Mundy v. Hesson

Compton, J.,

delivered the opinion of the court.

This appeal reviews the trial court’s denial of the purchasers’ request for specific performance of a contract for the sale of real estate which came into existence by the exercise of an option to purchase.

The plaintiffs, William S. Mundy, III, and Patricia W. Mundy, his wife, alleged in their bill in equity that they properly exercised an option agreement for the purchase of two tracts of land in Amherst County, Virginia, from the defendants, Lawrence A. Hesson and Martha T. Hesson, his wife. The Mundys asserted that by their acceptance of the option, a valid and enforceable contract of sale was created, that they have been willing and ready to perform the contract, that the sellers have *387.refused to comply with the option agreement and sales contract, and, therefore, that they are entitled to have the agreement specifically enforced.

In their answer, the defendants admitted the granting of the option, denied that the plaintiffs properly exercised the option, and denied that the plaintiffs were able or ready or willing to pay the purchase price according to the terms of the agreement.

After hearing the evidence ore terms, the chancellor, in a written opinion, found in favor of the defendants, and we granted the purchasers an appeal from the final decree which denied specific performance.

Mundy, an attorney at law and a member of the bar since 1968, had been personally acquainted with the Hessons “for a long time” and familiar with the property since he had hunted over “every other foot” of the larger tract for about twenty years. Several days prior to the execution of the option in question, Mundy went to see Hesson at his store in Riverville, Virginia, and asked Hesson if he would sell the Ranch Tract consisting of 842 acres. Hesson refused to sell the Ranch without selling the store property, a separate parcel of about three acres. Even though Mundy was not interested in the store which Hesson said had $4,000 worth of goods in it, he nevertheless agreed to include it in the option. The price set was $75,000 for the Ranch and $16,000 for the store and its stock of goods.

Mundy drew the option and in several days returned with his wife to Hesson’s store where the agreement was executed by the Hessons on July 24, 1972. After handwritten changes in the typed draft were made at Hesson’s request, the option provided:

“OPTION
“We, the undersigned, hereinafter referred to as Grantors, in consideration of Ten Dollars ($10.00), receipt of which is hereby acknowledged do hereby sell, give and grant unto William S. Mundy, III, and Patricia W. Mundy, Grantees, the exclusive right and option to purchase that certain property owned by the Grantors in Court House Magisterial District, Amherst County, Virginia, and more particularly described as follows:
4
852 acres, more or less, and known as the Ranch Tract lying between Riverville and Amherst, Virginia, and a 3-acre *388tract at Riverville being better known as Hesson’s store and all appurtenances and privileges thereunto belonging

at and for the price of Ninety-one Thousand Dollars ($91,000).

60 days

This option shall remain in effect for a period of si-x--(6) months from the date thereof, during which time the Grantees may exercise this option.
“Said option if exercised will include the stock of trade in Hesson’s Store, valued at approximately $4,000, and all fixtures and other store equipment necessary to the operation of said store and now located on the said premises including but not limited to scales, coolers, freezers and Jeep truck--. Should the option be exercised it wiiHnclude also all of lire' logging equipment now in the possession of the Grantors including but not limited to trucks, saws and crawler tractors.
“Grantors agree that the Grantees may enter upon the property to inspect or to test the soil or other conditions at any time during the term of this option. Should Grantees exercise this option, the consideration mentioned above shall be credited against the purchase price specified for the property. In the event that the Grantees exercise this option the Grantors agree to deliver unto the Grantees a General Warranty Deed. In the event that the option is exercised the Grantors agree to allow Grantees a reasonable time to have Title examined and should any defects be found Grantors agree to remedy them within a reasonable period of time.
“WITNESS the following signatures and seals this 24th day of July, 1972.”

When requiring the change from six months to sixty days, Hesson told Mundy that he “wouldn’t sign the place up for no six months, [he] would give him sixty days and that was all.” Nothing was discussed about the manner and method of payment of the purchase price. Mundy represented to Hesson that his father-in-law, a nonresident, “had plenty of money” and that “he could get all he wanted,” so Hesson, contemplating a cash transaction, made no inquiry of Mundy on that subject.

On September 12,1972, Mundy wrote the Hessons as follows:

“Dear Mr. & Mrs. Hesson:
“This is to notify you that William S. Mundy, III and Patricia W. Mundy wish to exercise their option to purchase that *389certain property owned by you and described in an OPTION dated July 24, 1972. Said property is 842 acres and Hesson’s Store.
“Please get in touch with the undersigned to set up a date to go over the mechanics of the transfer. A copy of your Deed is also necessary so that a Title Search may be made prior to closing.”

On September 19, 1972, Hesson went alone to Mundy’s office to “settle up with him.” Hesson stated he was ready to perform on that day by delivery of the executed deeds to the property, although the deeds had not been prepared. He had the old deeds conveying the property to him under the seat of his car parked outside Mundy’s office. Hesson testified that he could have had the deeds prepared in an hour if Mundy had been ready to pay the $91,000. He further stated that “I asked him about the 91,000 and he said all he could scrape up then was $20,000.00. So I told him that ‘no deal’ on $20,000 . . . He wanted to pay me 20,000 and I would deed the places to him and I wouldn’t agree to that at all.” Hesson then left Mundy’s office and there was no communication between the parties for more than two months thereafter.

During August of 1972, rumors had begun to circulate in the area about industrial development being planned for the Riverville area, although Hesson testified that “nobody actually knew anything [definite about the plans] until sometime in December.”

During the Fall of 1972, Hesson, considering the transaction ended, continued to cut pulpwood from the property, continued to sell merchandise from the store and in October granted another option to a third party on the store property which was never exercised.

