March 04, 2010 – Warren and Betty Beaver v. Michael and Karen Brumlow, No. 28,839

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: ______________
Filing Date: March 4, 2010
NO. 28,839
WARREN AND BETTY BEAVER,
Plaintiffs-Appellants,
v.
MICHAEL AND KAREN BRUMLOW,
Defendants-Appellees.
APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY
Karen L. Parsons, District Judge
Richard A. Hawthorne, P.C.
Richard A. Hawthorne
Ruidoso, NM
Gibson & Leonard, P.A.
JulieAnne Leonard
Ruidoso, NM
for Appellants
Attorneys at Law, P.C.
David M. Stevens
Ruidoso, NM
for Appellees

OPINION
VIGIL, Judge.
{1} 	This case is about a verbal agreement made by Warren and Betty Beaver
(Sellers) to sell land for a home site to Michael and Karen Brumlow (Buyers). Sellers
reneged on the agreement after Mr. Brumlow left Sellers’ employment and started
working for a competitor. The trial court ordered specific performance of the oral
agreement, and Sellers appeal. Sellers acknowledge that the evidence was sufficient
for the trial court to find that they made the agreement with Buyers. Nevertheless,
Sellers contend that specific enforcement of the verbal agreement is barred pursuant
to the statute of frauds. We disagree and affirm.
BACKGROUND
{2} 	Sellers do not challenge the findings of fact made by the trial court. Therefore,
the trial court findings of fact are undisputed and are binding on appeal.
{3} 	Buyer Michael Brumlow worked for Sellers in their race horse transportation
business for approximately ten years, beginning in 1994, and ending in 2004. 	In
October 2000, Sellers purchased twenty-four acres of property in the Village of
Ruidoso Downs, and in approximately June or July of 2001, Mr. Brumlow asked
Seller Warren Beaver if he would sell some of the land to put a home on. Mr. Beaver

2
agreed, and the parties walked the specific boundaries of the property that Sellers
would sell to Buyers.
{4} 	Sellers allowed Buyers to rely on their representations to Buyers that Sellers
would sell Buyers the subject property. Buyers went into possession of the land with
Sellers’ consent. 	In reliance on Sellers’ agreement to sell, Buyer Karen Brumlow
cashed in her IRA and 401-K retirement plans, at a substantial penalty, to pay for the
home and improvements. Buyers purchased a double-wide home and moved it onto
the property. Mr. Beaver signed an application with the Village of Ruidoso Downs
for placement of the home on the property he agreed to sell to Buyers. In reliance on
the agreement, Buyers also skirted the mobile home, poured concrete footers and a
concrete foundation for the home, built a deck and two sets of stairs to access the
home, had electricity and a water supply run to the property, had a septic system
installed, had a propane system installed, brought a Tuff Shed for storage onto the
property, and landscaped the property. Mr. Beaver signed the application/approval
required by the Village of Ruidoso Downs for the construction of the septic system.
In reliance on the agreement, Buyers spent approximately $85,000.
{5} 	Sellers sought legal advice as to the manner in which to sell the property to
Buyers, and the parties discussed with Sellers’ attorney the requirement of a survey,
and either a real estate contract or a note and mortgage. 	A fair inference from the
record is that formal documents were not prepared and executed because Sellers

3
discovered that their property was encumbered with a mortgage containing a due on
sale clause. Throughout their time on the land, Buyers repeatedly requested that their
contract be formalized, and Sellers responded, “We will work it out.”
{6} 	A date certain was never determined for the sale of the property or transfer of
title to the property, nor was a price actually determined. However, Mr. Brumlow
assumed 	he 	would 	pay 	whatever 	the 	market 	would 	bear 	in 	that 	particular
neighborhood. He testified he thought the price would be “whatever it was worth.”
{7} 	Sellers drove by Buyers’ home location daily during the time Buyers were
making improvements to the land and setting up the home without ever expressing an
intent not to sell the subject property to Buyers. Sellers never attempted to interrupt
Buyers’ quiet possession of the property during the years of possession. Sellers
allowed Buyers to rely on their representations to Buyers that Sellers would sell
Buyers the subject property for years without notifying Buyers they intended to renege
on their promise.
{8} 	In March 2004, Mr. Brumlow gave Mr. Beaver a two-week notice of
termination of his employment with Sellers, intending to go to work for a competitor
of Sellers in the race horse transportation business. 	The relationship between the
parties rapidly deteriorated, and Sellers changed their mind and decided not to sell the
agreed upon tract of land to Buyers because of hurt or anger. Sellers then attempted
to restructure the agreement as a “lease” as opposed to a sale, and then attempted to

