(dissenting in part, concurring in part).
Defendants have appealed the judgment of the District Court ordering a rescission of a land sale contract between the parties unless defendant-appellant Brenton, the purchaser, complied with two conditions which would permit her to retain the property: (1) replat of the property, and (2) removal of all permanent structures and improvements.
I believe only two of appellant’s points require determination: (1) If the evidence supports the trial court’s finding of an oral agreement restricting the use of the land, and' going to partial consideration for the contract of purchase and sale, is it an enforceable agreement to build? and (2) Have appellants so used the land already as to make compliance with the alleged restrictive covenant impossible? The trial court’s finding of an oral agreement is the first matter requiring review.
The trial was to the court without a jury. Much of the considerable evidence introduced related to the acts and declarations of the parties, and tended either to establish or refute the existence of an oral contract requiring appellant Brenton to build a single-family dwelling on the lot she purchased from Hyders. Appellees-Hyder contended that Mrs. Brenton’s oral promise to build was memorialized by a typewritten notation on the deed: “One family dwelling — 2500 square feet exclusive of open porches and garage.” Mrs. Brenton insisted at trial and again on appeal that there, was no binding promise to build, and that the sole consideration for the conveyance of the land was stated in the option agreement (payment of $15,000), which she paid. At the time the quoted legend was typed on the deed in August 1975, she intended to commence building the following spring. Circumstances later prevented her from doing so.
The purchase of the property was initiated by appellant Brenton through her nephew and agent, David Meadmore, when on behalf of Brenton he signed an option agreement with Richard Hyder to purchase an empty lot adjacent to Hyder’s residence and directly behind the residence Meadmore shared with Martin, Brenton’s son. Shortly thereafter, Martin and Meadmore conveyed title to their property to Brenton. Upon the exercise of her option to purchase, the deed to the property was delivered by Hyder to Brenton, and it contained the notation cited above. Soon after taking title to the Hyder property, Brenton replatted the two lots, now in her name, and combined them into one residential lot. In contemplation of using the empty lot as a backyard for the residence in front, Brenton proceeded to have a seven-foot wall built around three sides of the combined lots, enclosing curbs, pillars and other landscaping for a formal garden.
The trial court found that the parties had entered into an oral agreement, which formed a material part of the consideration for the transfer of the Hyder lot, whereby Brenton agreed to use the property purchased from appellees as a residential lot for the building of a home 2500 square feet or greater in size.
Where the existence of an oral contract and the terms thereof are the points in issue it is for the trier of the facts to determine whether the contract did in fact exist. Nordin v. Zimmer, 373 P.2d 738 (Alaska 1962). See, Kirchner v. Laughlin, 4 N.M. (Gild.) 386, 17 P. 132 (1888); Coston v. Adams, 203 Okl. 605, 224 P.2d 955 (1950).
An appellate court may not substitute its judgment for that of the trial court so long as the challenged findings are supported by substantial evidence. Getz v. Equitable Life Assurance Society, 90 N.M. 195, 561 P.2d 468 (1977). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate support for a conclusion. Samora v. Bradford, 81 N.M. 205, 465 P.2d 88 (Ct.App.1970). In determining whether there is substantial evidence to support those challenged findings which are relevant, this court is guided by the following legal principles: (1) the reviewing court will indulge all presumptions in favor of the judgment; (2) the evidence will be viewed in the light most favorable to support the trial court’s findings and to the prevailing party; and (3) all unfavorable evidence will be disregarded. These rules apply equally even when the burden of proof on the prevailing party at the trial court requires clear and convincing evidence. Duke City Lumber Co. v. Terrel, 88 N.M. 299, 540 P.2d 229 (1975); United Veterans Organization v. New Mexico Prop. App. Dept., 84 N.M. 114, 500 P.2d 199 (Ct.App.1972); Samora, supra.
The record is replete with evidence of the expressions of Brenton’s intentions to construct a single family dwelling on the lot. I believe that the conversations between the parties as evidenced by the record provide sufficient support for a finding of an oral agreement. We may not weigh the evidence to reach a finding contrary to the trial court’s assessment of substantial evidence; fact-finding is the trial court’s prerogative, Duke City Lumber Co., supra.
It is true that the only consideration stated in the option contract for transfer of the land was a promise to pay $15,000, and Brenton fulfilled that promise. But there may be other or different consideration than that which is stated in the contract for the sale of land, and the existence of such other consideration may be proved by parol evidence. The general rule that parol evidence cannot be received to contradict, vary, add to, or subtract from the valid written terms of a contract is subject to the exception that if a written instrument fails to state the entire consideration, it may be shown by parol. American Institute of Marketing v. Keith, 82 N.M. 699, 487 P.2d 127 (1971); People v. Orekar, 22 N.M. 307, 161 P. 1110 (1916). The exception recognizes that there is no rule of law requiring all of the terms of an agreement for the sale of land to be found in the written option contract.
