Present: Carrico, C.J., Compton, Stephenson, Lacy, Hassell,
and Keenan, JJ., and Whiting, Senior Justice
JOYCE C. PRICE, EXECUTRIX, ETC.
v. Record No. 950802 OPINION BY JUSTICE ELIZABETH B. LACY
January 12, 1996
KYLE R. TAYLOR, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
John E. Clarkson, Judge
This appeal arises out of a contract for the sale of land
between Kyle R. Taylor and Fay L. Mirman, the buyers, and Joyce
C. Price, executrix of the Wallace V. Lankford Estate, the
seller. Taylor and Mirman filed a motion for judgment seeking
damages for Price's alleged failure to perform the contract for
sale dated April 2, 1993. Price filed a response asserting
that the contract was invalid because it was procured by fraud,
because it was subject to a condition precedent, and because it
lacked consideration. Following a two-day hearing, the trial
court entered judgment on a jury verdict awarding the buyers
$35,000 in damages.
On appeal, Price assigns error to the trial court's
rulings (1) holding that, as a matter of law, the contract on
its face recited sufficient consideration; (2) excluding jury
instructions on fraud in the procurement of a contract; (3)
admitting certain expert testimony; and (4) prohibiting parol
evidence that the contract was subject to a condition
precedent. For the reasons set out below, we will reverse the
judgment of the trial court and remand the case for a new
trial.
I.
Price first assigns error to the trial court's ruling that
the contract recited consideration on its face. 1 The relevant
portion of the contract states:
WITNESSETH: That for and in consideration of the sum
of N/A Dollars ($N/A) by N/A in hand, paid receipt of
which is hereby acknowledged, the Buyer agrees to buy
and the Seller agrees to sell for the sum of Twenty
thousand Dollars xx/100 Dollars ($20,000), all that
certain piece, parcel or lot of land . . . .
The italicized portions were handwritten insertions made by
Taylor in blanks on a prepared form. Price argues that the
language "in consideration of the sum of N/A Dollars" clearly
and unambiguously states that the contract required a payment
in cash as a form of consideration and that no such cash was
tendered by the buyers or received by the seller. Thus, Price
concludes, the contract did not recite consideration on its
face. We disagree.
First, the terms of the contract do not require that
consideration be paid in cash to create the agreement. More
1
Price's assignment of error also stated that the trial
court held that the contract was "valid and enforceable."
However, the trial court's order does not contain that
determination. The record further reflects that the trial
court refused to grant a motion for summary judgment filed by
Price on the validity and enforceability of the contract
because evidence on that issue was "anticipatory evidence as to
one of the issues of the case," and therefore, the motion was
"premature." The validity and enforceability of the contract
remained a subject for trial.
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importantly, it is well established that mutual promises in a
contract constitute valuable consideration. Adams, Payne &
Gleaves, Inc. v. Indiana Wood Preserving Co., 155 Va. 18, 29,
154 S.E. 558, 562 (1930); Bernstein v. Bord, 146 Va. 670, 677,
132 S.E. 698, 699-700 (1926); see also Brewer v. First Nat'l
Bank of Danville, 202 Va. 807, 815, 120 S.E.2d 273, 279 (1961).
The contract recites that "the Buyer agrees to buy and the
Seller agrees to sell for the sum of Twenty thousand Dollars."
This language reflects the mutual exchange of promises and
alone is sufficient to constitute consideration for the
contract. Accordingly, the trial court's ruling on this issue
was not erroneous.
II.
Price submitted five jury instructions which addressed her
contention that the contract was obtained by fraud. Price
asserts that there was sufficient evidence to support
instructions on this issue and that the trial court erred in
refusing to give them.
A litigant is entitled to jury instructions supporting his
theory of the case if sufficient evidence is introduced to
support that theory. Bowers v. May, 233 Va. 411, 413-14, 357
S.E.2d 29, 30 (1987). While a litigant must carry his burden
to show fraud in the procurement of the contract by clear and
convincing evidence, the trial court must give the jury
instruction on fraud unless the evidence is "clearly
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insufficient to support the theory." Provident Life & Accident
Ins. Co. v. Walker, 190 Va. 1016, 1028, 59 S.E.2d 126, 131
(1950). 2
Price testified that she signed a contract on January 9,
1993, agreeing to sell the property to Taylor and Troy M.
Evenson. She then testified that sometime in late February or
early March, Evenson approached her and asked her to sign three
blank contracts because coffee had been spilled on the January
contract. Price stated that she did not sign a contract dated
April 2, 1993, and that her signature on that contract was
forged. Finally, Price testified that she never negotiated
with Mirman for the sale of the property.
