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WILLIAM A. WILSON v. ROBERT LA VAN (05/16/68)

COURT OF APPEALS OF NEW YORK 1968.NY.41688 <http://www.versuslaw.com>; 238 N.E.2d 738; 22 N.Y.2d 131 decided: May 16, 1968. WILLIAM A. WILSON, RESPONDENT,v.ROBERT LA VAN, JR., ET AL., APPELLANTS Wilson v. La Van, 27 A.D.2d 802, reversed. Counsel Salem G. Mansour for appellants. Anthony L. Pusateri for respondent. Chief Judge Fuld and Judges Scileppi and Breitel concur with Judge Keating; Judge Bergan dissents and votes to affirm in a separate opinion in which Judges Burke and Jasen concur. Author: Keating


Wilson v. La Van, Chief Judge Fuld and Judges Scileppi and Breitel concur with Judge Keating; Judge Bergan dissents and votes to affirm in a separate opinion in which Judges Burke and Jasen concur.

Author: Keating

 On April 20, 1947 William Wilson and Robert and Hazel La Van allegedly entered into an oral contract for the conveyance of a certain farm property owned by the La Vans. The property consisted of some 171 acres containing a main residence and garage, a tenant house, a large barn, a shed, a packing house, slaughterhouse and orchards. Under the terms of the agreement Mr. Wilson was to take possession of the property, maintain the buildings, pay the taxes and make the mortgage payments. The La Vans agreed to convey all but approximately one acre of the property, upon which stood the main residence and garage which they occupied, after the mortgage obligation was satisfied.

In accordance with the terms of the purported agreement, Mr. Wilson took possession of the property in 1947 and farmed and operated it for his exclusive benefit. He paid the taxes and by 1960 had paid off the mortgage. During that same period, he also made many improvements on the property. After the mortgage was paid off Wilson allegedly made numerous demands for the deed to be conveyed to him. The La Vans refused, but Wilson continued to work the farm, make improvements, install equipment and pay the taxes. Finally in 1965 Wilson commenced this action for specific performance of the oral contract. The defendants denied the making of the contract and, as an affirmative defense, pleaded the Statute of Frauds (General Obligations Law, § 5-703, subd. 1).*fn1

The Supreme Court (Niagara County) granted the relief requested and the Appellate Division unanimously affirmed. The defendants appeal by leave of this court. The issue presented by this appeal is whether the courts below were correct in rejecting the defense predicated upon the Statute of Frauds and granting the plaintiff's prayer for specific performance of the oral agreement.

There is no question that, under certain circumstances, a court will enforce an oral contract for the conveyance of real property. The principles governing the application of the doctrine of part performance in the area of real property were authoritatively determined in Burns v. McCormick (233 N. Y. 230, 232) where Judge Cardozo, speaking for the court, wrote: "Not every act of part performance will move a court of equity, though legal remedies are inadequate, to enforce an oral agreement affecting rights in land. There must be performance 'unequivocally referable' to the agreement, performance which alone and without the aid of words of promise is unintelligible or at least extraordinary unless as an incident of ownership, assured, if not existing. 'An act which admits of explanation without reference to the alleged oral contract or a contract of the same general nature and purpose is not, in general, admitted to constitute a part performance' (Woolley v. Stewart, 222 N. Y. 347, 351). What is done must itself supply the key to what is promised. It is not enough that what is promised may give significance to what is done."

Since Burns v. McCormick (supra) the courts of this State have, as one commentator has noted, "been most faithful in the application of the unequivocally referable rule" (Gilbride, The Part Performance Exception In New York, 26 Brooklyn L. Rev. 1, 2, 4, 8; see Gracie Sq. Realty Corp. v. Choice Realty Corp., 305 N. Y. 271; Rosen v. 250 West 50th St. Corp., 296 N. Y. 567; George v. Dobson, 287 N. Y. 675; Neverman v. Neverman, 254 N. Y. 496; Sleeth v. Sampson, 237 N. Y. 69; Kezer v. Seely, 236 N. Y. 567).

We believe that, in the case at bar, the part performance alleged in support of the plaintiff's request for equitable relief is not sufficient to overcome a defense predicated upon the Statute of Frauds.

The part performance is not "unequivocally referable" to an agreement to convey. While it is consistent with such an agreement, it is equally consistent with a landlord-tenant relationship. A lessee of the property who derived his livelihood from working the farm might have been as likely to make such improvements and purchases as an owner would. (Cf. Roberts v. Fulmer, 301 N. Y. 277.) Similarly the mortgage and tax payments could be considered as the plaintiff's rent for the use of the land. In fact, the plaintiff's total expenditures for taxes, mortgage and improvements during the period in which he had exclusive control of the farm were $1,500 less than the established fair rental value of the property. And plaintiff listed his expenditures for the payment of taxes and the mortgage as rent on his income tax returns. Under all these circumstances, we believe that the plaintiff failed to establish part performance sufficient to overcome the defense of the Statute of Frauds.

We would note in conclusion, as the defendants concede, that the plaintiff would be entitled to reimbursement for any improvements made in reliance upon the oral contract which enhanced the value of the property. (2 Corbin, Contracts, § 434; Foreman v. Foreman, 251 N. Y. 237; Leary v. Corvin, 181 N. Y. 222.) Whether an oral agreement was in fact entered into is, of course, a question of fact which has been resolved in the plaintiff's favor by the courts below. (Leary v. Corvin, 181 N. Y. 222, 230, supra.) Since the trial court did not consider the plaintiff's alternative request for "such other * * * relief * * * as [it] may seem just" we remand the case for such consideration.

The order of the Appellate Division should be reversed, without costs, and the case remanded to the Supreme Court for further proceedings in accordance with this opinion.

Disposition

Order reversed, without costs, and case remitted to Supreme Court, Niagara County, for further proceedings in accordance with the opinion herein.

Bergan, J. (dissenting). After a full trial on the merits at which the Justice at Special Term heard the witnesses and had full opportunity to assess their credibility, it was found that under an arrangement mutually advantageous to the parties, defendants orally agreed to convey a portion of land they owned to plaintiff after he had paid off a mortgage. Since this fact-finding was unanimously affirmed by the Appellate Division, the facts and their evaluation are not open to revision here on appeal.

Nevertheless, a majority of this court seems to be reversing the Appellate Division and the Special Term because it feels the "performance" of the agreement was not "unequivocally referable" to the contract which has been established. A similar term was first used by Collin, J., in Woolley v. Stewart (222 N. Y. 347, 351) and later adapted by Cardozo, J., in Burns v. McCormick (233 N. Y. 230, 232).

The old problem in equity is when to decide that justice and fairness require a party to be relieved of the statute's operation. Equity customarily addressed itself to the justice of the case according to how the facts were found to exist. But the facts themselves were left to be discovered according to the usual method of trial. This present case presents unusually good reasons, grounded in the practice in equity, why plaintiff should be relieved of the need to produce a writing.

There is no doubt that the proof meets all the court's earlier legal tests, especially the requirement of Woolley (222 N. Y. 347, 351, supra), in the language of Judge Collin, that the acts of performance must be "unequivocal" in their character and have reference to the carrying out of the agreement, or as Judge ...


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