MIKE LUZADDER and                         )
WENDY LUZADDER,                           )
                                          )
      Plaintiffs/Appellees,               )
                                          )   Appeal No.
                                          )   01-A-01-9706-CH-00239
VS.                                       )
                                          )   Grundy Chancery
                                          )   No. 4626
JERRY FOWLER,                             )

      Defendant/Appellant.
                                          )
                                          )                FILED
                                                     January 28, 1998
                     COURT OF APPEALS OF TENNESSEE
                       MIDDLE SECTION AT NASHVILLE  Cecil W. Crowson
                                                   Appellate Court Clerk
APPEALED FROM THE CHANCERY COURT OF GRUNDY COUNTY
AT ALTAMONT, TENNESSEE

THE HONORABLE JEFFREY F. STEWART, CHANCELLOR




AUBREY L. HARPER
114 North College Street
Post Office Box 588
McMinnville, Tennessee 37111-0588
      Attorney for Plaintiffs/Appellees

PAUL D. CROSS
100 Highway 64 West
Post Office Box 99
Monteagle, Tennessee 37356
      Attorney for Defendant/Appellant




                          AFFIRMED AND REMANDED




                                              BEN H. CANTRELL, JUDGE


CONCUR:
TODD, P.J., M.S.
KOCH, J.

                                OPINION
              The Chancery Court of Grundy County specifically enforced an oral

promise to sell a house and lot, by holding that the seller was estopped to raise the

statute of frauds as a defense. We affirm.



                                          I.



              In October of 1994 Mike Luzadder and his wife and family were living in

a double wide trailer in Tracy City. Mr. Luzadder knew Jerry Fowler, a partner in an

automobile shop in Sewanee, where they worked on some cars together and were

building a race car that Mr. Luzadder was going to drive.



              Mr. Fowler owned a house and lot on the North Bluff in Sewanee. He

lived in part of the house, but the other rooms were unheated and some of the water

pipes had burst the winter before. Mr. Fowler had previously listed the house for sale,

but had been unsuccessful in finding a buyer.



              According to Mr. Fowler he offered the house to the Luzadders for a

cash price of $38,000, and they tried but failed to get financing from a lending

institution. Then the parties agreed to a $38,000 sales price with a $4,000 down

payment and the $34,000 balance to be financed over a fifteen year period. The

$4,000 down payment was to be paid by $2,000 in cash and the transfer of the double

wide trailer to Mr. Fowler.



              The Luzadders’ version of the agreement differs from Mr. Fowler’s only

with respect to the down payment. They testified that the trailer alone satisfied the

$4,000 due up front.



              The Luzadders vacated the trailer and moved into the house. They

repaired the water pipes and added another heater to the unheated part of the home.


                                         -2-
They also had a written lease-purchase agreement prepared by their attorney. The

agreement obligated them to pay $365.00 per month for fifteen years 1 (beginning in

November of 1994), at which time they would become the owners of the property.

The agreement also provided that the trailer alone would satisfy the down payment.



                Mr. Fowler refused to sign the written agreement, mainly because of the

dispute over the down payment. He did not repudiate the agreement, however; he

continued to accept the $365.00 monthly payments, for which he executed a receipt

titled “house payment.” He also hired a handyman to move the trailer. The mover

removed the porches and broke the trailer apart, but because of inclement weather

he couldn’t move the trailer before March, when it was destroyed by fire. The

Luzadders had mortgage insurance on the trailer and it paid the remaining balance

on their mortgage.



                In the meantime, the Luzadders had converted a carport into another

bedroom, a closet, and a bath. They also replaced the water heater. During the

course of the construction Mr. Fowler advised them that they didn’t have the

agreement signed yet and that it would be unwise to make major renovations. After

the trailer burned in March, Mr. Fowler told the Luzadders that he wanted to withdraw

from the deal because he had lost the down payment. In July of 1995 he refused their

payment and later sought possession of the house through legal means. The

Luzadders filed this action to stop the eviction process and to enforce the contract.



                The chancellor found as a fact that the parties agreed on a sale of the

home for $38,000; that the buyers were to make a $4,000 down payment and to pay

the balance at $365.00 per month over fifteen years. The chancellor did not resolve

the dispute over whether the buyers agreed to pay $2,000 in cash in addition to



        1
         It is not clear how the amount of the payment was calculated, but the $365.00 monthly payment
amo rtizes a $34 ,000 loan over fifteen years at ten percen t interest.

                                                -3-
transferring the trailer to the seller, or whether the trailer alone satisfied the down

payment. The chancellor avoided that dispute by holding that when the trailer was

destroyed by fire, the risk of loss had not passed to Mr. Fowler. Therefore, the

Luzadders still owed the $4,000 down payment. But, contingent on payment of the

$4,000 and all past due monthly installments, the chancellor enforced the agreement.



                                           II.

                                           a.