4
terminate the “lease” and evict Buyers. Sellers prepared and required Buyers to sign
an “Agreement.” The “Agreement” required Buyers to pay Sellers $400 per month,
and Buyers complied, believing it was payment for the land. 	When Buyers began
writing “Land Payment” on the checks, Sellers stopped cashing the checks and alleged
that the “Agreement” was for rental, although the “Agreement” did not contain the
words “Rent,” “Rental,” “Lease,” or “Leasehold.” 	Buyers attempted to amicably
resolve the dispute by offering to pay cash in the amount of the fair market value for
the property and to have the property surveyed at their expense. Sellers refused.
{9} 	Sellers then filed a suit for ejectment against Buyers, seeking to remove them
from the property by alleging that Buyers were in violation of a rental agreement.
Buyers denied the existence of a rental agreement and affirmatively alleged that their
occupancy was pursuant to an agreement to purchase the property. Buyers also filed
counterclaims which included claims for breach of contract, fraud, and prima facie
tort. Sellers pleaded the statute of frauds as a defense.
{10} 	The trial court concluded that Sellers entered into a contract with Buyers to sell
them a specific portion of their land and that Sellers reneged on their agreement to sell
the property to Buyers. The trial court further determined that Sellers changed their
mind three years after making the contract, chose not to honor it, and attempted to
unilaterally restructure the contract into a lease, which was never intended. 	In
committing these acts, the trial court concluded, Sellers committed a prima facie tort,

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which they knew would harm Buyers. Addressing the statute of frauds defense, the
trial court concluded that while the parties had no written agreement, the verbal
agreement was proven by clear, cogent, and convincing evidence and that part
performance of the contract by both Buyers and Sellers was sufficient to remove the
contract from the statute of frauds. Furthermore, the trial court concluded, requiring
a cash payment of the fair market value, as determined by a professional appraiser,
was a proper equitable remedy.
{11} 	The trial court allowed Buyers a choice of remedy: 	money damages for the
prima facie tort or specific performance of the contract. 	Buyers chose specific
performance. 	The property was appraised at a value of $10,000 by a professional
appraiser, and a survey of the property to be sold was prepared. The final judgment
directs that Buyers tender to Sellers the amount of $10,000 by depositing that amount
into the trust account of Buyers’ attorney within thirty days from the entry of the
judgment, and that Sellers prepare and execute a good and sufficient warranty deed
to Buyers for the property as described in the testimony of Mr. Brumlow and as
depicted on the survey of the property. Upon receipt of the warranty deed executed
by Sellers, payment of the $10,000 is to be made to Sellers. 	All other claims and
counterclaims were dismissed with prejudice. Sellers appeal.
{12} 	Sellers contend that specific enforcement of the oral contract is barred pursuant
to the statute of frauds because: (1) Buyers’ part performance was not “unequivocally

