91,000). and for the at Thousand Dollars days option si-x--(6) period This shall remain in effect for a during months from the thereof, date which time the Gran- may tees exercise this “Said will exercised include the stock trade in approximately Store, Hesson’s $4,000, valued at and all equipment necessary operation fixtures and other store premises including of said store and now located on the said Jeep scales, but not coolers, limited to freezers and truck--. Should the be exercised it wiiHnclude also of lire' all logging equipment possession now of the Grantors including trucks, but not limited to saws and crawler tractors. agree may upon “Grantors the Grantees enter inspect or to test the soil or other conditions at *3 during time the term of this Should Grantees exercise option, this credited the consideration mentioned above shall be
against purchase price specified property. option In the event that the Grantees exercise this agree Grantors to deliver unto the Grantees a General Warranty In Deed. the event that the is exercised the agree Grantors to allow Grantees a reasonable time to have Title examined and should defects be found Grantors agree remedy period to them within a reasonable of time. following signatures day “WITNESS the and seals this 24th July, 1972.” requiring change sixty days, When from six to months Mundy sign place up Hesson told that he “wouldn’t for no six give sixty days months, [he] would him and that was all.” Nothing was discussed about the manner and method of purchase price. Mundy represented to Hesson and plenty money” father-in-law, nonresident, that his that “he could cash a “had get contemplating wanted,” Hesson, all he so inquiry Mundy subject. transaction, made no on that Mundy 12,1972, On wrote Hessons as follows: “Dear Mr. Mrs.& Hesson: Mundy, notify you III and Patricia “This S. is to William Mundy option to
W. wish to exercise their by you property described an OPTION owned certain dated property July 24, is 842 1972. Said acres Hesson’s Store. up undersigned get set in touch
“Please copy go A the transfer. the mechanics of over date necessary may your so that Title Search be Deed is also closing.” prior to made Mundy’s September 19, 1972, went alone to office
On ready up him.” was Hesson stated to “settle property, day by delivery deeds of the executed on that prepared. although had He had the old deeds the deeds not been parked conveying property car the seat of his him under Mundy’s that he could had office. Hesson testified have outside the deeds pay
prepared in an hour been 91,000 $91,000. that “I asked about the He further stated scrape up $20,000.00. I told he could then So said all 20,000 $20,000. . . me ‘no on He wanted to him that I deal’ agree places at him and I wouldn’t deed the would Mundy’s office and there was all.” Hesson then left more than two months between the communication thereafter. begun
During August to circulate in the rumors had being development planned for area about industrial “nobody actually although area, Riverville Hesson testified plans] anything [definite until sometime about the knew December.” considering During 1972, Hesson, the transaction the Fall of property, pulpwood continued ended, to cut from continued granted October store to sell merchandise party store which to a third never exercised. letter, Hesson, a cover mailed without On December *4 prepared question property in to the
drafts of deeds attorney Mundy’s request. at examined the title who had plant coming in.” “the was he then knew admitted that Mundy: 14, 1972, wrote December On Stark, “Dear option you. as of terminated Your deeds from
“I received two you got September authority where 24th, I know don’t returning up Therefore, I am deeds. these to draw them.” Mundy replied by stating: 15, 1972,
On December letter Mr. Hesson: “Dear by you,
“By 12, 1972, I and received letter dated question. option I am sure that exercised the you on the land telling your you to will remember me that talked shortly option was in order to exercised Accountant after you taxwise. find out what were the best terms for delivery by you option for to me a General “The called question. Warranty property in As no Deed was so Deed to the copies and had I without the delivered had title checked up you drawn to save some trouble. the Deeds today recording option copy of the letter “I am by you beginning request exercising I see that the it. am to basically something day payment in full as of settlement you payments suggest me off. I that take to scare would still liability.” your period years in order to reduce tax over response again letter and wrote Hesson made to this 20,1972 as follows: on December Mr.
“Dear Hesson: upset every happen run time I to “I amazed and am still conveyed you hope your the idea I I to last letter. that across in expect reply you my I the land transferred to have me. you real the terms failed to
“As presenting copy option by of Deed to me a Deed or a estate question, searched, I I have the title so that could the land up. you I I drawn Deeds that sent and had the went ahead not you authority; only trying your trying usurp save t some trouble. in the described have the real estate
“I intend suggest myself conveyed I and Pat. would you you I sent are and the letter that think you you your upon legally binding take them wife opinion. Attorney I wait until would not to an my expect no later hands I to have to do it. last minute properly and executed drawn than December I will be in the described Deeds to you you happy returned send the ones than more happy arrange I will also be to me. personal your suit would best in whatever fashion the land taste or tax needs.
