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Great Hill Fill v. Shapleigh
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MAINE SUPREME JUDICIAL COURT						Reporter of Decisions
Decision: 1997 ME 75
Docket: Yor-96-16
Submitted on Briefs  October 24, 1996	
Decided  April 15, 1997


GREAT HILL FILL & GRAVEL, INC. v. NANCY E. SHAPLEIGH, Personal Representative of the Estate of Merritt J. Shapleigh, Jr.

	[¶1]  Great Hill Fill & Gravel, Inc., appeals from the judgment entered
in the Superior Court (York County, Calkins, J.) in favor of Nancy Shapleigh,
personal representative of the estate of Merritt J. Shapleigh, Jr., on Great
Hill's action seeking damages and specific performance for a breach of an
oral contract.  Finding no error, we affirm the judgment.  
	[¶2]  The trial court found, based on competent evidence, the following
course of dealings between the parties.  In 1974 Merritt Shapleigh, now
deceased, entered into an oral agreement with Joseph Furbush relating to
property Furbush owned in Eliot.  Furbush agreed that Shapleigh could
remove gravel and fill, and Shapleigh promised to pay Furbush twenty cents
for each cubic yard removed.  In addition, Shapleigh promised to return the
land to the condition of a "nice, easy slope" when he was finished
excavating.  Neither party contemplated that the contract would be
performed within one year.  
	[¶3]  The parties operated under the agreement until 1987 when the
Board of Environmental Protection (BEP) began proceedings against
Shapleigh and Furbush because the excavation site did not comply with
environmental laws.  In 1989 Furbush sold his land to Joseph Frost.  Frost
simultaneously entered into an agreement with Great Hill giving it the right
to excavate the Furbush-Frost parcel.  Furbush assigned to Great Hill all of
his claims and causes of action against Shapleigh arising from the 1974 oral
agreement.  Great Hill brought the present action against Shapleigh's estate,
seeking damages for the alleged removal of gravel and fill without payment
and seeking either the costs of reclaiming the land or specific performance
of Shapleigh's promise.
	[¶4]  The court concluded that enforcement of the 1974 contract
between Shapleigh and Furbush was barred by the Statute of Frauds, which
prevents the maintenance of actions "[u]pon any agreement that is not to be
performed within one year from the making thereof."{1}  This is the only
issue that we need now address.  
	[¶5]  There is no doubt that the court properly ruled that the oral
promise sought to be enforced is within the Statute of Frauds, 33 M.R.S.A.
§ 51(5) (1988).  Although it may be conceivable that the contract could have
been performed within one year, the court correctly looked to the
circumstances in this case to conclude that the parties plainly manifested an
intent that the contract was not to be performed within one year. 
Longscope v. Lucerne in Maine Community Ass'n, 127 Me. 282, 284 143 A.
64, 65 (1928).  
	[¶6]  Great Hill argues that Furbush's performance of the contract
removed it from the Statute of Frauds.  It invoked a doctrine based on
principles of equitable estoppel recently applied in Landry v. Landry, 641
A.2d 182 (Me. 1994):  "After having induced or knowingly permitted
another to perform in part an agreement, on the faith of its full performance
by both parties and for which he could not well be compensated except by
specific performance, the other shall not insist that the agreement is void
[for lack of a writing]."  Id. at 183 (citing Bell v. Bell, 151 Me. 207, 211, 116
A.2d 921, 923 (1955) (quoting Woodbury v. Gardner, 77 Me. 68, 70 (1885)). 
The doctrine's rationale was explained in Busque v. Marcou, 147 Me. 289,
295, 82 A.2d 873, 876 (1952): "Relief because of the partial or full
performance of the contract is usually granted in equity on the ground that
the party who has so performed has been induced by the other party to
irretrievably change his position and that to refuse relief according to the
terms of the contract would otherwise amount to a fraud upon his rights."  
	[¶7]  Great Hill seeks relief that is within the scope of the court's
equitable powers.  Both the grant of equitable relief and the withholding of
such a relief are addressed to the sound discretion of the court.  See
Dunham v. Hogan, 143 Me. 142, 56 A.2d 550 (1948).  As we stated in Fortin
v. Willinski, 142 Me. 372, 379, 53 A.2d 266, 269 (1947), "A decree of
specific performance can never be claimed as a matter of right."  In this
case, Shapleigh paid Furbush market value for the gravel and fill he removed
during the course of their dealings.  Furbush was not induced to take
discounted payments in reliance on the promise of reclamation by
Shapleigh.  The court decided that the application of the statute of frauds
would not amount to a fraud on the rights of Furbush.  In these
circumstances, we cannot say that the court was compelled to conclude
	[¶8]  Finally, we find no error in the court's evidentiary rulings that are
challenged on appeal.  
	The entry is:
				Judgment affirmed. 

Attorney for plaintiff: Michael E. Chubrich, Esq. Eldredge, Cubrich & Harrigan, P. A. P O Box 1591 Portsmouth, N.H. 03802-1591 Attorneys for Defendant: William C. Knowles, Esq. Carl E. Kandutsch, Esq. Verrill & Dana P O Box 586 Portland, ME 04112-0586
FOOTNOTES******************************** {1}. 33 M.R.S.A. § 51(5) 1988).