PAULO MOANA, Plaintiff,
PAGOFIE FIAIGOA, Defendant.
Court of American Samoa
Samoa law does not recognize a contract for the sale of real property unless it
is in writing, or has been partially performed.
 The writing
required by the statute of frauds may be a note or memorandum subscribed by the
party to be charged. It need not be a
 A note or
memorandum documenting the sale of real property should completely evidence the
contract that the parties made by giving all of the essential or material terms
of the contract.
 If the
parties have not reduced the essential terms of a land conveyance to writing
but have partially performed the contract, A.S.C.A. § 37.0211 authorizes the
court to enforce the oral contract.
 The court
has the explicit power to compel specific performance of a partially performed
 To justify
rescission, a breach of a contract must be so substantial and fundamental as to
defeat the contract’s purpose.
 Where the
parties do not agree on a specific time for performing obligations under a
contract a reasonable time will be implied.
 Where seller
failed, after two month’s time, to produce a written contract to document the
real estate sale and instead attempted to raise the agreed upon price, seller’s
breach was substantial enough to defeat the contract’s purpose and entitled
purchaser to rescind contract and recover, as compensatory damages, monies paid
towards purchase price and survey.
after making agreement to sell land, seller wrongfully failed to perform his
side of the bargain in an expeditious manner, and instead attempted to increase
purchase price, such misconduct was deliberate, reprehensible and entitled
purchaser to exemplary damages.
Before RICHMOND, Associate .Justice,
LOGAI, Chief Associate Judge, and SAGAPOLUTELE, Associate Judge.
Counsel: For Plaintiff, David P. Vargas
For Defendant, Pro Se
Moana (“Moana”) brought this action to recover damages against defendant
Pagofie Fiaigoa (“Pagafie”) for alleged breach of contract and fraud. Trial was held on April 6, 2001. Moana, his counsel, and Pagofie ware
present. The Court heard testimony and
has considered the evidence.
Facts and Contentions
Moana is a
citizen of Samoa but a long-term resident of American Samoa. Moana and Pagofie have known each other for a
number of years, and Pagofie was aware of Moana’s citizenship. Moana wanted to purchase land here for his
home, and he heard that Pagofie was selling land located in Tafuna near where
Moana’s in-laws had earlier purchased land from Pagofie.
Pagofie and Moana
met on February 14, 2000 and made an oral agreement under which Pagofie agreed
to sell to Moana, and Moana agreed to buy from Pagofie, a quarter acre parcel
of land in Tafuna for $40,000. Under the
terms of the agreement, Moana paid $5,000 as a down payrnent and was to pay
$500.00 by the end of each month, starting in March 2000, until the purchase
price was paid in full. Pagofie would then convey title to the land
by deed to Moana as individually owned land.
payment was paid by a
business check of S&T Produce Co., owned by Siufaga Fanene (“Fanene”), a
gift to Moana for lengthy service as an employee of Fanene’s business. The check was payable to Pagofie. The purpose
line on the check reads: “Down for Paulo Moana’s 1/4 Acre Land.” Pagofie was hesitant about taking a check of another’s business
for this purpose, but he knew Moana’s relationship with Fanene and did accept
Having been so
advised by Fanene, Moana told Pagofie that the agreement must be put in
writing, and Pagofie agreed to have the paperwork prepared by his
attorney. Before the end of February
2001, Moana called Pagofie several times to ask about the paperwork, and
Pagofie kept assuring him that it would be ready the next day. Finally, Moana went to see Pagofie, and
Pagofie told him not to worry because the paperwork would be forthcoming. Pagofie also gave Moana permission to build a
house on the land before payment of the purchase price was complete.
On March 27,
2000, Moana again called Pagofie, who once more assured him the paperwork would
be done. On March 28, 2000, relying on
Pagofie’s word, Moana paid Pagofie the first monthly installment of $500, plus
$400 for a survey of the land. This payment
of $900 was made by a cashier’s cheek payable to Pagofie. The bank’s receipt for the check bears the
notation: “From Paulo Moana $400 Land Survey $500 1st Payment.”
As the deadline
for the April installment approached without any paperwork produced, including
a survey of the land, Moana was increasingly concerned about Pagofie’s
intentions. Then, on April 26, 2000, Pagofie told Moana that
the purchase price of the land would be increased by $5,000 to $45,000. Moana refused to agree to this increase.
Believing that Pagofie never intended to carry out the agreement, Moana also
advised Pagofie that he no longer wanted to buy the land and demanded that
Pagofie refund the $5,900 he had paid to that point. Pagofie refused to refund
the monies paid, and this action was filed upon his continuing refusal to do
Based on his
understanding of the change in the law in l999, Pagofie said that he thought
Moana as an alien could not acquire title to land in American Samoa. He claimed, however, that he expected the title
would be put in the names of Moana’s children who were born here. Pagofie also acknowledged that the land was
his family’s communal land, not his individually owned land, but according to
him, he as the sa`o of the family did obtain his family’s consent to
convert the land to individually owned land and consummate the
transaction. Pagofie stated that he
explained both of these matters to Moana in February 2000. Moana denied that Pagofie made any such
apparently gave the funds paid by Moana to his mother and other family members
to spend. He insisted that he intended
to perform the agreement, and that he is still prepared to do so. He testified that the delay initially came
about because he was still looking for an attorney to prepare the paperwork and
a surveyor to survey the land. He
claimed that Moana breached the agreement by not paying the April and May
installments, and that Moana confirmed the breach in June 2000 when he informed
Pagofie that Fanene had promised Moana land for his home at no cost. However, Fanene actually made this offer to
Moana only about two or three months before the trial, well after the deal
testified that he did not return the funds paid by Moana because Moana did not
truthfully promise to pay the purchase price for the land and because he,
Pagofie, spent considerable time, including efforts to persuade his family to
sell the land, on the proposed transaction.
