Gagne v. Stevens
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions
Decision: 1997 ME 88
Docket: Ken-96-106
Argued November 7, 1996
Decided April 29, 1997

Panel:  WATHEN, C.J., ROBERTS, GLASSMAN, CLIFFORD,  DANA, and LIPEZ, JJ.

ALBERT R. GAGNE, et al.

v.

BETSY H. STEVENS

LIPEZ, J. 

	[¶1]  Albert R. Gagne (Gagne) and Gagne & Son Concrete Blocks, Inc.
(Gagne & Son) appeal from the summary judgment entered in the Superior
Court (Kennebec County, Marden, J.) in favor of Betsy H. Stevens (Stevens). 
Gagne contends that the court erred in its rulings that the purchase and sale
agreement signed by Stevens violated the statute of frauds because it lacked
a sufficient description of the land for sale, 33 M.R.S.A. § 51(4) (1988); that
parol evidence was inadmissible to supply a precise description of the land
to be conveyed; and that promissory estoppel could not be invoked to order
specific performance.  We disagree with Gagne's contentions and affirm the
judgment.  

Background 

	[¶2]  Gagne & Son manufactures concrete blocks and masonry
supplies in Belgrade, Maine.  Stevens's home is located on her family
homestead, Lot 58 on the Town of Belgrade property map.  See Attachment. 
After purchasing Lot 52 from Stevens in April 1986, Gagne claims that he
discussed purchasing more property with Stevens and her husband and
walked Lot 58 with them several times.  Lot 58 consists of approximately
120 acres.  Gagne asserts that these discussions and examinations of the
property were the basis for his draft of the purchase and sale agreement for
some acreage in Lot 58.  Stevens asserts, however, that she never discussed
selling part of Lot 58 with Gagne until he appeared at her home on the
evening of August 9, 1986. 
  	[¶3]  The details of that night's discussion are disputed.  At its
conclusion, however, Stevens signed an agreement to sell "Pete Gagne,
Gagne & Son Concrete Block, a piece of lot #58 on property map of the
Town of Belgrade, in the approximate size of 30± [sic] in the sum of
[$]20,000, located at the boundaries of the Foster Point Rd and Rt. 27 in
Belgrade Me, also abutting to lot 59B.   To meet my approval on access." 
The agreement also states "I Betsy Stevens accept a check of $100.00 as
down payment with balance due when deed is completed."{1}  The agreement
was signed by Stevens and her husband Robert, but not by Gagne.  Stevens
cashed the deposit check shortly thereafter.
	[¶4]  Gagne claims that the agreement signed by Stevens gives him the
right to take 30 acres anywhere on "the top of the hill" on Lot 58, next to
Lot 59, as long as it is not too close to a neighboring pond or to the property
of Colby College.  He asserts that the agreement included no metes and
bounds description of the parcel because it had never been separately
surveyed or conveyed, and that when Stevens signed the agreement she
orally gave him "permission to retain a surveyor and enter the property for"
the purpose of arriving at a more formal description necessary for the deed
that eventually would effect the conveyance.  Gagne asserts that the written
agreement was supplemented by this promise and by Stevens's conduct in
walking the property with him and showing him the parcel she intended to
convey, both before and after signing the agreement.  
	[¶5]  Gagne eventually had a surveyor prepare a description of both the
lot he wanted to purchase and possible access routes for Stevens's
consideration.  He explains his delay in hiring a surveyor by claiming that it
did not make sense to prepare a metes and bounds description until Stevens
designated the route of access to the parcel.  Gagne alleges that Stevens
made excuses over the next several years for not dealing with him,
culminating in a refusal to meet with Gagne in 1990, ostensibly due to ill
health.  (The metes and bounds description of the approximately 27.7-acre
lot to which Gagne asserts he is entitled, Parcel 1, and alternate access
routes, Parcels 2 and 3, were set forth in his complaint and on the map
appended thereto.  See Attachment.)
	[¶6]  Stevens asserts that she "was under the impression [the
agreement] was a commitment for future negotiations, not a final contract,"
and that Gagne was going to return for further meetings about "where the
land was going to be."  According to Stevens, during a telephone
conversation with Gagne in March 1987, she told him she was no longer
interested in selling part of Lot 58 and that she would be returning the
$100 down payment, which she claims her husband delivered by hand to
Gagne the next day.  Gagne asserts that Stevens did not tell him that she no
longer wanted to sell the land.  He also asserts that Stevens did not return
his deposit, nor attempted to rescind her promises or the agreement she
signed.
	[¶7]  In February 1991 Gagne's attorney contacted Stevens to request
a warranty deed conveying to Gagne Parcel 1 and the alternate access
routes.{2}   She refused to provide the deed and Gagne filed this action in
October 1991.  Stevens obtained a summary judgment on all counts, and this
appeal followed.      