391 September “By 12, 1972, the was letter dated the only you your hope will do what heart exercised. I can your says pocketbook right If under and the land transfer you will make wins the I be forced to battle land.” transfer the complete by any
Nothing done thereafter was January 19, was filed on the transaction and suit assignments The two main issues raised of error are: ruling option agreement did the err in trial court incomplete was and because uncertain all of the essential finally definitely terms settled; of the contract were not and executory and, a valid contract the sale of the real denying specific created, estate performance did err in was the trial court plaintiffs able, reason that the were not ready, prompt, eager perform willing and the contract. plaintiffs in are correct their contention
We will assume it was that the was valid converted September binding executory 12, 1972, into letter purchase price providing of the cash contract September question 12. The within a reasonable time after remains, plaintiffs however, entitled to have the whether the are they specifically not, and We conclude are contract enforced. litigant properly trial so held. “In order for a avail court remedy performance, ‘he must himself show eager ready, prompt, able, that he has been perform part. remained on his He must not have the contract quiet himself as to or abandon the or held aloof so enforce ” might advantageous.’ prove Jordan, Reutt contract as events (1967). 197, 207Va. 153 S.E.2d 200 presented plaintiffs contend sufficient ability, eagerness proof compelling to show readiness their were contract. But there direct conflicts example, Mundy elements. For evidence on these essential stages he had at all transaction testified that material ability cash, $91,000 because his advance to him to had made a commitment father-in-law purchase price. Hesson, hand, that on the other testified on “scrape up” September all could told him that 19 stating additional did not want to seek $20,000 cash, funds him. The father-in-law prior indebtedness to father-in-law because testify any there nor was did purchase price deposited evidence that funds to cover the Mundy’s deposit account; made nor was escrow delay excuse his Hessons’ benefit. seeks performance by saying that Hesson told *6 “get me that he would after he talked to his back touch implications tax accountant” to decide on the income of an says, however, he never installment sale. Hesson considered years an installment sale because several before he had investigated arrangement then it such an and decided would not be beneficial. obviously eager Mundys
While were they because on September larger 21, 1972, sell the tract for contracted to Clayton Bryant Branch, D. C. and Charles conclusively that at no time from nevertheless the record shows plaintiffs September the date suit was filed did the 19 to unequivocal tender in cash to the ever make an Hessons or close the transaction with a cash specifically they ever state to the Hessons that payment. Nothing was payment. 12 said the letter of about suggests an installment sale. The The letter of December 15 payment “in fashion December 20 letter refers to whatever — nonspecific your personal taste or tax needs” would best suit vague possible payment. reference cash This was made August development and even after the rumors of industrial ripened attendant increased land value had into known fact. determining questions The of fact on decree of chancellor weight conflicting ore tenus has the same as the evidence heard permitted plainly jury, will stand unless of a and it be verdict support wrong evidence to it. Crowder or without (1961). 871, 875-876, 121 Commonwealth, S.E.2d 202 Va. record, the trial court’s decision a review of this entire From ready, prompt, eager plaintiffs able, were not price purchase a reasonable cash within plainly wrong September 12, 1972, or without is not time after support it. evidence to performance denying specific is therefore
The decree
Affirmed. dissenting. J., Harrison, specific performance. reverse and decree
