Young v. Bryan

368 N.E.2d 1 (1977) Lola Mae YOUNG, As Administratrix of the Estate of Daniel S. Young, Deceased, and Lola Mae Young, Appellants, v. Clark A. BRYAN and Bonnie Lou Bryan, Appellees. No. 1-576-A-74. Court of Appeals of Indiana, First District. April 5, 1977. Vernon J. Petri, Richard W. Lorenz, John J. Fuhs, Spencer, for appellants. Arch N. Bobbitt, Ruckelshaus, Bobbitt & O'Connor, Indianapolis, Rexell A. Boyd, Lyon & Boyd, Greencastle, for appellees. LOWDERMILK, Judge. CASE SUMMARY Plaintiff-appellant Lola Mae Young — in her personal capacity and as administratrix of the Estate of Daniel S. Young — appeals *2 from a judgment for defendants — appellees Clark A. and Bonnie Lou Bryan in a bench trial of Lola's action for specific performance of a contract to sell land and for damages due to non-performance. We remand for further determinations. FACTS Clark and Daniel discussed the sale of the Bryans' 160-acre farm to the Youngs; the Bryans signed and gave to Daniel the document set forth in the trial court's first finding of fact, infra. Daniel sought a loan of $72,000 from a bank. The bank president and vice-president went to the Bryans' farm, informed the Bryans that they were there to appraise the farm for the purpose of a mortgage loan to Daniel, and were shown the boundaries of the farm by Clark. The bank approved the loan. The trial court's "Findings of Fact, Conclusions of Law and Judgment" stated: "The Court having had this cause under advisement and having considered the evidence, including all sworn testimony, exhibits, depositions and deposition exhibits introduced by the parties by stipulation now pursuant to the request of the plaintiff enters herein his findings of fact as follows: "1. That on June 27, 1973 the defendants executed and gave to the Plaintiff Daniel S. Young the following paper which reads as follows: `We Clark A. Bryan & Bonnie Lou Bryan agree to sell our 160 acres for $72,000.00. This farm is located SE 1/4 Sec 15 5 1/2. Real estate taxes for 1972 are $467.62. We agree to give possession on March 1, 1974. `The limit of liability insurance is as follows: Farm Dwelling $14,000.00 Barn 4,500.00 Workshop 2,000.00 Sm metal pole shed 500.00 Large metal pole shed 5,000.00 `The house has 8 rooms, carpeted upstairs & steps, carpeted living room & bath. Enclosed back porch. Signed June 27, 1973 Clark A. Bryan Bonnie Lou Bryan' "2. That said paper was written by separate defendant Bonnie Lou Bryan with the express permission and consent of her husband and separate defendant Clark A. Bryan and bears the signatures of both Bonnie Lou Bryan and Clark A. Bryan. "3. That after the execution and delivery of such paper the Plaintiff Daniel S. Young died and the widow Lola Mae Young, is the surviving widow of Daniel S. Young, deceased, and the Administratrix of the estate of said decedent. "4. That at no time after the delivery of the paper set forth at finding No. 1 did the Plaintiffs or either of them file or deliver to the Defendants an acceptance of such offer. "Upon such findings of fact the Court finds that the law is with the Defendants and the Court enters judgment for said defendants." ISSUE Whether the trial court's judgment was clearly erroneous. DECISION Lola contends that the trial court's judgment was contrary to law inasmuch as its fourth finding of fact disclosed that it applied an erroneous rule of law to the facts. This finding shows that the trial court held that the Bryans' offer was not accepted; it shows that the trial court considered a filing or delivery of the Youngs' acceptance to be necessary to form a contract. We cannot disturb said finding and judgment unless they were clearly erroneous. Ind.Rules of Procedure, Trial Rule 52(A). Clearly erroneous means that, although there is evidence to support the trial court's decision, the record leaves the reviewing court with the definite and firm conviction that a mistake has been committed. Citizens Gas & Coke Utility v. Wells (1971), 150 Ind. App. 78, 275 N.E.2d 323. *3 It is not the law of this state that an offeree's acceptance must be filed or delivered to the offeror before a contract is created. The acceptance must be evidenced by some overt act and must be communicated to the offeror so that there is a meeting of the parties' minds. 6 I.L.E., Contracts §§ 21, 23, 26 (1958). The acceptance may be expressed verbally, in writing, or by acts which manifest the acceptance. Equitable Life Assurance Society of the United States v. Perkins (1907), 41 Ind. App. 183, 80 N.E. 682. Our Statute of Frauds[1] does not govern the formation of contracts — but only the enforceability of contracts which have been formed. It does not void a verbal contract for the sale of an interest in real property. Dubois County Machine Co. v. Blessinger (1971), 149 Ind. App. 594, 274 N.E.2d 279. To render a contract to sell land enforceable within the Statute of Frauds, it must be evidenced by some writing: (1) which has been signed by the party against whom the contract is to be enforced or his authorized agent, (2) which describes with reasonable certainty each party and the land, and (3) which states with reasonable certainty the terms and conditions of the promises and by whom and to whom promises were made. McMahan Construction Co. v. Wegehoft Brothers, Inc. (1976), Ind. App., 354 N.E.2d 278. A verbal contract for the sale of land may be removed from the operation of the Statute of Frauds by the doctrine of part performance; whether there was performance sufficient to invoke the doctrine is a question which requires an examination of the circumstances of each case. Id. See Dubois County Machine Co. v. Blessinger, supra, for some circumstances which are generally held sufficient to make the doctrine applicable. Inasmuch as the trial court utilized an erroneous standard in its fourth finding of fact we conclude that its judgment was clearly erroneous. Pursuant to Ind. Rules of Procedure, Appellate Rule 15(N) we retain jurisdiction over this cause and remand it to the trial court with instructions that it conduct any necessary further proceedings and within 60 days of the hand down date here-of to correct and amend its "Findings of Fact, Conclusions of Law and Judgment," supra, to determine the following issues according to the standards enunciated herein. The issues which the trial court shall determine are: 1. Whether the Youngs accepted the Bryans' offer. 2. If there was acceptance so that a contract was formed, whether there was a memorandum of the contract sufficient to bring it within the Statute of Frauds. 3. If it was not within the Statute of Frauds, whether there was performance sufficient to invoke the doctrine of part performance. Remanded for further proceedings. ROBERTSON, C.J., and LYBROOK, J., concur. NOTES [1] IC 1971, 32-2-1-1. Lola argues that the Statute of Frauds was not an issue in the case at bar. However, the record reveals that the Bryans asserted this affirmative defense in their answer and thereby properly raised the issue. Ind.Rules of Procedure, Trial Rule 8(C).