Applying the principles set out above, we conclude that
the evidence produced by Price to show fraud was sufficient to
support jury instructions on the issue. Therefore, we hold
that the trial court erred in refusing to instruct the jury on
Price's theory of fraud in the procurement of the contract. 3
III.
Over Price's objection, Taylor and Mirman introduced
testimony of three attorneys as rebuttal witnesses. Each of
2
Taylor and Mirman did not move to strike Price's evidence
on fraud as insufficient as a matter of law.
3
Price also complained of the submission of an instruction
to the jury stating that the mutual exchange of promises
constituted legal consideration for a contract. Because the
issue of the contract validity and enforceability remained a
jury issue, see supra note 1, submission of an instruction on
this issue was not reversible error.
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these attorneys testified that the contract was valid on its
face because it recited legally adequate consideration. Price
assigns error to the admission of this evidence, claiming that
the testimony was improper because the attorneys' statements
were conclusions of law prohibited by Code § 8.01-401.3(B). We
agree. This testimony that a contract was valid on its face is
not evidence regarding the existence of an offer, acceptance,
or consideration, but purports to state the legal consequences
of those factual predicates. Thus, the testimony of these
three witnesses was improper because it constituted conclusions
of law in violation of Code § 8.01-401.3.
IV.
Our conclusions regarding instructing the jury on
fraudulent procurement and admission of the attorneys'
testimony require reversal of the judgment of the trial court
and remand of the case. We note that one of the issues at
trial, the admissibility of parol evidence to show a condition
precedent, may arise again on remand.
The general rule in Virginia is that parol evidence of
prior stipulations or oral agreements is inadmissable to vary,
contradict, or explain the terms of a complete, unambiguous,
unconditional written contract. Shevel's, Inc. v. Southeastern
Assocs., 228 Va. 175, 182, 320 S.E.2d 339, 343 (1984). When a
claim is made under an unambiguous written instrument, however,
a signatory to the instrument may introduce parol evidence to
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establish a defense based on such doctrines as partial
integration, collateral contract, fraudulent procurement,
mutual mistake, or condition precedent. Id. at 182-83; 320
S.E.2d at 343-44; J.E. Robert Co. v. J. Robert Co., 231 Va.
338, 343, 343 S.E.2d 350, 353 (1986); Walker & LaBerge Co. v.
First Nat'l Bank of Boston, 206 Va. 683, 688, 146 S.E.2d 239,
244 (1966); Meadows v. McClaugherty, 167 Va. 41, 45, 187 S.E.
475, 477 (1936); Whitaker & Fowle v. Lane, 128 Va. 317, 345-46,
104 S.E. 252, 262 (1920).
Not all evidence alleged to establish a condition
precedent is admissible, however. As we stated in Walker &
LaBerge, the alleged "condition precedent must be neither
inconsistent with the instrument itself, nor of such a
character that its performance would render the instrument
wholly ineffective or nugatory." 206 Va. at 690, 146 S.E.2d at
244. Thus, in litigation involving the enforcement of an
agreement by a general contractor to waive its mechanic's lien,
evidence of an alleged condition precedent that the agreement
was effective only if the contractor had been paid in full was
inadmissible because a contractor has no mechanic's lien if he
has been fully paid; therefore, the condition of payment made
the agreement to waive the lien a legal impossibility, a
nullity. Id. at 692, 146 S.E.2d at 246. Payment under these
circumstances would negate any ability or need to waive the
lien because there would be no lien.
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On the other hand, in Whitaker & Fowle v. Lane, parol
evidence was properly admitted to show an alleged condition
precedent requiring certain action by a third party before a
contract for the sale of a residence was enforceable. The
buyer, a bank, was allowed to introduce parol evidence that the
purchase contract was conditioned on the amendment of a banking
charter and subscription of bank stock which would allow the
bank to move its headquarters. Whitaker & Fowle, 128 Va. at
346, 146 S.E.2d at 263. The terms of this alleged condition
precedent were not inconsistent with the terms of the purchase
contract, did not vary the terms of that contract, and the
performance of the condition precedent did not render the
contract "wholly ineffective or nugatory." These general
principles would be applicable if, on remand, Price seeks to
offer parol evidence of a condition precedent to the April 3,
1993 contract.
Accordingly, for the reasons stated, we will reverse the
judgment of the trial court and remand the case for a new trial
in accordance with this opinion.
Reversed and remanded.
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