6
referable” to the verbal agreement; and (2) the verbal agreement was not certain as to
the purchase price and time of performance. 	Sellers also argue that specific
performance was improper because Buyers had an adequate remedy at law in
damages. For the following reasons, we disagree and affirm.
STANDARD OF REVIEW
{13} 	Applicability of the statute of frauds raises a question of law, which we review
de novo. Ellen Equip. Corp. v. C.V. Consultants & Assocs., 2008-NMCA-057, ¶ 16,
144 N.M. 55, 183 P.3d 940. 	We review the trial court judgment granting specific
performance for an abuse of discretion. See Three Rivers Land Co. v. Maddoux, 98
N.M. 690, 693-94, 652 P.2d 240, 243-44 (1982) (stating that we review the grant of
an equitable remedy for an abuse of discretion), overruled on other grounds by
Universal Life Church v. Coxon, 105 N.M. 57, 58, 728 P.2d 467, 469 (1986). “An
abuse of discretion will be found when the trial court’s decision is contrary to logic
and reason.” Three Rivers Land Co., 98 N.M. at 694, 652 P.2d at 244.
THE STATUTE OF FRAUDS
{14} 	The origin of the statute of frauds in the United States was the English statute
entitled, “An Act for the Prevention of Frauds and Perjuries,” 29 Charles 2, ch. 3
(1677). See 72 Am. Jur. 2d Statute of Frauds § 1 (1974). “This statute was originally
enacted to prevent fraud and perjury in the enforcement of obligations depending for
their evidence on the memory of witnesses by requiring certain enumerated contracts

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and transactions to be evidenced by a writing signed by the parties.” 	Weber v. De
Cecco, 61 A.2d 651, 653 (N.J. Super. Ct. Ch. Div. 1948). 	When the statute was
enacted in England, it was deemed necessary because the jury system was unreliable,
rules of evidence were few, and the complaining party was disqualified as a witness
so he could neither testify on direct examination nor be cross-examined. 	See
McIntosh v. Murphy, 469 P.2d 177, 179 (Haw. 1970) (citing Summers, The Doctrine
of Estoppel and The Statute of Frauds, 79 U. Pa. L. Rev. 440, 441 (1931)).
{15} 	In 1876, our Territorial Legislature enacted Section 1823, C.L. 1884, which
directs, “‘in all courts of this territory, the common law, as recognized in the United
States of America, shall be the rule of practice and decision.’” Browning v. Browning,
3 N.M. (Gild.) 659, 671, 9 P. 677, 682 (1886) (quoting Section 1823). Under Section
1823, the Legislature intended “to adopt the common law, or lex non

8
scripta, and such British statutes of a general nature not local to that kingdom, nor in
conflict with the [C]onstitution or laws of the United States, nor of this territory,
which are applicable to our condition and circumstances, and which were in force at
the time of our separation from the mother country.” Browning, 3 N.M. at 675, 9 P.
at 684. In Childers v. Talbott, 4 N.M. (Gild.) 336, 339, 16 P. 275, 276 (1888), our
Territorial Supreme Court held that the English statute of frauds was adopted in New
Mexico. Thus, “[t]he statute of frauds is with us as a part of the common law.” Ades
v. Supreme Lodge Order of Ahepa, 51 N.M. 164, 171, 181 P.2d 161, 165 (1947).
While the underlying reasons justifying adoption of the statute of frauds no longer
exist, retention of the statute has been justified for three primary reasons: the statute
still serves an evidentiary function, and thereby lessens the danger of perjured
testimony (the original reason for the statute); the requirement of a writing causes the
parties to reflect on the importance of the agreement; and the writing requirement
makes it easier to distinguish agreements which are enforceable from those which are
not. See McIntosh, 469 P.2d at 179.
{16} 	This case involves the fourth section of the English statute of frauds, which in
pertinent part states,
No action shall be brought upon any contract or sale of lands, tenements,
or hereditaments, or any interest in or concerning them . . . unless the
agreement 	upon 	which 	such 	action 	shall 	be 	brought, 	or 	some
memorandum or note thereof, shall be in writing, signed by the party to
be charged therewith, or by some person thereunto by him lawfully