	Discussion
Standard of Review

	[¶8]  In reviewing an appeal from a grant of a summary judgment, we
view the evidence in the light most favorable to the party against whom the
judgment was entered and review the court's decision for errors of law.
Gonzales v. Commissioner, Dept. of Public Safety, 665 A.2d 681, 682 (Me.
1995).  When there is no genuine issue of material fact and the moving party
is entitled to a judgment as a matter of law, we affirm.  Id. at 682-83.  At the
summary judgment stage of the proceeding, we determine whether the
record before the court generates a genuine issue of material fact.  Casco
Northern Bank, N.A. v. Edwards, 640 A.2d 213, 215 (Me. 1994).   The court
cannot decide an issue of fact no matter how improbable the opposing
party's chances of prevailing at trial. Tallwood Land & Development Co. v.
Botka, 352 A.2d 753, 755 (Me. 1976)  (citing Field, McKusick & Wroth, 2
Maine Civil Practice § 56.4 at 39 (2d ed. 1970)).  When contract language is
ambiguous or uncertain, its interpretation is a question of fact to be
determined by the fact finder; when the language is clear, its interpretation
is a question of law for the court.  F.O. Bailey Co., Inc. v. Ledgewood, Inc.,
603 A.2d 466, 468 (Me. 1992).  Whether an agreement is totally or partially
integrated is a matter of law, Harriman v. Maddocks, 518 A.2d 1027, 1030
(Me. 1986), as is a determination of a writing's sufficiency for purposes of
the statute of frauds.  Simon v. Simon, 625 N.E.2d 564, 567 (Mass. 1994).  

Statute of Frauds and Parol Evidence

	[¶9]  Gagne contends that the purchase and sale agreement signed by
Stevens was not a full expression of their understanding and that the court
should have taken parol evidence into account in assessing whether the
agreement was integrated and whether its description of the property to be
conveyed satisfies the statute of frauds, 33 M.R.S.A. § 51(4).{3}  Gagne is
correct in asserting that parol evidence of the parties' negotiations and
mutual understandings is admissible on the preliminary question whether a
written purchase and sale agreement concerning property is fully or
partially integrated.  Clarke v. DiPietro, 525 A.2d 623, 625 (Me. 1987).{4} 
However, it remains "well settled that 'to satisfy the statute [of frauds], the
memorandum must contain within itself, or by some reference to other
written evidence . . . all the essential terms of the contract, expressed with
such reasonable certainty as may be understood from the memorandum and
other written evidence referred to, (if any) without any aid from parol
testimony.'" Kingsley v. Siebrecht, 92 Me. 23, 27-28 (Me. 1898) (citation
omitted); see also Busque v. Marcou, 147 Me. 289, 293, 86 A.2d 873, 876
(1952) (a deficiency in a memorandum's recitation of the material
conditions of the contract pursuant to the statute of frauds may not be
supplied by parol evidence).  As we explained more than a century ago,
although a contract for the sale of land need not include a metes and bounds
description, it "should . . . describe[] the land with such certainty, that it
could be understood from the writing itself, without parol proof; unless that
appears in the writing itself, or by some reference, contained in it, to
something else, which is certain, it does not comply with the statute. . . ." 
Jordan v. Fay, 40 Me. 130, 132 (1855) (finding defective a memorandum
that described the lot at issue "only [as] joining a small tract, now occupied
by Michael Micue, and [with t]he location, size and shape of the lot . . .
entirely wanting in the description . . . ."); Thurlow v. Perry, 107 Me. 127,
129 (1910) (designation of property to be sold must be sufficiently definite
in written contract for the sale of lands); see Restatement (Second) of
Contracts (Restatement) § 131 cmt. e (1981) ("Without reference to
executory oral promises, the memorandum in context must indicate with
reasonable certainty the nature of the transaction and must provide a basis
for identifying the land, goods or other subject matter.").  This requirement
relates to the statute's primary, evidentiary purpose: "to require reliable
evidence of the existence and terms of the contract and to prevent
enforcement through fraud or perjury of contracts never in fact made." 
Restatement § 131 cmt. c.{5}  
	[¶10]  The purchase and sale agreement signed by Stevens describes
the property to be conveyed as "a piece of lot #58 on property map of the
Town of Belgrade, in the approximate size of 30± [sic], in the sum of
[$]20,000, located at the boundaries of the Foster Point Rd and Rt. 27 in
Belgrade Me, also abutting to lot #59 B."  The plus-or-minus "30" acres to
be conveyed refers to a portion of a tract larger than 120 acres.  The
agreement's reference to the size of the parcel alone, therefore, does not
constitute a description of the property specific enough to satisfy the statute
of frauds.{6}  See Michelson, 39 N.E.2d at 635 (Mass. 1942) (memorandum
must contain a description of the land sold that applies to one parcel only
and its language may not fit other parcels of land than the one for which the
plaintiff contends); White, 644 P.2d at 325 (Idaho 1982) (where nothing in
description served to "pinpoint exactly which 960 acres [of 9,000] was to be
transferred," agreement was too ambiguous to satisfy the statute of frauds);
Howell v. Inland Empire Paper Co., 624 P.2d 739, 740 (Wash. Ct. App.
1981), review denied, 95 Wash. 2d 1021 (1981) (when writing describes
land only by quantity and as being part of a larger tract without identifying
the particular land to be conveyed, it will not satisfy the statute of frauds); 
Cash v. Maddox, 220 S.E.2d 121, 122 (S.C. 1975) (contract that gives no
definite location or shape of the 15 acres to be conveyed, out of a 76-acre
tract, is insufficiently specific to satisfy the statute of frauds).
	[¶11]  Moreover, the "boundaries" indicated in the purchase and sale
agreement signed by Stevens serve only to confuse matters.  According to
the map appended to Gagne's complaint as Exhibit A (see Attachment),
which does not identify Lot 59B at all, the corner where Foster Point Road
meets Route 27 borders Lots 51 and 55, not Lot 58.  Even if the
"boundaries" provided by those two roads were otherwise plausible, the
description in the purchase and sale agreement does not specify their
length and leaves uncertain the third boundary that would be necessary to
describe a discrete parcel of land.  (Indeed, Parcel 1 as described in Gagne's
complaint and on the accompanying map is defined by six boundaries--five
straight lines and one segment of the Foster Point Road.)  Thus, the land
"described" in the purchase and sale agreement has an indefinite shape and
location, and it is impossible to locate within Lot 58.  Finally, the description
in the purchase and sale agreement does not match the 27.7 acres "more or
less" of Parcel 1 identified on the map appended to Gagne's complaint,
which is not bounded at all by Route 27.
	[¶12]  These multiple deficiencies in the writing's description of the
property to be conveyed cannot be remedied by parol evidence.  The court
did not err in disregarding such evidence, nor in finding that the purchase
and sale agreement's description of the land was not specific enough to
satisfy the statute of frauds.{7} 
 

