Supruniuk v. Petriw

WEATHERBEE, J.: The parties to this controversy are Russian speaking farm owners of the Richmond area. The Plaintiff, John Supruniuk, seeks an order of specific performance of an agreement written by one of the Defendants, Ilija Petriw, in Russian, to sell the Plaintiff the Defendants' 100 acre farm. After the completion of testimony before a jury, the presiding Justice took the case from the jury and ordered the Defendants to convey the property to the Plaintiff upon payment by the Plaintiff of the agreed purchase price. The Defendants appealed. We sustain the appeal.

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The Undisputed Facts

It is undisputed that the Defendant Mr. Petriw made known to the Plaintiff his desire to sell his farm and that after a discussion they agreed upon a purchase price of $6500.00. Mr. Petriw (who spoke only Russian) prepared an agreement written in the Russian language which the Plaintiff, Mr. Petriw, and Mr. Petriw's wife, Anastasia, also signed. [FN2] The Plaintiff was furnished with a copy of the deed which had conveyed the farm to the Defendants and he initiated procedures to obtain a loan from the Federal Housing Administration to enable him to complete the purchase, which was to be not later than July. Sometime after that Mr. Petriw decided that he did not wish to sell the farm to the Plaintiff and he told the Plaintiff that he would not complete the agreement.

[FN2] The following is a translation, accepted as accurate by the Plaintiff and Defendants, of the written agreement:

"AGREEMENT
I, Ilija Petriw, and my wife, Anastasia Petriw are selling one farm (approximately one hundred acres) which is located on Langdon Road, Richmond, Maine.
I, John Supruniuk, am buying this farm and I am paying two hundred dollars ($200.00) as my deposit and after the closing deal (approximately in July, not later) I shall pay the additional six thousand and three hundred dollars ($6,300.00).
We confirm this by signing:
1. Owners of the farm:
Ilija Petriw 
Anastasia Petriw 
2. The buyer of the farm John Supruniuk"

The Disputed Facts

Mr. Petriw insists that the writing did not include all the terms of their agreement. He testified (through an interpreter) that he was to retain the right to live upon the farm until his death and that during Mr. Petriw's life the Plaintiff was to have the use of the farm as a depository for his chicken manure. He testified that the Plaintiff promised to give him a deposit of $200.00 after the agreement was signed and that the Plaintiff, who was also a dental technician, also promised to make him some dentures. He said the Plaintiff never made the impressions for the dentures or paid the $200.00.

Mr. Petriw said that the Plaintiff insisted, over Mr. Petriw's objections, that Mr. Petriw should be the one to write out their agreement in longhand. He said that the agreement which he wrote for their signatures did not contain the promise to make the dentures or the reservation of the life estate because

"He told me at the time of making the agreement that we would not write everything down because it would take too much time; we'll put in just the main points, and the rest we'll put in when we get ready to sign the main papers."

The Plaintiff testified that he paid the $200.00 deposit by check in hand. Mr. Petriw denies this. The Plaintiff says there was no agreement that he should make dentures for the Defendant nor any agreement that a life estate was to be retained by the Defendant. The Plaintiff did say he told Mr. Petriw that Mr. Petriw could remain on the property for one year. The Plaintiff denies that he gave Mr. Petriw directions as to the contents of the written agreement. The Plaintiff testified that when his loan was approved by the F.H.A. and his money was available he went to Mr. Petriw and asked Mr. Petriw to go to an attorney's office to execute the deed to the plaintiff and that Mr. Petriw refused to go with him to complete the sale. The Plaintiff's testimony, given in imperfect English, leaves it unclear whether he actually tendered the balance of the purchase price to Mr. Petriw and it was refused or whether he only told Mr. Petriw that the money was available for payment as soon as the deed was executed and approved. Mr. Petriw denies that the Plaintiff came to him and asked him to go with him to the attorney's office to complete the transaction. He says that in June he met the Plaintiff who, "at that time ... knew that [I] did not wish to sell the farm", and that "he shook my hand, and we parted as good friends".

[Discussion of other issues omitted] ....

The Plaintiff's Check Book

Inasmuch as this matter will probably be tried again, we feel that another claimed error should be discussed briefly. The Plaintiff offered, and the Court admitted, over the Defendants' objections, what the Plaintiff called "the journal book what I keep my records when I pay check to some people. . . . Each check when I write," and which the Defendants refer to as the Plaintiff's "check stubs". In fact, the exhibit is recognizable as a portion of a type of check book which provides a page on which may be recorded the check number, date, name of payee and amount of the several checks drawn (together with the balance remaining on deposit) -- contrasting in form only with the familiar type of small book in which each check has a separate stub for the recording of such information.

The book contained the entry:

"553 5/10 Petriw & Anastasia 200 = 275.14 [balance]"

The exhibit was offered as an original record to prove the payment of the $200.00 "deposit". (The check -- if one in fact was given -- was never presented for payment.) Defendants argue that this journal is not admissible under the common law "shop-book rule" or under 16 M.R.S.A. § 356,[FN5] and we agree. In construing that statute we have held that "memoranda made for the convenience or purposes of the one who made them" are not intended to be included under the exception. Other than that the Plaintiff was a farmer who needed to keep some record of such of his expenditures as were made by check, little else was established to show the regularity, objectivity, and reliability upon which this exception is founded.

[FN5] §356. Accounts admissible though hearsay or self-serving:

"An entry in an account kept in a book or by a card system or by any other system of keeping accounts shall not be inadmissible in any civil proceeding as evidence of the facts therein stated because it is transcribed or because it is hearsay or selfserving, if the court finds that the entry was made in good faith in the regular course of business and before the beginning of the civil proceeding. The court in its discretion, before admitting such entry in evidence, may, to such extent as it deems practicable or desirable but to no greater extent than the law required before June 30, 1933, require the party offering the same to produce and offer in evidence the original entry, writing, document or account from which the entry offered or the facts therein stated were transcribed or taken, and to call as his witness any person who made the entry offered or the original or any other entry, writing, document or account from which the entry offered or the facts therein stated were transcribed or taken or who has personal knowledge of the facts stated in the entry offered."

It appears to us that the exhibit did not qualify for admission.

The entry will be: Appeal sustained. Remanded to the Superior Court for retrial.

Is the position taken by the Maine Supreme Court too strict? Isn't the entry in the checkbook at least some proof that a check was issued? Does it provide some corroberation of the plaintiff's assertion that the deposit check was written and delivered to Mr. Petriw? Do people generally manage their personal checkbooks in a way which would give the entries sufficient reliability to serve as proof in the absence of cross examination?