9
authorized.
Childers, 4 N.M. at 340, 16 P. at 276 (quoting Section 4 of the statute of frauds).
PART PERFORMANCE
{17} 	Notwithstanding its language, judicial construction of the statute of frauds has
resulted in limiting its application in order to overcome the harshness and injustice of
a literal and mechanical application of its terms. McIntosh, 469 P.2d at 180. One well
settled exception, recognized in New Mexico, is the doctrine of part performance.
Alvarez v. Alvarez, 72 N.M. 336, 341, 383 P.2d 581, 584 (1963).
{18} 	“Where an oral contract not enforceable under the statute of frauds has been
performed to such extent as to make it inequitable to deny effect thereto, equity may
consider the contract as removed from operation of the statute of frauds and decree
specific performance.” Id. In this case, the trial court concluded:
[T]he evidence is clear, cogent and convincing so as to remove the case
from the application of the [s]tatute of [f]rauds and that there is
significant partial performance by both parties, [Buyers] in expending so
much time, energy and money developing the parcel of property and
[Sellers] in applying for permission to have the personal property placed
on the land, seeking advice of counsel as to the manner in which to sell
the property and allowing [Buyers] to rely on their representations and
to reside on the property for years. The [c]ourt finds that applying the
[s]tatute of [f]rauds would be unfair and inequitable.
{19} 	Sellers do not contend that proof of the oral contract is lacking; in fact, they
concede that the evidence is sufficient. Moreover, Sellers do not argue that the partial
performance of Buyers was insufficient to overcome the statute of frauds or that their

10
own partial performance was insufficient. Sellers’ sole argument is that the character
of Buyers’ performance was not sufficiently indicative of an oral agreement to sell
land to qualify as partial performance. See Burns v. McCormick, 135 N.E. 273, 273
(N.Y. 1922) (“Not every act of part performance will move a court of equity, though
legal remedies are inadequate, to enforce an oral agreement affecting rights in land.
There must be performance ‘unequivocally referable’ to the agreement, performance
which alone and without the aid of words of promise is unintelligible or at least
extraordinary unless as an incident of ownership, assured, if not existing.”); Woolley
v. Stewart, 118 N.E. 847, 848 (N.Y. 1918) (“An act which admits of explanation
without reference to the alleged oral contract or a contract of the same general nature
and purpose is not, in general, admitted to constitute a part performance.”), quoted
with approval in Alvarez, 72 N.M. at 342, 383 P.2d at 585.
A court of equity [therefore] requires that a part performance relied on
to take the case out of the statute [of frauds] should be of a character, not
only consistent with the reasonable presumption that what was done was
done on the faith of such a contract, but also that it would be
unreasonable to presume that it was done on any other theory.
Alvarez, 72 N.M. at 342, 383 P.2d at 585 (internal quotation marks and citation
omitted).
{20} 	Sellers argue that Buyers’ acts are not “unequivocally referable” to their
agreement because Buyers’ actions could also be consistent with those taken by a
person who needs a place to live and who is given an opportunity to reside on another

11
person’s property. 	Sellers argue that if there is an alternative explanation for the
actions taken in reliance of the oral contract, those actions are not “unequivocally
referable” to the contract, and application of the part performance doctrine is
improper. We disagree.
{21} 	In Nashan v. Nashan, 119 N.M. 625, 630-31, 894 P.2d 402, 407-08 (Ct. App.
1995), we discussed the interrelationship of the factors that may be considered in
determining whether a contract to convey land has been proven and whether it would
be inequitable to enforce the contract. We said:
Whatever the purpose of each test, however, the main questions are the
same for a court faced with a case such as this one—was there actually
an oral agreement such as that alleged by the plaintiff, and if so would
it be inequitable to deny enforcement to the agreement? 	The factors
should not be applied mechanically to determine whether the plaintiff’s
performance has met a particular test. Instead, the case must be viewed
as a whole to determine whether specific performance of the agreement
is required.
Id. at 631, 894 P.2d at 408. Thus, we reject the suggestion that the “unequivocally
referable” concept means that outside of the contract, there can be no other plausible
explanation for the part performance. 	In fact, we described the “unequivocally
referable” concept in plain language as “meaning that an outsider, knowing all of the
circumstances of a case except for the claimed oral agreement, would naturally and
reasonably conclude that a contract existed regarding the land, of the same general
nature as that alleged by the claimant.” 	Id. at 630, 894 P.2d at 407 (citing Smith v.

