2010-275 Winecellar Farm, Inc. v. Hibbard & a.

No. 2010-275

Strafford

order of the Superior Court (Brown LYNN, J. The petitioner, Winecellar Farm, Inc. (Winecellar), appeals an

McNeill, Taylor & Gallo, P.C.

Steiner Law Officer, PLLC ___________________________

Bedard’s estate, cross-appeal, arguing that the trial court erred by: (1) under a lease agreement. The respondents, thirteen individual heirs of Eva doctrine of part performance; and (3) continue haying activity in perpetuity Farm; (2) specific performance to purchase the Bedard Farm under the decree pro confesso awarding it specific performance to purchase the Bedard

on the brief), for the respondents. orally), and Bosen & Associates, PLLC, of Portsmouth (Christopher P. Mulligan

orally), for the petitioner.

Opinion Issued: July 21, 2011

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as feel the time is right.” The letter also stated: p. 2 payment (maybe the back field . . .), or eventually buy your property when you and stated: “we would still be interested to lease your land for a monthly mov[ing] too fast in asking [the Bedards] to lease [them] land for the buffalo,” By letter dated July 24, 2004, the Riefs expressed their “apologies [for]

declined the offer. proposed leasing part of the Bedard Farm to pasture buffalo, but the Bedards with the terms and conditions of this agreement.” Later in 2004, Winecellar maintains the access ways, roadways and insurance coverage in accordance continue this activity every year in perpetuity as long as Winecellar Farm the Haying Agreement provided: “Bedards agree to allow Winecellar Farm to ways and roadways, including snow removal from the driveway. Additionally, practices. In exchange, it would be responsible for maintaining certain access Bedard Farm, and maintain and harvest the fields in accordance with certain would “harvest hay throughout the appropriate times of the year” from the Understanding to Harvest Hay” (Haying Agreement), providing that Winecellar On May 1, 2004, Winecellar and Ms. Bedard signed a “Memorandum of

Bedards did not sign it. the Bedards’ driveway. A proposed “Land Lease” was attached to the letter; the hay, in exchange for a monthly payment of $500 and winter maintenance of November 2003, Winecellar offered to lease the Bedards’ land, in order to cut and to give the Bedards a life tenancy. The offer was not accepted. In property in writing on September 28, 1997, offering to purchase it for $350,000 time, in farming both properties together. They first proposed buying the buying the Bedard Farm when the Bedards were ready to sell it and, until that The Riefs informed the Bedards on multiple occasions of their interest in

relationship with the Bedards. began living on their property in 1998, and enjoyed a close, friendly (Hereinafter, Winecellar and the Riefs are used interchangeably.) The Riefs purchased Winecellar, a working farm adjacent to the Bedard Farm. away in 2006. Neither ever married. In 1992, Craig and Jennifer Rief were siblings who lived their entire lives on the Bedard Farm until they passed found by the trial court or as otherwise supported in the record. The Bedards and Leo and Eva Bedard, the former owners of the Bedard Farm in Durham, as We set forth the facts surrounding the relationship between Winecellar

pastures during the litigation. We affirm in part, reverse in part, and remand. (2) failing to order Winecellar to turn over lease payments for its use of the awarding Winecellar a purchase right regarding certain buffalo pastures; and stamped envelope.

p. 3 please sign one copy and return it to me in the self-addressed would you too. If this Letter of Understanding is acceptable to you, intentions in writing would give me peace of mind, as I am sure it

including the purchase of new haying equipment. Having our I have invested a lot of time and effort in raising the buffalo,

us to purchase your property when you do decide to sell. . . .

documents the verbal commitment we have made to each other, for acceptable [to] you. This is not an obligation to sell. It simply document your intention to sell us the property at a time and price . . . I have enclosed a Letter of Understanding that would

. . . .

writing. but was hopeful that you would consider documenting this in past to sell us the property at a time and price acceptable to you,

said, I have greatly appreciated your verbal commitments in the support the buffalo if we lost access to your property. With that property and yours as working farms. We would not be able to raising buffalo and fulfilling our long-term commitment to keep our Your property is obviously very meaningful to us for the purpose of

payment” stated in part: some point in the future. A note accompanying the September 2005 “lease in writing their understanding that they could purchase the Bedard Farm at number of buffalo. The following year, the Riefs expressed their desire to put equipment in order to pasture buffalo on the leased land, and purchased a 3 month, invested a significant amount of money in fencing and other month (Pasture Agreement). The Riefs began paying the Bedards $200 per Bedard Farm to pasture a buffalo herd in exchange for payments of $200 per understanding between the parties for Winecellar to use two back fields on the “Land Lease for Winecellar Farm to pasture buffalo,” the Riefs set forth an About two months later, by letter dated September 27, 2004, entitled

to merge the two farms. of your property — it would mean a lot to our family for our dream . . . Please let us know if you are still considering us as the buyer

your decision in due time. . . .