     	Promissory Estoppel

	[¶13]  Gagne contends that the court erred in refusing to order
specific performance of the purchase and sale agreement pursuant to the
doctrine of promissory estoppel.  Promissory estoppel may be invoked when
a "promise which the promisor should reasonably expect to induce action or
forbearance on the part of the promisee or a third person and which does
induce such action or forbearance is binding if injustice can be avoided only
by enforcement of the promise."  Restatement § 90; see Chapman v.
Bomann, 381 A.2d 1123, 1127 (Me. 1978) (adopting the Restatement
formulation of promissory estoppel).  As the court asserted in its decision, it
is impossible to order specific performance of "a contract of land not
described."  Stevens made no promise specific enough to enforce.  See
Masselli v. Fenton, 157 Me. 330, 336 (1961) ("When the instrument leaves
certain terms and conditions to be agreed upon and contemplates the
execution of a final contract, it is not a contract that can be specifically
enforced.").  
	[¶14]  Moreover, specific performance of a contract that does not
satisfy the statute of frauds is warranted only "if it is established that the
party seeking enforcement, in reasonable reliance on the contract and on
the continuing assent of the party against whom enforcement is sought, has
so changed his position that injustice can be avoided only by specific
enforcement."  Restatement § 129; see Busque v. Marcou, 147 Me. 289,
294-95 (1952) (equity will grant relief to one who has fully or partially
performed a contract that is unenforceable because it does not comply with
the statute of frauds, but only on certain well established equitable
principles such as a party's inducement by the other party to irretrievably
change his position so that to refuse relief would otherwise amount to a
fraud on his rights).  Gagne generated no issue of material fact on such an
irretrievable change in position.{8}  
	The entry is: 
		Judgment affirmed.
                                                               
Attorney for plaintiff:

Kevin J. Beal, Esq. (orally)
Preti, Flaherty, Beliveau & Pachios, LLC
P O Box 11410
Portland, ME 04104-7410

Attorney for defendant:

Waldemar G. Buschmann, Esq. (orally)
Week & Hutchins 
P O Box 417
Waterville, ME 04903-0417

Webmaster's note: the Court's Attachment, a map, has not been reproduced
in these electronic formats for fiscal and technical reasons.

FOOTNOTES******************************** {1} The underlining designates insertions handwritten on the typed agreement. Gagne claims that the only item left to be clarified was the route across the parcel to enable access to the gravel that might be located there, and that this clarification led Stevens to amend the draft purchase and sale agreement with the handwritten clause reserving her right to approve the route of access. {2} Neither Stevens's affidavit nor Gagne's complaint specify the proposed contents of the warranty deed. This statement about the proposed content of the deed is a plausible inference given the order of the relevant events. {3} Section 51 states in pertinent part: No action shall be maintained in