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Smith, 466 So. 2d 922, 925 (Ala. 1985)). We did not say that the performance must
relate exclusively to the oral contract; rather, the performance must lead an outsider
to “naturally and reasonably” conclude that the contract alleged actually exists. Two
key specific factors, approved by this Court and many other courts, in coming to such
a conclusion, are taking possession of the property, and making valuable, permanent,
and substantial improvements to the property. 	Id. at 630-31, 894 P.2d at 407-08.
Where these two factors coincide, specific performance usually results. Id.
{22} 	In this case, Buyers went into possession of the specific land Sellers agreed to
convey with Sellers’ consent. In reliance on the agreement, Buyers cashed IRA and
401-K retirement plans at a substantial penalty, purchased a double-wide mobile
home, and with Sellers’ consent, moved it onto the property. 	Buyers also erected
valuable temporary and permanent improvements on the land, and landscaped the
property with Sellers’ consent. 	In reliance on the agreement, Buyers spent
approximately $85,000 in purchasing the home and making improvements. We hold
Buyers’ actions were sufficient part performance in reliance on the oral agreement to
take the agreement outside of the statute of frauds.
SUFFICIENCY OF THE VERBAL AGREEMENT
{23} 	The trial court concluded:
[T]he terms of the contract were that [Sellers] would sell to [Buyers] the
piece of property included in the demarcation of the landmarks as
testified to by [Mr. Brumlow]. 	While the purchase price was never

13
agreed upon, the [c]ourt finds that [Buyers] should pay to [Sellers] the
fair market value of the property as determined by an objective appraiser,
in one lump sum, within sixty days of the [c]ourt’s decision. Imposing
fair market value and requiring a cash payment is the equitable remedy.
Sellers assert that by ruling that the purchase price would be established by an
appraisal and that the terms of the payment would be in cash payable within thirty
days, the trial court “formulated an agreement between the parties that never existed”
and it “enforced terms and conditions on the parties that they had not had a meeting
of the minds upon” which is “exactly” what the court in Bellamah v. Schmider, 68
N.M. 247, 360 P.2d 656 (1961) “said the courts should not do.”
{24} 	Bellamah is inapplicable to the facts of this case. 	In Bellamah, the parties
entered into a written contract for the plaintiff to purchase approximately seventy-six
acres of land from the defendants for subdivision purposes for $190,000, with an
immediate payment of $19,000 upon execution of the contract, and the balance at
$10,000 per year. Id. at 249, 360 P.2d at 657. Upon payment of the initial $19,000,
the plaintiff was to receive a deed to 10% of the land, to be selected by him. Id.

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Before the contract was signed, the plaintiff learned that the defendants did not own
two tracts of land within the seventy-six acres, and he tendered the owners of these
tracts $17,034, conditioned upon the defendants agreeing to an abatement of the initial
amount under the written contract. Id. After the contract was executed, the plaintiff
tendered to the defendants $1,966 in full satisfaction of the initial payment. Id. When
the defendants refused the tender, the plaintiff filed suit to enforce, by specific
performance, the written contract, with an abatement of the initial $17,034. Id. at 249-
50, 360 P.2d at 657. The Court said:
[T]he rule is that with certain exceptions, not present under the facts
here, a vendee who at the time of the contract knew of vendor’s failure
of title to a portion of the land is not entitled, in an action for specific
performance, to compensation or abatement of the purchase price.
Particularly is the rule denying vendee specific performance and
abatement applicable where the vendee not only had actual knowledge
of vendor’s lack of title to part of the land at the time of the contract but,
likewise, had actual knowledge that vendor would not acquire title to the
missing part so as to be able to convey it to vendee.
Id. at 250-51, 360 P.2d at 658. The Court deemed it “especially significant” that no
provision was made in the contract for any reduction in the purchase price if the
defendants were unable to convey all of the described tract even though all parties
knew at the time the contract was signed that the defendants did not own the two
strips. 	Id. at 251, 360 P.2d at 658. 	In that context, the Court said, “In suits for
specific performance courts will not make a new contract for the parties which they
did not make for themselves nor enforce conditions upon which they had obviously