The exception is applied equally when the writing involved is a deed. Expression of its employment and its sustaining policy is found in 6 G. Thompson, Real Property § 3120 (1964 Repl.):
More or less than is expressed in a deed may be proved by parol evidence as the consideration, and even a different consideration, if valuable, may be proved. The effect of a consideration expressed is merely to estop the grantee from alleging that the deed was executed without consideration. For every other purpose it is open to explanation, and may be varied by parol proof.
In Fraley v. Bentley, 1 Dak. 25, 46 N.W. 506 (1874), although the only consideration stated in the deed was $500.00, the court found that part of the agreed consideration for the purchase of the land was vendee’s oral promise to build a sawmill on the land he had purchased.
I would affirm the trial court’s findings of an oral promise, since we are not at liberty to disturb those findings supported by substantial evidence, but then ask whether there exists an enforceable promise to build. If Brenton had done nothing at all with the land, would the Hyders have been able to enforce a promise to build by a decree demanding specific performance? I think not because of lack of specificity in the “agreement.”
There is no doubt that Hyder intended to sell and Brenton intended to buy the lot for residential use. In fact, the evidence supports a finding that it was the intent of all of the parties involved that Brenton build a home on the premises, with some degree of understanding resulting from her detailed description of its proposed size and style. Notwithstanding the existence of this “agreement,” courts do not enforce promises lacking in certainty, as this one is, against the promisor.
A promise, to be sufficient consideration for a return promise, cannot be “so vague and indefinite in its expression that it cannot be enforced. . . ” 1 A. Corbin, Contracts 615 § 143, (1963). With references to contracts as opposed to mere promises serving as the consideration for contracts, Professor Corbin analyzes the problem as follows:
A court cannot enforce a contract unless it can determine what it is It is not even enough that they have actually agreed, if their expressions, when interpreted in the light of accompanying factors and circumstances, are not such that the court can determine what the terms of that agreement are. Vagueness of expression, indefiniteness, and uncertainty as to any of the essential terms of an agreement, have often been held to prevent the creation of an enforceable contract.
Id. § 95, at 394.
There is difficulty in framing an invariable rule since “[v]agueness, indefiniteness and uncertainty are matters of degree, with no absolute standard for comparison. . In every case, the function of the court is to determine as far as possible, the intention of the contracting parties and to give legal effect thereto.” Id. at 396.
The promise which the Hyders seek to have enforced is Brenton’s assurance that she would build a home on the lot purchased, and that she may not use it for anything else. The terms of this promise would include the approximate size of the dwelling — 3300 square feet; the style— Mediterranean; and prompt commencement of construction. Two very important prerequisites to beginning construction were expressed by Brenton during the negotiations, namely, that she did not plan to begin building until Spring; and that construction of a new home was contingent upon the sale of her existing residence. Those contingencies, together with the fact that no time for completion of the project was ever decided upon, or even discussed, make her “promise” to build so indefinite as to render it unenforceable.
In reaching this conclusion I am cognizant of that branch of cases holding that time of performance is an essential term of an agreement, see Crawford v. General Contract Corp., 174 F.Supp. 283 (W.D.Ark.1959) and High Knob, Inc. v. Allen, 205 Va. 503, 138 S.E.2d 49 (1964). On the other hand, some courts have held that where no time is agreed upon for the completion of a contract, a promise to perform within a reasonable time will be implied. See 17 Am.Jur.2d 419-421, Contracts § 80. The presence or absence of an uncertainty in the time in which performance is required is determined according to the specific facts and circumstances of each case. Benham v. World Airways, Inc., 296 F.Supp. 813 (D.Haw.1969). In this case, Hyder had no desire to sell the property until someone bought it for the purpose of building a house upon it. He was not actively seeking a purchaser; it was Brenton’s agent who approached with an offer to buy. Because a residence on the property was appellee’s stated prime concern, the element of time for construction and completion is elevated, in this case, to the level of an indispensable term, and a reasonable time for performance cannot be implied.
Since a promise to be enforceable must be sufficiently definite as to both time and subject matter, Dale’s Service Co. Inc. v. Jones, 96 Idaho 662, 534 P.2d 1102 (1975); Parks v. Atlanta News Agency, Inc., 115 Ga.App. 842, 156 S.E.2d 137 (1967); Greer v. Stanolind Oil & Gas Co., 200 F.2d 920 (10th Cir. 1952), and Brenton’s promise to build a home of a certain style and an approximate size did not specify any details concerning the time within which the promise was to be performed and did not commit her in any way to complete construction within a stated time period, it cannot be enforced.
Therefore, I would hold that there was no enforceable promise to build.
Restrictive Covenant
Appellants also argue that the deed restriction is ambiguous and, consequently, must be construed against the grantor. They further argue that the restriction merely sets a minimum size if and when a home is built and does not require that the property be left untouched by the owner until such time. With this I agree. Nevertheless, there remains the issue of whether the use to which the property is put, in the meantime, can be of a nature to preclude the eventual use clearly intended by the parties.