whatever price you wanted. We also respected your need to make us when it came time to sell your property and we would pay you We have always had the impression that you would consider p. 4 Ms. Bedard signed the document, but instead signed it as a “witness” hours witnessed all three signatures. However, Mr. Hoginski was not present when letter on April 8, 2006. The signed letter shows that “Stephen Hoginski” The document reflects that Mr. Rief, Mrs. Rief and Ms. Bedard all signed the 2006 proposal, with the exception that it did not contain Mr. Bedard’s name. The attached “Letter of Understanding” was identically worded to the January

and let you stay for as long as you would like. you, Jennifer and I would be more than happy to buy the property that you consider us when you do decide to move. If it would help possibly repay us for everything — you don’t have to. All I ask is You mentioned the other day that you don’t know how you could

and occasions, I would like to acquire your property when you are ready to sell it,” their desire to purchase the property, stating, “As we have discussed on several Bedard accompanying the April “lease payment,” the Riefs again expressed On March 11, 2006, Leo Bedard died. Later that month, in a note to Eva

Bedard’s death. month; they identified each payment as a “land lease payment” until after Eva Bedards did not sign the letter. The Riefs thereafter paid the Bedards $400 per Riefs “at a time and price acceptable to Eva Bedard and Leo Bedard.” The total of $400 per month),” the Bedards would agree to sell their farm to the sum of an additional $200 per month paid under the current land lease (for a The attached “Letter of Understanding” provided that “[i]n consideration of the

me in the self-addressed envelop[e]. of the letter on behalf of yourself and Leo and return one copy to consideration. If this is acceptable to you, please sign both copies 4

Letter of Understanding and an additional $200 for your maintain the property as an operating farm. I have enclosed a property when you are ready to sell it to support the buffalo and to As we have discussed in the past, I would like to acquire your

the future; the note accompanying the February “lease payment” stated: sought written confirmation of their ability to purchase the Bedard Farm in month” to fence more land for pasturing the buffalo. Further, they again In January 2006, the Riefs offered to pay “an additional $200 per

letter, and the Riefs continued to pay the Bedards $200 per month. opportunity to match any third-party offer. The Bedards did not sign the the property “at a time and price acceptable to owner” and for the would pay $200 per month in exchange for the Bedards’ promise to sell them The attached “Letter of Understanding” set forth terms under which the Riefs answer the amended complaint, entitling it to a decree pro p. 5 reconsideration, arguing among other things that the respondents failed to

decree pro Winecellar first argues that the trial court erred by refusing to grant a

ruled that “Winecellar will be permitted to purchase the buffalo pastures for Pasturing and Haying Agreements are not enforceable against the Estate,” and order the Estate to sell the Bedard Farm to Winecellar[,] [found] that the In February 2010, following a bench trial, the trial court “declin[ed] to 5

confesso pursuant to Superior Court Rule 131 when the Winecellar moved for a decree pro

Subsequently, based on the failure of the heirs to timely file an answer, respondents filed appearances, they did not timely file responsive pleadings. plea, answer, demurrer or other response” by November 6, 2009. Although the court ordered the heirs to file a written appearance by a date certain and “a Winecellar appealed, and the respondents cross-appealed. as necessary parties and to add a quiet title claim against them. The trial record before us does not contain the trial court’s order on this motion. Winecellar filed an emergency motion to add the individual heirs of the estate payments for use of the pastures during the pendency of the litigation. The when it declined to order Winecellar to turn over to the estate the rental performance and on a purchase and sales agreement. In August 2009, estate to convey to it the Bedard Farm based on the doctrine of part erred when it granted Winecellar the right to purchase the buffalo pastures and preliminary injunction, Winecellar filed an amendment seeking to compel the respondents also filed a limited motion to reconsider, arguing that the court its order, the trial court denied the motion for reconsideration. Some of the Agreement executed in April 2006. After the trial court granted the motion for including a Haying Agreement, Pasture Agreement and a Purchase and Sale request for specific performance. Other than correcting a scrivener’s error in It alleged that “[t]hree separate written agreements” governed its rights, confesso on its removing fencing equipment maintained on two pastures on the Bedard Farm. injunction seeking to preclude her estate from evicting its herd of buffalo and clause. In November 2006, Winecellar filed a petition for a preliminary Farm to pass to her nieces and nephews in accordance with a residual property Ms. Bedard’s will executed in December 2005 provides for the Bedard

