Marchelewicz v. Wehner

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
 40 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 91-185


 Mary Jane Marchelewicz                       Supreme Court

                                              On Appeal from
      v.                                      Chittenden Superior Court

 William Wehner                               May Term, 1992


 Matthew I. Katz, J.

 Michael Marks and Pamela J. Fitzgerald of Lisman & Lisman, Burlington,
   for plaintiff-appellant

 James J. McNamara of McNamara, Fitzpatrick, McCormick & Mertz, P.C.,
   Burlington, for defendant-appellee


 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


      MORSE, J.   This appeal arises out of a contract dispute between
 plaintiff-buyer Mary Jane Marchelewicz and defendant-seller William Wehner
 for the sale of Chipman Point Marina on Lake Champlain.  The parties
 executed a purchase and sale agreement, but the transaction was never com-
 pleted.  Buyer sued seller to recover her $25,000 deposit on the property,
 claiming breach of contract, or in the alternative, unjust enrichment.
 Seller countered that buyer's failure to give timely notice of her desire
 not to go forward with the sale justified retention of the deposit.  The
 case proceeded before a jury, but the trial court directed a verdict for
 defendant on the notice issue.  It entered judgment in defendant's favor
 after a bench trial on the equitable issue, concluding that seller had not
 been unjustly enriched.  Buyer appeals these rulings.  We reverse and remand
 for a new trial.
      Buyer signed the purchase and sale agreement on August 4, 1988.  The
 contract called for closing on or before September 30, 1988, and required a
 deposit of $25,000.  It also included the following mortgage contingency:
         If, despite the best efforts of the Purchaser, the
         Purchaser is unable to obtain, by no later than . . .
         August 30, 1988, from a bank or similar financial
         institution . . . a written commitment for a mortgage
         loan to finance the acquisition of the Property, with
         funds to be available for disbursement on or prior to
         closing Date, . . . THE PURCHASER SHALL HAVE THE RIGHT
         TO TERMINATE THIS CONTRACT AS IT RELATES TO THE MORTGAGE
         CONTINGENCY BY GIVING NOTICE TO THE SELLER NOT LATER
         THAN . . . 72 HOURS AFTER SAID DATE AND TIME.


 (Emphasis in original).  Thus, according to the contract, buyer had to give
 notice not later than September 2, 1988, in order to terminate the contract.
 The "Terms and Conditions" printed on the form's reverse provided:
         Default: If the purchaser shall fail to complete said
         purchase as provided herein, or is otherwise in default,
         the Seller may terminate this Contract, retaining all
         deposit money as agreed and liquidated damages, or may
         pursue the Seller's rights to all legal and equitable
         remedies provided by law . . . .

 The total purchase price was $625,000, and buyer sought financing for almost
 the entire amount.   The agreement expressly provided that notices could be
 given orally.  Because seller is deaf, buyer communicated exclusively with
 Calvin Robinson, seller's listing agent.  Robinson drafted the agreement and
 retained the deposit.
      During August 1988, buyer applied to commercial lenders at two banks
 for mortgage financing for the purchase.  Unremarkably, both institutions
 required financial information about the marina before considering a loan.
 According to her testimony, she repeatedly asked Robinson during August for
 the records showing the historic financial performance of the marina.  On
 August 29, 1988, because she had not received the pertinent records neces-
 sary for financing, Robinson prepared an "Addendum to Purchase and Sale
 Contract" which would have extended the deadline for satisfying the mortgage
 contingency until September 13, 1988.  He obtained buyer's signature, but
 seller refused to sign it because he did not wish to extend the September 30
 closing date.
      Buyer continued her efforts to secure a loan after that date.  She
 obtained a letter from a loan officer at the Vermont Federal Bank specifying
 the financial information he would require in order to process her loan
 application.  Robinson brought the letter to seller and urged him to comply
 with the bank's request for information.  Seller provided the financial
 information on September 20 or 21, but the loan request was denied because
 the cash flow from the business could not reasonably support the mortgage
 payments.  Buyer requested release of her deposit, but seller declined.
      Buyer testified that before the September 2 financing deadline, when
 she learned seller had not signed the extension agreement, Robinson urged
 her to continue trying to obtain financing for the purchase after the
 deadline "and see if we can't pull this together for September 30th."  She
 replied, "If we do this without his signing, will my deposit be in
 jeopardy?"  According to buyer, Robinson answered, "No."
      Plaintiff argues that the trial court erred in directing a verdict for
 seller.  We agree.  Plaintiff produced enough evidence on the factual issues
 of Robinson's authority to bind buyer as his agent and of "termination
 notice" to reach the jury.
      In determining the propriety of a directed verdict, this Court must
 view the evidence in the light most favorable to the nonmoving party,
 excluding any modifying evidence.  See Smith v. Gainer, 153 Vt. 442, 445,
 571 A.2d 70, 71 (1990).  Buttressing deference to the nonmoving party in
 this case is the rule that courts should narrowly construe forfeiture
 clauses.  See Champlain Oil Co. v. Trombley, 144 Vt. 291, 297, 476 A.2d 536, 539 (1984) (breach of a forfeiture provision must be more than "trivial
 or technical").
      Whether Robinson's agency extended to the authority to bind the seller
 was not seriously contested at trial.  Such a determination, however, is a
 question of fact proper for the jury's decision.  Estate of Sawyer v.
 Crowell, 151 Vt. 287, 292, 559 A.2d 687, 691 (1989) ("existence and extent
 of an agent's authority is a question of fact").  Seller made all his
 communications with buyer through Robinson and, according to buyer, Robinson
 made representation and behaved as if he were speaking for seller.  Because
 of this evidence, this factual issue should have been left to the jury.
      On the issue of notice, the mortgage contingency provision was silent
 as to the specific words to be used to terminate the contract.  A jury could
 find it reasonable for plaintiff to believe that she needed to do no more
 than she did in complying with the notice requirement to protect her
 deposit.  If the jury believed that Robinson assured her the deposit would
 not be in jeopardy despite her failure to request termination on September
 2, 1988 and encouraged her to continue to seek financing, it could conclude
 that seller had waived the time of notice under the mortgage contingency.
 S. Williston, A Treatise on the Law of Contracts { 741, at 512-13 (3d ed.
 1961) (time provision in a contract must be analyzed in terms of the actual
 intention of the parties to the agreement, as evinced by their conduct, and
 a breach of the time provision may be waived).  Based on plaintiff's evi-
 dence, the jury could have determined that Robinson had been sufficiently
 informed in keeping with the purpose of the mortgage contingency provision.
 If Robinson assured her that her deposit was safe despite his principal's
 failure to sign the extension, the jury could reasonably conclude that the
 financing contingency notice was functionally met by the buyer's and
 Robinson's words and conduct.  See MacGowan v. Gaines, 127 Vt. 477, 481, 253 A.2d 121, 123 (1969) (notice sufficient when "the person sought to be
 affected by it knows of the existence of the particular fact in question, or
 is conscious of having the means of knowing it").  It was improper to take
 this factual dispute from the jury.
      Reversed and remanded.



                                         FOR THE COURT:




                                         Associate Justice