I would Mundys by and the Hessons The executed Mundys acceptance within fide of it valid, made a bona and the thereby executory prescribed. contract for became an time It the the sale of option party. and enforceable either sixty-day option period require within the did not tendered, title be executed and deed from the sellers money paid. contemplated It and the examined the perform a reasonable time thereafter which have respective required to close the transaction. acts Mundys September 19, 1972, notified the a week after the On option, exercise their Hesson testified that sellers would Mundy’s up with him”. The went alone to office to “settle purpose overwhelming was not that the of this visit evidence is transaction, the details in necessary or even to work out fact to close closing. Clearly it was and incident to such repudiation preliminary the contract the sellers. to a bring wife told “to that when he left home his Hesson said Accordingly sign *7 91,000 her the deeds”. if he wanted to back Mundy’s demanded the immediate walked into office and Hesson option “The $91,000. He testified: him in cash of to [Mundy] I came I him that was what and told called for “I him testified: told he didn’t have it.” Hesson further for and the $91,000.” he deal was off unless had the Mundy prepared when he a deed to to execute Hesson was not September wife did not 19th. His office on went to the latter’s accompany lawyer engaged to write the deed. a him. He had not bring He him to the office. said his old deeds with And he did not why they he left When asked under the seat of his car. were going buy my replied: “Well, what he was there, I wanted to see he them people say. tried to or more There was a dozen to have to place money When and I didn’t sell it.” didn’t have the Mundys agreed he answered sell to the reminded that he had go, revealingly: “I let that one either.” didn’t again Mundy day with Hesson never communicated From that person writing. He further effort to made no or Mundy, 1972, December with and on with his contract him, with the sent deeds that returned the two September option 24, 1972.” as of “Your terminated observation: repudiated the terminated Hesson Conclusive fact that thereafter 19, 1972, is the on contract disregard complete his contract with with his dealt thirty days Mundys. thereafter, Within about option party granted to a third October, 1972, he covering portion under to sell the he was contract the land Mundys. Mundys part delay on the of thereafter undue There had been Shortly they purchase. exercising their
after employed attorney, Livingston, an to examine M. Richard property. The title was examined this title to the Hesson reasonably attorney never do so. The Hessons as he could as soon Mundy, they agreed copy to execute. the deed submitted thinking expected prepare possibly the sellers .that they Livingston prepare them, and were mailed deeds, Mr. were on returned Hesson. It was these deeds December bringing prior
Thereafter, a suit performance, Mundy Hesson, tried close the transaction offering desired, manner land in that Hesson specific performance needs. The suit for or that suited tax approximately filed four months from the time the Considering the nature and size of was exercised. delay Mundy’s part. transaction, Commonwealth, there was no See Crowder (1961). 871, 121 E. 202Va. S. 2d 487 ground denying Mundys’ specific assigned The sole they performance able, have not shown that is prompt, ready, eager willing the contract on part. holding disagree. It with I their Mundys had made There was credible evidence that arrangements Mr. to finance their Hessons. attorney Virginia, Mundy, practicing Monroe, with offices testified, wife and there corroboration. It is and his so ready, was not and anxious to inconceivable that September 21, 1972, On he entered into the transaction. close *8 property by portion agreement of a covered sell deposit cash, $5,000 $132,000 a cash was made to his real Mundy may only readily agent. $20,000 had have While estate proof he was could this available on upon $91,000 thereafter and within a reasonable time not raise prospective contrary, by a On the of a deed Hessons. tender needing transaction, $20,000 who had to close a borrower having of an market value a of land established cash and tract by any in the institution $132,000, would be financial welcomed making business of loans. advising Mundy penalized for
Further, should not be way to result in a which the could be handled of a transaction prior savings. that, fact is the Hesson’s tax Overlooked gave, option he there was no occasion disenchantment with the They length. these to deal with each other at arm’s long personal performed legal had had been friends and services for Hesson.