and also ordered a voluntary nonsuit as to the estate. Farm for its then-current fair market value. The trial court denied the motion

Understanding” in the registry of deeds. 2006, Ms. Bedard died. The Riefs subsequently recorded the signed “Letter of later outside of her presence. Approximately three months later, on June 27, p. 6 “Its purpose is to promote certainty and to protect from frauds and perjuries in charged, or by some person authorized by him in writing.” RSA 506:1 (2010). some memorandum thereof, is in writing and signed by the party to be contract for the sale of land unless the agreement upon which it is brought, or The statute of frauds provides: “No action shall be maintained upon a

Farm, and to its $200 monthly payments toward the purchase right. statements made by the Bedards affirming its right to purchase the Bedard exception to the statute of frauds. It points to its reliance on oral and written 6 specific performance pursuant to the doctrine of part performance, an Next, Winecellar argues that the trial court erred in failing to grant it

failed to establish that the trial court erred in denying the requested decree. estate and the heirs involved the “very same merits.” In short, Winecellar has asserted in its motion to add the heirs as parties that its claims against the notably, in its brief, Winecellar identifies no prejudice. Indeed, Winecellar Although Superior Court Rule 131 requires a decree pro court found that Winecellar suffered no prejudice from the delayed answer and, respondents essentially replaced the estate as responding parties. The trial been disputed by the estate from the outset of the litigation, and the The allegations underlying Winecellar’s request for injunctive relief had

When the trial court denied Winecellar’s request for a decree pro

Ct. R. Preface; see Donnelly v. Eastman, 149 N.H. 631, 633 (2003). application of any rule for “good cause” and “as justice may require.” Super. may require.” Super. Ct. R. 131. Indeed, the trial court may waive the exercise its discretion to set aside such a decree “upon such terms as justice respondent’s neglect to file an answer ordered by the court, the trial court may

discern no error in its decision. the petitioner’s request to correct the decree pro confesso is denied.” We Motion to Extend Time to Answer the Final Amended Petition is granted and procedure over substance. To close this procedural loophole, the respondents’ raised pretrial. The Court then and now believes such a request is form and heirs to answer the amended complaint prejudiced no one. This issue was confesso in its motion to reconsider, the court determined: “The failure of the

being added as parties to the on-going litigation. allegations that required a responsive pleading, and that they did not object to initial petition was filed in 2006, that Winecellar’s motion did not raise new however, that the estate had defended against Winecellar’s claims since the necessary parties and to add a quiet title claim. The respondents contend, respondents failed to timely file a response to its motion to add them as an oral promise to sell the Bedard Farm to Winecellar. See p. 7 It is not clear, however, whether the trial court found that the Bedards made The trial court ruled that the doctrine of part performance did not apply.

doctrine applies. Greene performed by the purchaser to determine whether the part performance Humiston v.

erroneous). equitable estoppel will be upheld unless unsupported by evidence or legally Adjustment, 157 N.H. 710, 715 (2008) (trial court’s ruling on applicability of legally erroneous); Cardinal Dev. Corp. v. Town of Winchester Zoning Bd. of factual determinations that will be upheld unless unsupported by evidence or Town of Gilford, 160 N.H. 43, 58 (2010) (elements of municipal estoppel require grave injustice.” Id supported by the evidence or is erroneous as a matter of law. Cf. Sutton v. judicial device intended to prevent the terms of a formal statute from doing finding of fact, we will uphold the trial court’s decision unless it is not We consider three factors in analyzing the sufficiency of the acts Bedards made to sell it the Bedard Farm. “The part performance doctrine is a However, to the extent a particular element of part performance requires a part performance to seek specific performance of the oral promise it claims the is therefore subject to de novo review.” Id. (quotations and citations omitted). sufficient to satisfy the statute of frauds. Rather, it relies on the doctrine of particular acts suffice to constitute part performance is a question of law, and on any other ground.” Id. at 729 (quotations omitted). “Whether or not some degree evidential of the existence of a contract and not readily explainable unjust for the defendant to hide behind the statute; and (3) one[s] that [are] in that the remedy of restitution is not reasonably adequate, making it very without notice that the defendant has already repudiated the contract; (2) such are: “(1) in pursuance of the contract and in reasonable reliance thereon,

