March 22, 2006
SOF and PER Together Again!
In the case, Robert Brown owned 1,000 acres of land at Coal City Hollow. He sold some land to Larry and Martha Watson, but that parcel could be reached only be reached if there were a bridge across Coal City Creek. As part of the sale, he agreed to build a bridge. His first effort -- sinking empty fuel tanks in the creek to build a culvert -- washed away. He then agreed to have Watson build the bridge. The contract prepared by a lawyer provided that Watson would get two pieces of property, tracts 14 and 15 (five acres each), as compensation for the bridge. When Brown got the agreement, he put in an attachment that changed it to “tract 14 or 15 (his choice),” and initialed it. He hand-wrote on the first page of the contract, “see attached agreement,” but the other parties who signed the agreement said that this notice was not on the contract they signed, nor was there any attachment. The bridge was built, disputes arose, and Brown did not convey the property. Watson sued for specific performance and got a jury verdict granting him both tracts.
On appeal, Brown argued that there was no writing signed by him to transfer both tracts, and thus that the SOF barred the claim. He also argued that parol evidence of the two tracts could not be introduced to counter the single tract specified in the written contract. The first one was easy: the court noted that part performance is an exception to the SOF, and thus Watson’s construction of the bridge opened the door to enforcement even if there were no writing.
The second one was harder, although the court gave it short shrift. Since the contract was a land conveyance prepared by a lawyer and signed by all the parties, and it included the addendum, the court could only get around the one-tract limit by listening to parol evidence that the addendum hadn’t been there when the other parties signed. Having heard that parol evidence, the court used it to find that the contract was ambiguous. With ambiguity in hand, the court could proceed to listen to parol evidence about the original oral agreement.
Investment Properties Co. v. Watson, 2006 Ga. App. LEXIS 255 (March 7, 2006)
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