JOHNSTON V. CURTIS 16 S.W.3d 283 (2000) CASE BRIEF

JOHNSTON V. CURTIS

16 S.W.3d 283 (2000)

NATURE OF THE CASE: Johnston (D) appealed a judgment finding that the parties orally modified a written real estate contract and D's non-performance of the contract was not excused. Curtis (P), sellers, appealed the denial of expectancy and punitive damages.

FACTS: P agreed to sell their home to D for $114,000. The transaction was subject to D getting a loan for 90% ($102,600) of the purchase price. D told P that they were preapproved on the loan but the appraisal for the house came in at $110,000. P and D then entered into an oral agreement to sell the house for $110,000. The lease on D's current home in Hot Springs expired and D paid P $500, took 'early possession' of, and moved into the home yet to be closed. The loan was finally approved. One of the terms of the loan was that Bebe Dare Johnston's name would not be on the title of the home, but that the title of the home would be in Gerald Johnston's name only. P testified that the parties were to close on the house on November 17, but that they were informed that day that D had refused to close. P demanded that P vacate the premise. P sold the property in March 1998 for $100,000 and after deducting the six-percent commission, they received $94,000, less closing costs. P sued D for breach. D testified that he originally agreed to a note rate between 9 and 10 percent and that the quoted interest rate of 10.75%, was too high and that he was only interested in purchasing the house if he would obtain an acceptable interest rate. D also said he was never informed that his wife could not appear on the deed and would have never purchased if he knew that. D also testified that the $500 was not earnest money but a deposit to cover damages that might be caused by moving into the house. D claimed he stopped payment because P was not acting in good faith. The trial court held that the parties orally modified the agreement to reduce the purchase price, that no other terms were changed, and the oral modification was outside the statute of frauds. P was given damages of $10,000. Both parties appealed.

ISSUE:

RULE OF LAW:

HOLDING AND DECISION:

LEGAL ANALYSIS:

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