as to incur an unjust injury and loss.” Id. (quotations and citation omitted). Winecellar does not claim any writings between the parties were in performance or pursuance of the contract, so far to alter his or her position contracts for the sale of real estate, where the purchaser has proceeded, either brackets, and quotations omitted). The doctrine “is frequently applied to oral the purchaser who has performed his part of the agreement.” Id. (citation, when application of the statute would result in fraud or irreparable injury on “effectively withdraws contracts from the operation of the statute of frauds,

considerations, are present.” Id. at 728 (quotations and brackets omitted). when some operating facts, such as fraud, part performance or other equitable the other,” and, thus, “the law seeks to alleviate the harshness of the statute of frauds “can produce frustration on the one hand, and unethical conduct on omitted). We have recognized, however, that strict enforcement of the statute land transactions.” Greene v. McLeod, 156 N.H. 724, 727 (2008) (quotation expressed its interest to lease the land to pasture the buffalo “or p. 8 of a promise to sell the farm, and in its July 2004 correspondence, Winecellar erroneous. For example, the written agreements themselves make no mention established that these conclusions are unsupported by the evidence or legally were not dependent on the oral agreement to sell the farm. Winecellar has not the Bedards to sell [it] the Bedard Farm,” and thus that the written agreements and their accessories are . . . explainable on grounds other than a promise by The trial court concluded that Winecellar’s “expenditures on the buffalo

finding. farm should have been in writing, and Winecellar does not challenge this Riefs made their investments with knowledge that an agreement to sell the court found that Winecellar’s reliance was not reasonable in part because the that it claims was established over the preceding years. We note that the trial Letter of Understanding signed by Eva Bedard as evidence of its purchase right to purchase the Bedard Farm. Further, Winecellar points to the April 2006 2006 constituted land lease payments, rather than consideration for the right concluded that the additional $200 payments it made commencing in January buffalo and haying equipment. It argues that the trial court erroneously it took possession of the haying pastures, invested in fencing, and purchased Agreements, and that in reliance on those agreements and the promise to sell, it the farm at some point in the future led to the written Haying and Pasture Winecellar contends that the Bedards’ repeated verbal assurances to sell

agreement, for the pasturing of buffalo on the Bedards’ property. buffalo pastures when the parties were negotiating, and later under an Specifically, it determined that Winecellar spent money on setting up the explainable on a ground other than evidence of the existence of a contract. existence of a contract, the trial court ruled that the Riefs’ actions were readily documents were ever signed. With respect to the factor relating to evidential memorialize in writing the alleged agreement between them, but none of the agreement, and presented documents to the Bedards on several occasions to writing,” expressed concern about being too aggressive in seeking a written that the Riefs “were fully aware that the agreement should have been in promises the Bedards may have made to them was not reasonable,” reasoning doctrine, the trial court found that Winecellar’s reliance on “the alleged oral With respect to the reasonable reliance factor of the part performance

performance as challenged on appeal. sale of the Bedard Farm. Therefore, we review the trial court’s ruling on part course and assume, without deciding, that there was an oral promise for the the threshold issue of the existence of an oral promise, we follow the same addressed Winecellar’s claim of part performance without specifically ruling on presupposes the existence of an oral promise). Because the trial court Bushnell, 118 N.H. 759, 762 (1978) (application of part performance doctrine unreasonable restraint on alienation of real property. We agree. p. 9 relied upon language was not enforceable because it would constitute an see the farm continue as an operating farm.” The trial court ruled that the protect the property from development as other than a farm” and “desired to interests being protected by the perpetual lease” in that “[b]oth desired to According to Winecellar, “both the Riefs and the Bedards had justifiable with “the ultimate intent that Winecellar Farm would own the Bedard Farm.” language of the agreement grants it the right to hay “in perpetuity” consistent Haying Agreement is not a perpetual leasehold. It contends that the plain Winecellar next argues that the trial court erred by concluding that the

the Bedards from the operation of the statute of frauds. doctrine did not withdraw any oral contract for the sale of land between it and Accordingly, we affirm the trial court’s decision that the part performance