On December 5, Mundy mailed Hesson, without a cover letter, drafts of deeds to the property in question prepared by another attorney who had examined the title at Mundy’s request. Mundy admitted that he then knew “the plant was coming in.”

On December 14, 1972, Hesson wrote Mundy:

“Dear Stark,
“I received two deeds from you. Your option terminated as of September 24th, 1972. I don’t know where you got the authority to draw up these deeds. Therefore, I am returning them.”

*390On December 15, 1972, Mundy replied by letter stating:

“Dear Mr. Hesson:
“By letter dated September 12, 1972, and received by you, I exercised the option on the land in question. I am sure that you will remember telling me that you talked to your Accountant shortly after the option was exercised in order to find out what were the best terms for you taxwise.
“The option called for the delivery to me by you of a General Warranty Deed to the property in question. As no Deed was so delivered I had the title checked without the copies and had the Deeds drawn up to save you some trouble.
“I am today recording the option and the copy of the letter exercising it. I am beginning to see that the request by you for payment in full as of settlement day was basically something to scare me off. I would still suggest that you take payments over a period of years in order to reduce your tax liability.”

Hesson made no response to this letter and Mundy wrote again on December 20,1972 as follows:

“Dear Mr. Hesson:
“I am still amazed and upset every time I happen to run across your last letter. I hope that I conveyed to you the idea in my reply to you that I expect to have the land transferred to me.
“As you had failed to comply with the terms of the real estate option by presenting me a Deed or a copy of a Deed to the land in question, so that I could have the title searched, I went ahead and had the Deeds that I sent you drawn up. I was not trying to usurp your authority; only trying to save you some trouble. t
“I intend to have the real estate described in the option conveyed to myself and Pat. I would suggest that if you think the option and the letter that I sent you are not legally binding upon you and your wife that you take them to an Attorney for his opinion. I would not wait until the last minute to do it. I expect to have in my hands no later than December 30, 1972, properly drawn and executed Deeds to the property described in the option. I will be more than happy to send you the ones that you returned to me. I will also be happy to arrange the payment for the land in whatever fashion would best suit your personal taste or tax needs.
*391“By the letter dated September 12, 1972, the option was exercised. I can only hope that you will do what your heart says is right and transfer the land under the option. If your pocketbook wins the battle I will be forced to make you transfer the land.”

Nothing was done thereafter by any of the parties to complete the transaction and this suit was filed on January 19, 1973.

The two main issues raised by the assignments of error are: did the trial court err in ruling that the option agreement was incomplete and uncertain because all of the essential terms of the contract were not finally and definitely settled; and, if a valid executory contract for the sale of the real estate was created, did the trial court err in denying specific performance for the reason that the plaintiffs were not able, ready, prompt, eager and willing to perform the contract.

We will assume the plaintiffs are correct in their contention that the option agreement was valid and that it was converted by the letter of September 12, 1972, into a binding executory contract providing for payment of the purchase price in cash within a reasonable time after September 12. The question remains, however, whether the plaintiffs are entitled to have the contract specifically enforced. We conclude they are not, and the trial court properly so held. “In order for a litigant to avail himself of the remedy of specific performance, ‘he must show that he has been able, ready, prompt, eager and willing to perform the contract on his part. He must not have remained quiet or held himself aloof so as to enforce or abandon the contract as events might prove advantageous.’ ” Reutt v. Jordan, 207 Va. 869, 873, 153 S.E.2d 197, 200 (1967).

The plaintiffs contend they presented sufficient and compelling proof to show their ability, readiness and eagerness to perform the contract. But there were direct conflicts in the evidence on these essential elements. For example, Mundy testified that at all material stages of the transaction he had the ability and was ready to pay $91,000 in cash, because his father-in-law had made a commitment to him to advance the purchase price. Hesson, on the other hand, testified that on September 19 Mundy told him that all he could “scrape up” was $20,000 cash, stating that he did not want to seek additional funds from his father-in-law because of a prior indebtedness to him. The father-in-law did not testify nor was there any *392evidence that funds to cover the purchase price were deposited to Mundy’s account; nor was any escrow deposit made for the Hessons’ benefit. Mundy seeks to excuse his delay in performance by saying that Hesson told him on September 19 that he would “get back in touch with me after he talked to his accountant” to decide on the income tax implications of an installment sale. Hesson says, however, that he never considered an installment sale because several years before he had investigated such an arrangement and decided then it would not be beneficial.

While the Mundys were obviously eager to perform because on September 21, 1972, they contracted to sell the larger tract for $132,000 to Clayton C. Bryant and Charles D. Branch, nevertheless the record conclusively shows that at no time from September 19 to the date this suit was filed did the plaintiffs ever make an unequivocal tender of payment in cash to the Hessons or ever state to the Hessons that they were ready to close the transaction with a cash payment. Nothing was specifically said in the letter of September 12 about payment. The letter of December 15 suggests an installment sale. The December 20 letter refers to payment “in whatever fashion would best suit your personal taste or tax needs” — a nonspecific and vague reference to a possible cash payment. This was made even after the August rumors of industrial development and attendant increased land value had ripened into a known fact.

The decree of the chancellor determining questions of fact on conflicting evidence heard ore tenus has the same weight as the verdict of a jury, and it will be permitted to stand unless plainly wrong or without evidence to support it. Crowder v. Commonwealth, 202 Va. 871, 875-876, 121 S.E.2d 487, 490 (1961). From a review of this entire record, the trial court’s decision that the plaintiffs were not able, ready, prompt, eager and willing to pay the purchase price in cash within a reasonable time after September 12, 1972, is not plainly wrong or without evidence to support it.

The decree denying specific performance is therefore

Affirmed.