15
not had a meeting of the minds.” Id.
{25} 	This case is more analogous to Colcott v. Sutherland, 36 N.M. 370, 16 P.2d 399
(1932), in which our Supreme Court suggested that a claim for specific performance
of a contract involving land will not fail for failure to specify a price where the
contract is otherwise complete, and there has been part performance of the contract
by a transfer of possession. Id. at 374-75, 16 P.2d at 401-02. In Colcott, the buyer
alleged that the owner agreed to sell the buyer two acres from a parcel he owned for
the sum of $150 per acre, provided that the buyer gave the seller an option to buy the
land back if the buyer decided to move a gin he was planning on constructing on the
land in the future. 	Id. at 371-72, 16 P.2d at 400. In reliance on the agreement, the
buyer alleged he went into possession of the land and constructed the gin at a cost of
$25,000. Id. at 372, 16 P.2d at 400. However, the parties never agreed on a price at
which the seller could repurchase the property, nor did they agree on a means for
determining the repurchase price. Id. at 374, 16 P.2d at 401. On this basis, the seller
asserted that the allegations failed to state a claim for specific performance because
there was no contract. Id. at 373-74, 16 P.2d at 400-01. Our Supreme Court said:
The parties having thus agreed, what is the effect of the omission
to stipulate the price for a repurchase? 	[The seller] contends that it
results in incompleteness and uncertainty fatal to the remedy of specific
performance. 	[The 	buyer] 	says 	there 	is 	no 	incompleteness 	or
uncertainty, since the law’s implication binds the parties to a reasonable
price, and equity has means to determine it. This may be entirely sound.

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Id. at 374-75, 16 P.2d at 401 (emphasis added) (citing John Norton Pomeroy & John
C. Mann, Specific Performance of Contracts § 148, at 380-82 (3d ed. 1926)).
However, the suit was not for specific performance of the seller’s option to
repurchase; it was to enforce the contract to sell to the buyer. Accordingly, the Court
did not decide whether an action would lie for specific performance of the option
itself. 	Id. 	While our Supreme Court did not decide the issue, its statement that the
buyer’s position “may be entirely sound” and citation to Pomeroy & Mann is highly
suggestive of its answer. In its entirety, the Pomeroy reference states:
In all contracts of sale, assignment, and the like, the price is, of course,
a material term. It must either be fixed by the agreement itself, or means
must be therein provided for ascertaining it with certainty. 	In the
absence of such provision, either stating it or furnishing a mode for
fixing it, the agreement would be plainly incomplete, and could not be
enforced; and if the contract is written, this term must appear in the
memorandum or written instrument. This rule, of course, does not apply
to gifts, which, under certain circumstances of parol performance by the
donee, will, as has already been shown, be enforced by courts of equity.
There is an apparent but not real exception to this general proposition.
A valid contract of sale may be made without any stipulation as to the
price, the law in such case implying that the price is the reasonable value
of the thing which is the subject-matter of the agreement. 	This is,
however, no exception to, but rather a special instance of, the foregoing