Agreements” until after Winecellar did not identify the payments as “Land Lease and Purchase correspondence described the monies as the “land lease payment[s],” and Understanding” that accompanied the January 2006 note, Winecellar’s own erroneous. As noted by the trial court, the Bedards did not sign the “Letter of not consideration for a purchase right, is unsupported by the record or legally that the additional $200 monthly payments constituted land lease payments, Winecellar also has failed to establish that the trial court’s conclusion

that the doctrine of part performance does not apply. persuaded that this document demonstrates that the trial court erred in ruling Given the questionable circumstances surrounding its pedigree, we are not evidence of Ms. Bedard’s intent to abide by her alleged promise to sell the farm. Winecellar does not challenge this decision but relies on the document as sign the document, and then recorded the . . . Letter in the Registry of Deeds.” witnessed fraudulently, knowing that Mr. Hoginski had not seen Ms. Bedard enforce the document because “[t]he Riefs had Ms. Bedard’s signature “Letter of Understanding” signed by Ms. Bedard, the trial court refused to

one partly performed”). performance; and the agreement set up must appear to be the same with the conveyance of land, “and must [have been] done with a direct view to its would not have been done except by reason of the verbal agreement for the Baldwin, 61 N.H. 583, 586 (1881) (act of part performance must be such as alone rather than the existence of an oral promise to sell. See Abbott v. the farm is readily explainable based on the Haying and Pasture Agreements the record supports the conclusion that Winecellar’s possession of a portion of your property when you feel the time is right.” (Emphasis added.) Similarly, p. 10 In Pope v. Lee

assessing the reasonableness of the continual renewal right, we considered the governing rental increases, adjustments and taxes. Id. at 297-300. When payment based on the applicable consumer price index, and included clauses lease was for a seasonal ice cream and food business, established a lease view of the justifiable interests of the parties. Pope, 152 N.H. at 306-07. The a tenant the right to continual renewal of a commercial lease as reasonable in

N.E.2d at 381. designated method for fixing the purchase price.” Metropolitan Transp., 492 unreasonable include, “its purpose, duration and, where applicable, the to be considered when determining whether a particular restraint is clause, the greater must be the justification for that enforcement.” Id. Factors greater the quantum of restraint that results from enforcement of a given alienation which would result from enforcement, on the other. Thus, the one hand, and the quantum of restraint, the actual practical effect upon exists between the justification for enforcement of a particular restraint on the policy of preserving the free alienability of real property: “[A] direct relationship balancing the policy of respecting the intent of contracting parties with the omitted). Thus, assessing the reasonableness of a challenged restraint involves Developers v. Marathon Dev. Cal. from the ordinary channels of trade and commerce.” Ventures Stores v. Pacific, 826 P.2d 710, 716 (Cal. 1992) (quotation retardation of the natural development of a community by removing property defining it by guideposts that are reasonably to be expected.” Carma of its current beneficial owner and upon the desirability of avoiding the legalisms. Our task is not to block the business pathway but to clear it, things) the desirability of keeping property responsive to the current exigencies to invalidate bona fide transactions by the imported application of esoteric “The rule against restraints on alienation is based upon (among other against restraints on alienation is to be avoided. Surely the courts do not seek disposition of property). However, “[r]igid application of the ancient rule owners from imposing conditions on conveyances that block the free limiting the power of an owner to create uncertain future estates by forbidding common law rule against unreasonable restraints serves general purpose of Metropolitan Transp. v. Bruken Realty, 492 N.E.2d 379, 381 (N.Y. 1986) (the Beach Co. essential to the welfare of society.” Horse Pond Fish & Game Club v. Cormier, 980 S.W.2d 176, 184 (Mo. Ct. App. 1998) (quotations omitted); see assumption that freedom to alienate property interests which one may own is leasehold, we are mindful that “[m]uch of modern property law operates on the

“[U]nreasonable restraints will be held invalid.” Id. “reasonable in view of the justifiable interests of the parties.” Id. intent to create a perpetual leasehold where the intended restraint is 133 N.H. 648, 653 (1990) (quotation omitted). We will enforce the parties’