              Our statute of frauds prohibits the enforcement of contracts for the sale

of real estate unless “The promise or agreement, upon which such action shall be

brought, or some memorandum or note thereof, shall be in writing, and signed by the

party to be charged therewith . . . .” Tenn. Code Ann. § 29-2-101(4). Contrary to the

general rule elsewhere, in Tennessee, the statute prevents enforcement of the oral

contract even though the parties have partially performed. Baliles v. Cities Service

Co., 578 S.W.2d 621 (Tenn. 1979); Knight v. Knight, 436 S.W.2d 289 (Tenn. 1969);

Goodloe v. Goodloe, 92 S.W. 767 (Tenn. 1906). It is also true that the note or

memorandum that satisfies the statute of frauds must contain the essential terms of

the agreement, Beazley v. Turgeon, 772 S.W.2d 53 (Tenn. App. 1989), and a

description by which the property can be located, Baliles v. Cities Services, 578

S.W.2d 621 (Tenn. 1979); Brister v. Brubaker’s Estate, 336 S.W.2d 326 (Tenn. App.

1960). Therefore, neither the part performance nor the receipts signed “house

payment” are sufficient to satisfy the statute of frauds.



                                           b.



              The harshness of the above rules, however, “has been mitigated by the

doctrine of equitable estoppel in exceptional cases where to enforce the statute of

frauds would make it an instrument of hardship and oppression, verging on actual


                                         -4-
fraud.” Baliles v. Cities Service, 578 S.W.2d at 624. The Luzadders insist that this

is such a case.



              The first question we must answer, however, is whether the parties ever

had a meeting of the minds on the sale of the house. The chancellor found as a fact

that they did agree on a sale price of $38,000, a $4,000 down payment, and the

balance to be paid over fifteen years at $365.00 per month. The evidence fully

supports that finding, but does the dispute over how the down payment was to be

made rob the agreement of the certainty required for enforceability?



              The fact that there is now a dispute over how much cash was to be paid

on the front end does not mean that the parties did not agree on that point. It is

possible that one side or the other is now seeking to gain an advantage by repudiating

their actual agreement. It is also possible that their minds never met. But, implicit in

the chancellor’s ruling is a finding that the parties agreed on the essential terms of the

contract. He simply did not find it necessary to specifically rule upon which version

of one of those terms was correct, since the destruction of the trailer had made the

question moot. Mr. Fowler was entitled to $4,000 as a down payment, and since the

risk of loss of the trailer had not passed to him, none of the $4,000 had been paid.

Therefore, the chancellor reasoned, regardless of whose version of the agreement we

accept, he is still entitled to be paid $4,000.



              We think the evidence supports a conclusion that the parties did have

a meeting of the minds. The Luzadders took possession and started to improve the

property; Mr. Fowler accepted their payments -- not as rent, but as “house payments;”

and he did not repudiate the sale until the trailer burned, when he feared that he must

bear the loss. It is not necessary to decide whether their minds met on the buyers’ or

the seller’s version of the agreement, since Mr. Fowler has been awarded the $4,000

down payment.


                                          -5-
               The remaining question is whether Mr. Fowler is estopped to raise the

statute of frauds as a defense.       We think that this is the proper case for the

application of the doctrine because the statute of frauds should not be used to “avoid

contracts or to ‘grant a privilege to a person to refuse to perform what he has agreed

to do.’” GRW Enterprises Inc. v. Davis, 797 S.W.2d 606 (Tenn. App. 1990) quoting

Cobble v. Langford, 190 Tenn. 385, 230 S.W.2d 194, 196 (1950).



               It cannot be disputed that the parties agreed on the essential terms of

the sale. The buyers took possession, repaired the house, added additional heat, and

started an addition to the house before they knew that the seller wanted to withdraw

from the deal. In addition, they have lost a place to live if they are forced to move

from the house. Their trailer burned in March of 1995 while Mr. Fowler was preparing

to move it. Mr. Fowler argues that the buyers were on notice immediately that they

didn’t have an agreement when he refused to sign the written contract. But, his

subsequent actions -- taking charge of the trailer and accepting the “house payments”

until July of 1995 -- would lead an ordinary person to believe that he had ratified the

transaction.   It is also undisputed that he did not unequivocally repudiate the

agreement until after the trailer burned and he felt that he had lost the down payment.



               The chancellor found that the Luzadders had enhanced the value of the

property by $2,000 before they had any notice of a problem with the transaction. Mr.

Fowler argues that the court could restore them to the status quo by awarding them

$2,000 and applying their monthly payments to the fair rental value of the house. But

that argument ignores the loss of the trailer. They have lost the trailer irretrievably and

irreparably. We think equity demands that the parties be held to their bargain.



               The judgment of the trial court is affirmed and the cause is remanded

to the Chancery Court of Grundy county for any further proceedings necessary. Tax

the costs on appeal to the appellant.


                                           -6-
                                  _____________________________
                                  BEN H. CANTRELL, JUDGE



CONCUR:




_______________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION



_______________________________
WILLIAM C. KOCH, JR., JUDGE




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