17
rule; because such a contract does, in fact, by operation of the law, furnish a means of
exactly ascertaining and fixing the price.
Pomeroy & Mann, supra, § 148, at 380-82 (footnotes omitted).
{26} 	O’Keefe v. Aptos Land & Water Co., 286 P.2d 417 (Cal. Dist. Ct. App. 1955),
applied the Pomeroy section quoted above in a factual scenario substantially identical
to the facts before us in this case. The buyer wanted to purchase a parcel of land from
the seller, a corporation that was indebted to the buyer, as reflected in its stockholder
account. Id. at 419-20. The only other stockholder of the corporation was the buyer’s
close and intimate business associate of many years. Id. at 419, 423. It was agreed
that the corporation would sell the buyer the parcel of land and charge the buyer’s
stockholder account with the agreed value of the property. Id. at 420. In reliance on
the agreement, the buyer went into possession, built a home, made extensive and
permanent improvements to the property, and took up his residence there. 	Id. 	The
buyer then said he wanted to acquire two additional adjoining parcels under the same
condition, and the parties agreed. 	Id. 	At all times, the buyer acted with the
knowledge and acquiescence of his business partner and friend, who visited the
property frequently, and knew of the buyer’s reliance on the agreement, but failed to
make the debit entry onto the seller’s corporate books, although he handled the
finances of the corporation. 	Id. at 423. 	The buyer ultimately made permanent
improvements to the property at a cost of not less than $35,000. Id. at 423. When the

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buyer died, the seller asserted the buyer did not own the property because he took
possession under an oral contract but never paid any consideration for the land. Id.
at 419. Judgment quieting title in favor of the buyer’s estate was entered following
a bench trial. Id.
{27} 	The California District Court of Appeal affirmed. 	The court first observed,
“The trial court may have believed that although the parties intended that [the buyer]
pay for the property, no definite price had been determined, perhaps had not even been
discussed. In such a case, to prevent an inequitable result, the court could imply a
reasonable price.” 	Id. at 422. Directly addressing the seller’s argument that in the
absence of a stipulated price, the contract was too uncertain to be enforced, the court
said, “The mere fact that an agreement is silent as to price does not necessarily make
it unenforceable,” id. at 423, and quoted from Pomeroy & Mann, supra, § 148 to
support its statement. The court then held that in that circumstance, the law would
imply that the contractual price is deemed to be the reasonable value of the land.
O’Keefe, 286 P.2d at 423-24.
{28} 	We adopt the holding of O’Keefe in this case. Buyers proved to the satisfaction
of the trial court by clear, cogent, and convincing evidence that Sellers entered into
a contract to sell specific land to Buyers, as reflected in its conclusions of law quoted
above. In addition, there was significant specific part performance by both Buyers
and Sellers in reliance on the contract they made. In particular, Buyers cashed their

19
retirement plans, went into possession of the property, moved their home onto the
property, and made significant improvements to the land at a total cost of
approximately $85,000, all with the knowledge and consent of Sellers for several
years. Buyers assumed they would have to pay whatever the property was worth, and
Sellers consulted an attorney to draft the sale documents. When Buyers repeatedly
asked that the contract be formalized, Sellers’ response was, “We will work it out.”
Thus, it is through no fault of Buyers that formal contract documents were not written
with a set price and terms. Under these circumstances, it was within the equitable
jurisdiction of the trial court to set the price at the fair market value as determined by
an objective appraiser. We take particular note that Sellers do not dispute on appeal
the fairness of the price established by the trial court.
{29} 	Sellers would have us invalidate what was unquestionably a valid contract
based on a mechanical application of contract law. We decline to do so. See Herrera
v. Herrera, 1999-NMCA-034, ¶ 13, 126 N.M. 705, 974 P.2d 675 (noting that the
purpose of the statute of frauds is to prevent fraud and perjury, not to prevent the
performance or enforcement of oral contracts that have been made or to create a
loophole of escape for a person who seeks to repudiate a contract he admits was
made). 	Sellers do not seem to acknowledge that this is a case under the equitable
jurisdiction of the trial court. “In the general juristic sense, equity means the power
to meet the moral standards of justice in a particular case by a tribunal having