We should be guided by the principle that in construing restrictive covenants the primary objective is to determine the intention of the parties. 3 H. Tiffany, Real Property § 858 (3rd ed. 1939). The “restrictive covenant” in this case is not a model of clarity or legal efficacy. Nevertheless, it is an expression of the prior negotiations and agreements which have merged in the deed. The New Mexico Supreme Court, in Hoover v. Waggoman, 52 N.M. 371, 199 P.2d 991 (1948), declared that “effect is to be given to the intention of the parties as shown by the language of the whole instrument, considered with the circumstances surrounding the transaction, and the object of the parties in making the restrictions.” Id. at 376, 199 P.2d 994. See also Rowe v. May, 44 N.M. 264, 101 P.2d 391 (1940). This rule is to be applied in conjunction with another which requires a restrictive covenant to be construed most strictly against the covenant so that no injunction issue unless the thing to be enjoined is plainly within the provisions of the covenant. Hoover, supra.
Although restrictive covenants must be construed where possible to favor free use of the property, Montoya v. Barreras, 81 N.M. 749, 474 P.2d 363 (1970); Hoover, supra, and all ambiguities strictly construed against the grantor, Harris v. Four Hills Development Corp., 79 N.M. 370, 443 P.2d 863 (1968), we may not lose sight of the principles which justify valid restrictions. 3 H. Tiffany, supra, at 471, 472, points out:
The basis of the modern rules for enforcement of such restrictions is that one taking land with notice that it is subject to an agreement of this character will not, in equity and good conscience, be permitted to violate its terms. . As stated in the leading case on the subject, “the question is not whether the covenant runs with the land, but whether a party shall be permitted to use the land in a manner inconsistent with the contract entered into by his vendor, and with notice of which he purchased.”
Because I am persuaded that there was an oral agreement between Hyder and Brenton that the lot would be used for residential purposes, (although it is unenforceable as a contract to build), it is clear that Hyder intended, by inserting in the deed what he considered to be a restrictive covenant, to limit the use to be made of the land to erection of a single-family dwelling. Brenton acquiesced in the typewritten addition to the deed.
Appellees introduced evidence at trial concerning the “circumstances surrounding the transaction” and “the object of the parties in making the restriction.” At the initial meeting with Brenton’s agent, at which time the option contract was entered into, Richard Hyder discussed his objective in selling the lot; that is, that he wanted a buyer to build a large home next door to his own. Meadmore agreed that during the negotiations Hyder wanted to know what use was intended for the lot and Meadmore told him it would be used for a home for Brenton. Furthermore, at the closing meeting Brenton herself related her plans to build a thirty-three hundred square foot home as soon as her present residence was sold, and she gave a detailed description of the style of home which she was planning. Latif Hyder, father of appellee, was also present at that meeting. It is clear that every one was apprised of the existence of the intended restriction and agreed to its addition to the deed.
Some courts recognize oral agreements restricting the use of real property; others refuse to enforce them as falling within the statute of frauds. In Thornton v. Schobe, 79 Colo. 25, 243 P. 617 (1925), the court held the vendor’s oral promise not to erect certain types of buildings on lots adjacent to those owned by plaintiffs enforceable in equity, resulting in an order to restore the property to the status quo by defendant vendor.
Another oral agreement respecting the use of property was enforced in equity in Lewis v. Gollner, 129 N.Y. 227, 29 N.E. 81 (1891). There the court found existence of a restrictive covenant not to build tenements in a residential neighborhood, stating: “Neither party at all misunderstood that this was the material point of the contract.” In the instant case the existence of the oral agreement was proved at trial by substantial evidence.
The typewritten addition to the deed sufficiently removes any statute of frauds objection. The provisions in the deed in this case referring to a single-family dwelling is a sufficient memorandum to render the agreement on the use of the property enforceable in equity.
Mrs. Brenton promised, and the deed restriction limits, the use of the property in such a way as will not permanently prevent compliance with the restriction. By replatting her property into one continuous lot, Brenton effectively precluded herself from building a one-family dwelling on the newly purchased portion, since the applicable city zoning regulations prohibit the erection of more than one house per lot. Albuquerque Comprehensive City Zoning Code § 10A(1) (Jan. 1, 1976). In order for Brenton to use the property in accordance with her promise, she may be required to replat the existing parcel into the original two lots, thus entailing the removal or modification of the wall and interior curbings because of city zoning wall height and setback requirements for fronting properties, unless she obtains municipal approval of the existing use and structures. She should have the opportunity to seek that approval.
To partially affirm the decision below would not limit the free use of the property in any other manner which is consistent with or would not preclude the eventual agreed-upon use of the land. Only existing or future improvements as will permanently prevent the building of a one-family home of the required size would be affected by this decision. Thus we would give effect to the rule favoring free use of the land until such time as a dwelling be build upon it, at the same time acknowledging appellees’ right to insist that no permanent improvements or inconsistent use be made on or of the premises which destroy the essence of the agreement entered into by the parties. Brenton may not be required to build, but I would agree with the trial court that she may not so maintain the property that a one-family dwelling could not be constructed.
I have no disagreement regarding reasonable use of the property until such time as Mrs. Brenton constructs a single family dwelling; I respectfully dissent insofar as the majority opinion approves a use which blatantly proclaims the property as a walled back-yard appendage to the home of Mead-more and Martin facing on San Rafael Avenue S.E.