Milliman v. Peterman

519 So. 2d 238, 1988 WL 2703
CourtLouisiana Court of Appeal
DecidedJanuary 11, 1988
Docket87-CA-385
StatusPublished
Cited by6 cases

This text of 519 So. 2d 238 (Milliman v. Peterman) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Milliman v. Peterman, 519 So. 2d 238, 1988 WL 2703 (La. Ct. App. 1988).

Opinion

519 So.2d 238 (1988)

Palma and Ronald MILLIMAN
v.
Helen PETERMAN and Marie Bulgherini.

No. 87-CA-385.

Court of Appeal of Louisiana, Fifth Circuit.

January 11, 1988.
Writ Denied March 11, 1988.

*239 James S. Arceneaux, Metairie, for defendants/appellants.

James T. Flanagan and Wayne H. Scheuermann, Mollere & Flanagan, Metairie, for defendants/appellants.

Jack A. Ricci, Baldwin & Haspel, Metairie, for plaintiffs/appellees.

Before BOWES, WICKER and GOTHARD, JJ.

BOWES, Judge.

In this action, defendants/appellants, Helen Peterman and Marie Bulgherini, assert that the trial judge erred when he held that the Millimans, plaintiffs and appellees, validly and timely accepted an offer by defendants to purchase immovable property belonging to plaintiffs and that the defendants later breached the contract, thus entitling the Millimans to the deposit and attorney's fees. We disagree and affirm.

When the plaintiffs moved from Kenner, Louisiana, to Bowling Green, Kentucky, they entered into a listing contract with Merrill Lynch Realty, Inc. to market the property.

On August 19, 1985, by which time the Millimans had already moved to Bowling Green, Mr. William Althans, an agent with Merrill Lynch, showed the property to the defendants-appellants and prepared an agreement to purchase. The agreement was signed by Ms. Peterman and Ms. Bulgherini. However, at line 79, the agreement had a provision that the offer remained binding and irrevocable through August 20, ____ at 7:00 p.m. and the year was not inserted in this blank space. The defendants also executed and signed a Real Estate Deposit Note for $9,950 as a partial deposit on the purchase, and, on August 20, 1985, gave Mr. Althans a money order made payable to Merrill Lynch Realty, Inc. in the sum of $1,000.00. Additionally, on August 19, 1985, the defendants signed a lease for use with an Agreement or Option to Purchase, intending to lease the home for a period not exceeding one year commencing on August 21, 1985, and ending the last calendar day of August 1986.[1]

*240 On that same date, August 19, Mr. Althans contacted Mr. Milliman and advised him that the defendants had made this offer to purchase the property. Mr. Althans testified that he read all of the pertinent parts of the contract to Mr. Milliman over the phone. Mr. Milliman testified that he had, in fact, accepted the offer over the phone, but, in discussing the issue with Mr. Althans, it was decided that the acceptance should be put in writing.

The following day, Mr. Milliman sent a telegram, addressed to Bill Althans, which stated:

WE, RONALD AND PALMA MILLIMAN, ACCEPT THE LEASE PURCHASE OFFER MADE BY HELEN PETERMAN AND MARIE BULGHERINI OF $109,500 WITH A 12 MONTH LEASE AT $850 PER MONTH FOR THE FIRST 6 MONTHS AND $875 PER MONTH FOR THE REMAINING LEASE. ALL OTHER TERMS AND CONDITIONS OF THE CONTRACT DATED AUGUST 19, 1985 ARE ACCEPTED.
RONALD AND PALMA MILLIMAN 12:06 EST

On August 21, 1985, the defendants moved into the home and remained there until some time after March 1, 1986, when they notified the plaintiffs and Mr. Althans, in writing, that they did not intend to purchase the home.[2]

Plaintiffs filed this suit and obtained a judgment forfeiting the purchasers' deposit to them, and awarding them attorney's fees under the contract.

On appeal, defendants present five assignments of error:

1. The trial judge was in error in failing to hold that the offer to purchase was to remain binding and irrevocable only through August 20, 1985.
2. The trial judge was in error in ruling that the acceptance by the plaintiffs of the defendants' offer by telegraph was satisfactory.
3. The trial judge was in error in ruling that the action of the defendants in moving into the premises indicated they were satisfied that their offer had been accepted.
4. The trial judge was in error in ruling that the defendants breached a contract and are not entitled to a refund of their deposit of $1,850.00.
5. In the alternative, and only in the event the court should affirm the decision of the trial judge, the trial judge was in error in awarding attorney fees of $2,500.00.

Assignments one, two and three will be discussed together for the sake of continuity.

Appellants argue strenuously that although the purchase agreement stated that "This offer remains binding and irrevocable through (date) August 20, ____ (time) 7 p.m." (and does not include the year "1985"), nonetheless it is clear what year was intended by the parties. Each of the three witnesses at trial, Mr. Milliman, Mr. Althans and Ms. Bulgherini, testified that August 20, 1985, at 7:00 p.m. was indeed the time limit set by and agreed upon by the parties.

The Louisiana Supreme Court held in Dixie Campers, Inc. v. Vesely Co., 398 So.2d 1087 (La.1981):

[1] Although parol evidence is inadmissible to vary the terms of a written contract, La.C.C. art. 2276 [now see LSA C.C. art. 1848], when the terms of a written contract are susceptible to more than one interpretation, or there is uncertainty or ambiguity as to its provisions, or the intent of the parties cannot be ascertained from the language employed, parol evidence is admissible to clarify the *241 ambiguity and to show the intention of the parties. [cites omitted]

Therefore, although the trial judge stated in his reasons for judgment "since no year was provided in the agreement, the court assumes that the time period was a reasonable period of time which was allowed to the plaintiff/sellers to accept the offer", considering all the testimony and evidence brought out at the trial, we find in the instant case that the date intended for the offer to expire was August 20, 1985 at 7:00 p.m.

The second assignment of error raised by the appellants asserts that the telegram was not a valid acceptance by the appellees of appellants' agreement to purchase. We find this argument without merit. In the case before us, appellants signed the actual agreement to purchase on August 19, 1985. That same day, the real estate agent contacted Mr. Milliman by phone, and, the very next day, several hours before the offer was to expire, the Millimans sent a telegram (contents reproduced supra) with their names typed out at the bottom.

Appellants cite Morvant v. Arnoult, 490 So.2d 549 (La.App. 4 Cir.1986) and Rebman v. Reed,[3] 335 So.2d 37 (La.App. 4 Cir.1976), Writ denied 338 So.2d 699 (La.1976) for the legal principle that "A contract to sell immovable property, to be enforceable, must be in writing and must be signed by the buyer and seller, and if an agent executes the contract on behalf of the buyer or the seller, the agent's authority must be express and in writing." Based on these cases, the appellants argue that since the agreement was not signed by both parties prior to the expiration of the acceptance period, it is invalid and appellees' oral acceptance and telegram do not cure the defect.

The cases cited by appellants to support their position are easily distinguishable from the facts of the instant case. Both of the cases cited by appellants involved a situation in which the seller did not sign the contract or exhibit any other outward manifestation of acceptance to sell except to rely on his agent to sign the agreement for him.

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Cite This Page — Counsel Stack

Bluebook (online)
519 So. 2d 238, 1988 WL 2703, Counsel Stack Legal Research, https://law.counselstack.com/opinion/milliman-v-peterman-lactapp-1988.