20
discretion to mitigate the rigidity of the application of strict rules of law so as to adapt
the relief to the circumstances of the particular case.” 	Henry L. McClintock,
Principles of Equity § 1, at 1 (2d ed. 1948). 	We hold that there was no error
committed by the trial court by decreeing specific performance of the contract for
Sellers to sell, and Buyers to buy, the subject property for its fair market value.
{30} 	Sellers also assert that the trial court erred in decreeing that the sale would close
within sixty days of its decision because that term was absent from the agreement.
Largely for the reasons already expressed, we reject this argument as well. Moreover,
when an agreement does not specify a time for performance, it is implied that it is to
be performed within a reasonable time, and what is a reasonable time is a question of
fact. See Smith v. Galio, 95 N.M. 4, 7, 617 P.2d 1325, 1328 (Ct. App. 1980).
ADEQUACY OF REMEDY AT LAW
{31} 	Sellers argue that the remedy of specific performance was improper because
Buyers have an adequate remedy at law for damages. We disagree.
{32} 	Sellers point out that the trial court dismissed Buyers’ claim for fraud. Sellers
then assert:
It [sic] order for equity to prevent the application of the statute of
frauds, the party seeking specific performance must perform his part of
the alleged oral agreement to such an extent that it would constitute a
fraud on him to permit the other party to use the defense of the statute of
frauds, and where the contract is one for the conveyance of real property,
the part performance must be of such exceptional or extraordinary nature
that they are incapable of compensation measured by definite monetary

21
standards.
In support of this assertion, Sellers refer us to Hubbard v. Mathis, 72 N.M. 270, 383
P.2d 240 (1963). This case is not applicable. In Hubbard,
[t]he only question on the appeal is whether the services which appellant
rendered with respect to the investment properties were of a type which
would remove this provision of the alleged contract [of services in
exchange for a ten percent interest of the value of the investment
properties] from the bar of the statute of frauds. Unless these services
are of such a nature as to render them incapable of compensation by any
pecuniary standard, or if they cannot be compensated for on the basis of
quantum meruit, they are not of the peculiar character requisite to a
removal of this contract from the statute of frauds.
Id. at 272-73, 383 P.2d at 242. The Court said:
It is true that equity will regard the bar of the statute of frauds as
removed when one party has so far performed his part of its terms that
it would amount to a fraud on him to permit the other party to use the
defense of the statute of frauds. 	But where the contract is one for
conveyance of real estate and the performance relied upon to remove it
from the statute of frauds consists of services rendered, the services must
be of such exceptional or extraordinary nature that they are incapable of
compensation measured by definite monetary standards.
Id. at 273, 383 P.2d at 242 (citations omitted). The case before us does not involve
rendering services in exchange for real property, and Hubbard does not even suggest
that specific performance as a remedy is limited to circumstances of actual fraud.
{33} 	Sellers also argue that Buyers’ part performance “could have been very easily
compensated for with money.” However, Buyers did not seek damages for their part
performance; they relied on their own part performance, as well as the part

22
performance of Sellers to compel specific performance of the contract to sell them
land. 	Moreover, it is well settled that land is assumed to have special value not
replaceable in money. 3 Dan B. Dobbs, Dobbs Law of Remedies § 12.11(3), at 299
(2d ed. 1993).
When real property is the subject matter of the agreement, the legal
remedy of damages may be assumed to be inadequate, since each parcel
of land is unique. 	Thus, even though the availability of an equitable
remedy 	such 	as 	specific 	performance 	generally 	depends 	on 	the
inadequacy of any remedy at law, where land is the subject matter of the
agreement, jurisdiction of equity to grant specific performance does not
depend upon the existence of special facts showing that legal remedy is
inadequate.
81A C.J.S. Specific Performance § 56, at 229-30 (2004) (footnotes omitted); see also
State ex rel. State Highway Comn’n v. Clark, 79 N.M. 29, 31, 439 P.2d 547, 549
(1968) (“[M]oney damages is not an adequate remedy in actions for specific
performance of land sales contract.”).
{34} 	For the foregoing reasons, we reject Sellers’ arguments under this point.

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CONCLUSION
{35} 	The judgment of the trial court is affirmed.
{36} 	IT IS SO ORDERED.
________________________________
MICHAEL E. VIGIL, Judge
WE CONCUR:
_________________________________
JAMES J. WECHSLER, Judge
_________________________________
ROBERT E. ROBLES, Judge