Notwithstanding Mundy ready, willing and able to attempt comply contract, his and did with close the by purchase money transaction, a tender of the him to Hesson necessary not in view of the actions of the sellers. puts default, “If the in an defendant himself attitude resists performance, that he is not insists bound unnecessary. him It contract, tender is serve no could purpose far he is and would be mere so as concerned purposeless formality. Equity conduct, not on does insist Consequently, disregards required all mere formalities. plaintiff place himself in favor with in such case is that the proper may court, done a offer the pleadings.” and this 71 Am. Jur. be p. Specific 66,§ 2d Performance Mundy’s September 19, out office When Hesson walked thought the whole transaction. His 1972, he had terminated he subsequent with belief. He this action was consistent course of convey prepared, deed or offered never had a suspected warranty. general even Had he believed or unwilling Mundys $91,000 cash, or unable to only them reasonable time title had to allow purchasers a deed and demand examination, then tender put Mundys day have definite. This would settlement on Instead But Hesson did do. their mettle”. “on party gave promptly and then sat back and affirmative This actions awaited law suit. contrasted purchase. looking closing toward Gratt.) (17 (1867), al., Dobson, White v. et 58 Va. was a performance for the sale of land. a contract suit alleged reason, Dobson, refused without White allegation, denied the sell. Dobson with his wholly things, alleging, among failed to do that White other having obligations contract, so under court, from it. The failed, that he was absolved insisted Dobson Judge Joynes, through speaking said:
396 opinion is no
“The is of that there sufficient evidence court filing appellant, case, of his bill in this that before the the appellee alleged notice, in the answer of the as received willingness appellee Dobson, the of the said William fulfill part, the bill mentioned. And as on his contract appellee appellant the said notified of his inten- contract, tion the court is further of not to fulfill the said opinion appellant that was entitled to file his bill for specific making the said execution of contract without appellee provided tender the said of the securities therein; and that therefore the decree Circuit court dismissing appellant the bill of the is erroneous.. ..” 58 Va. Gratt.) (17 at 265. Major (1954); Price, 526, v. Va. E. 2d
See also 196 84 S. 445 (1918);Matney Jackson, 280, v. E. v. 123 Va. 96 S. 237 Wolford (1914); Nyder Champlin, Barnes, E. 116 Va. 82 S. 801 (1948). 317, N. E. 401Ill. 81 2d 923 Hopkins, 369, 373, Bateman v. 157 N. 73 S. E. C. (1911), point. quoted Pomeroy is a case The court there Contracts, 1407, § as follows:
“ either of the ‘The is fundamental that doctrine specific performance against seeking show, the other must remedy, obtaining precedent he that to his as a condition ready willing do, all do, is then or offered to or has done by required and material acts the essential commencing suit, and also the time of at required willing be all such acts as shall to do he is according its execution of the contract him in the of terms.’ ” addressing it was then, the facts the case itself to The court considering, said: by money was waived tender of the in this case the “But plaintiff jury
defendant, ready, have found and the part with his of the able, not, did not have he was in the sense contract. If reach, money so that he could control and within his under his pay put over to the at on it and it his hands defendant put him in moment, has not default defendant ‘cutting plaintiff right tendering land, thus s a deed fof ’ existing, How can as said above. contract as still to treat the judgment respect, of the hurt, in be the defendant money plaintiff assured, court? The must it into court before is entitled receive the (Italics supplied) deed.”
In the Bateman the said: case court further following special upon subject,
“The are rules the which ‘(1) by plaintiff seem be An to settled: actual tender the is unnecessary when, from the acts of the defendant or the from property, wholly nugatory. of Thus, situation the it would be openly perform, plaintiff if defendant has refused to the need enough demand; not a tender or make it is that he is and willing pleading. [Citing and offers to in his including supra.] (2) Dobson, numerous cases White v. Where — stipulations dependent the and is, are mutual where — upon price payment the deed is to be delivered by party necessary put actual and tender demand one is right default, other in and to cut off his to treat the contract as ” subsisting. 372-73, still . . .’ 157N. C. at 73 S. E. at In the instant case the conditions of were mutual dependent. payment money and There was to be of by buyers delivery without the of an executed deed Mundy’s right Therefore, sellers. if Hesson desired cut off subsisting, treat as contract still under Hesson was obligation good general to tender a and sufficient deed with warranty having Mundy of title after allowed a reasonable time for title examination.
Manifestly September 19, Hesson’s actions on 1972 did not compliance a man constitute terms No normally expect $91,000 reasonable would have readily any office, in his or available; cash even or purchaser of real would title estate surrender without a being receipt good, examination and without valid However, deed sufficient position throughout sellers. it has been Hesson’s paid this case that he should have been during sixty-day option period, $91,000in cash that since paid upon cash, demand, he was the “deal his then position was off”. His responsibility that he was absolved from obligation buyers following his or to the being This confrontation with Mr. 19th. part comply having nothing true, on his own done sell, equity, entitled, in a he is not court ready, argue and able to was not part with his of the contract. ability Hopkins, supra, Paraphrasing Bateman
Mundys pay be hurt issue, Hessons how is the can money performance? decree of Mundys are it into court before must assured for the special Hessons, or from a from the a deed entitled to in their behalf. commissioner join J., dissent.
I’Anson, C.J., Cochran,