In considering whether the Haying Agreement constitutes a perpetual p. 11 Farm due to “the existence of [the] claimed encumbrance amended inventory reflects that an appraiser reduced the value of the Bedard unreasonable restraint on alienation, this argument fails on its merits. The court. Aside from our conclusion that the Haying Agreement constitutes an $400,000 when they failed to object to the amended inventory filed in probate lease as an encumbrance on the property and realized a tax benefit of over a perpetual lease. According to Winecellar, the heirs relied on the perpetual probate court estops them from denying the nature of the Haying Agreement as

the confines of the law,” id restrict the use of his or her property “to any use that he or she sees fit, within Agreement. Therefore, while respecting the right of a contracting land owner to Bedard Farm would be willing to do so in light of the existence of the Haying believe it reasonable to conclude, that a bona fide purchaser seeking to buy the farm-related use. There is no evidence in the record to suggest, nor do we the fields in question for cultivation of crops, pasturing of animals or other 11 who might desire to continue using it for farming purposes but who wish to use We briefly address Winecellar’s argument that the heirs’ conduct in wishing to maintain the property as a farm, but even to prospective purchasers alienability of the Bedard Farm, not only to any potential purchasers not allow for the perpetual harvesting of hay from the property by a neighboring adjacent farm “in perpetuity,” potentially effects a significant hindrance on the. . . [which] would This agreement, while purporting to grant a significant benefit to the

constitutes an unreasonable restraint on the alienation of real property. demonstrate that the trial court erred in ruling that the Haying Agreement

The facts before us stand in stark contrast to Pope “throughout the appropriate times of the year.” right to hay fields on property conveniently located adjacent to its farm million in coverage. In exchange, the agreement grants Winecellar a perpetual and the retention of an umbrella liability insurance policy providing for $1 accordance with practices recommended by the UNH Cooperative Extension,” placed on Winecellar are the maintenance of the fields and harvesting “in removal from the driveway during winter months.” The only other obligations access ways and roadways throughout and to the property, including snow Rather, the consideration received by the landowner is the maintenance of “the Agreement includes no provision for the payment of any rent or property taxes.

Id. business that is already fully in operation and occupied by a paying tenant.” unreasonable to believe that potential buyers may desire to purchase a foreclose the landowners from selling the premises, stating: “It is not 307. Ultimately, we determined that the continual renewal term did not alienability of the land created by the right of continual renewal clause. Id. at justifiable interests at stake in light of the extent of the restraint on the frauds. See p. 12 withdraws an oral contract for the sale of land from operation of the statute of considered when determining whether the doctrine of part performance [Winecellar’s] counsel pending a determination of the outstanding claims,” and As outlined earlier, the inadequacy of restitution is one of three factors the $400 monthly payments under the Pasture Agreement “were held by the buffalo pastures during the pendency of the litigation. They contend that erred by not ordering Winecellar to pay them the lease payments for its use of One final issue remains. The respondents argue that the trial court

pastures it has been leasing from the Bedard Farm’s owners . . . .

recover. been leasing at a price to be determined by an independent appraiser. It ruled: court to consider what, if any, monetary relief Winecellar may be entitled to trial court awarded Winecellar the right to purchase the buffalo pastures it had Accordingly, we reverse this award of a purchase right and remand to the trial Despite its ruling that the doctrine of part performance did not apply, the court has rejected the applicability of the part performance doctrine. award of a land transfer based on the inadequacy of restitution where the trial Winecellar has not cited, nor are we aware of, any authority supporting the circumstance, the award of a monetary recovery provides adequate relief. Accordingly, Winecellar will be permited to purchase the buffalo allowing the oral contract to be specifically enforced because, in that preparing the fields on the Bedard Farm to pasture their buffalo. restitution is available as a reasonably adequate remedy, this weighs against amount of money and effort that it will not be able to recoup in the statute” (quotation omitted)). However, the point of this factor is that if reasonably adequate, making it very unjust for the defendant to hide behind

Greene, 156 N.H. at 729 (“the remedy of restitution is not

the court understands that Winecellar has invested a significant

because it misapplied the law of part performance. We agree. erred when it awarded Winecellar the right to purchase the buffalo pastures Turning to the cross-appeal, the respondents argue that the trial court

conceding the validity of the claimed encumbrance or its perpetual nature. claimed encumbrance on the value of the property does not equate to added.) However, the fact that the heirs acknowledged the impact of the farm, thereby negating the highest and best use of the property.” (Emphasis p. 13 Affirmed in part; reversed in

DALIANIS, C.J.