He argued that he will still honor the agreement, and because Moana broke
his promise to pay, he should, in any event, be permitted to retain at least
25% of the amount paid.
parties do not dispute the existence of an oral land conveyance agreement, the agreement must fulfill certain
statutory requirements to be valid.
Accordingly, we next discuss the applicability of these requirements to
the agreement at issue in this case.
Statute of Frauds
[1-2] American Samoa law
does not recognize a contract for the sale of real property unless it is in
writing, or has been partially performed. A.S.C.A. § 37.0211. The writing prescribed by statute, commonly
known as the statute of frauds, calls for “some note or memorandum . . .
subscribed by the party to be charged.” Id.
The writing need not, therefore, be a formal document.
 Nonetheless, the note
or memorandum should “completely evidence the contract which the parties made
by giving all of the essential or material terms of the contract.” 72 Am
Jur 2d Statute of Frauds § 339 (1974). In Cousbelis v. Alexander, the court
concluded that notations on a check were sufficient to satisfy the statute of
frauds. 54 N.E.2d 47, 48-49
(Mass. 1944). The parties to the
contract were the payee (seller) and drawer of the check (buyer); the seller
cashed the check, which on its face noted the land’s street location, the only
land owned by the seller, and the land’s square foot price. Id.; see also Kidd v. Kidd,
393 P.2d 403, 405 (Cal. 1964) (finding decedent’s signed receipt combined with
two checks totaling agreed upon purchase price satisfied the statute of
[4-5] On the other hand, if
the parties have not reduced the essential terms of a land conveyance to
writing but have partially performed the contract, A.S.C.A. § 37.0211
authorizes the Court to enforce the oral contract. We have recognized the Court’s explicit power
to compel specific performance of a partially performed contract. Manoa v. Jennings, 21 A.S.R.2d
23, 25 (Land & Titles Div. 1992); see also Blue Pac. Mgmt. Corp. v.
Paisano’s Corp., 23 A.S.R.2d 58, 62 (Trial Div. 1992).
notations on the down payment check and cashier’s check, coupled with Pagofie’s
endorsement on the down payment check, are sufficient evidence of this land
purchase agreement to validate the agreement for purposes of A.S.C.A. §
37.0211. However, we need not rule on
the sufficiency of the writings.
Instead, we find that based on the facts of this case, Moana’s payments
constitute part performance giving him entitlement to specific performance of the contract if he still desired
to purchase the land. Understandably,
however, he has elected to pursue breach of contract damages as his remedy in
the present situation.
Breach of Contract
 When a party to a
contract breaches the contract, the other party may be entitled to the
equitable remedy of rescission. See
Davis v. Cordell, 115 S.E.2d 649, 654 (S.C. 1950). “Breach of a contract, to justify rescission,
must be so substantial and fundamental as to defeat the purpose of the
contract.” Id. at 654.
[7-8] In this case, the
parties did not agree on a specific time for Pagofie to survey the land, and in
such cases, a reasonable time will be implied. Id. Clearly, Pagofie
breached the agreement when he failed over a two-month period, a more than
reasonable time, to produce a written contract to fully document the terms of
the land purchase agreement and to provide a survey of the quarter acre of land
involved, as Moana reasonably requested and expected. In fact, it was conceivable from Pagofie’s
delay, together with his attempt to coerce an additional $5,000 from Moana,
that Pagofie did not intend to carry out his end of the bargain. Pagofie’s breach was substantial enough to
defeat the purpose of the contract entitling Moana at that point to rescind the
contract and recover his damages.
Moana’s compensatory damages are $5,900, the amount of the downpayment
plus the amount of the first installment and survey cost payment.
 Fraud is suggested by
Pagofie’s foot-dragging and improper attempt to increase the purchase price
after the agreement was formulated.
However, we are not persuaded that Pagofie harbored actual intent to
defraud when the contract was entered.
He was, at least, eager to take advantage of an opportunity to have in
hand a substantial sum of money, even though he was not prepared to perform his
side of the bargain in any reasonably expeditious manner. It appears that later on he thought that
Moana had access to and could be readily manipulated to pay additional
funds. His misconduct in handling this
transaction was deliberate and certainly reprehensible, and warrants assessment
of $1,500 as exemplary damages.
pay Moana $5,900 in compensatory damages for Pagofie’s breach of the land
purchase contract between Pagofie and Moana and $1,500 as exemplary damages, a
total of $7,400, plus Moana’s costs incurred in this action. The total amount of the judgment, including
costs, shall bear interest at the rate of 6% per annum until the judgment is
paid in full.
It is so ordered.
 The change in the law is not free of ambiguity. P.L. No. 26-6 (1999) modified definitions in
A.S.C.A. § 37.0201 affecting land ownership to read as follows:
(c) “Native” means a full-blooded Samoan person of Tutuila, Manua,
Aunu’u, or Swains Island.
(d) “Nonnative” means any person who is not a native
under subsection (c) above.
However, because the central issue in this
action concerns concerns breach of contract rather than real property
ownership, we need not reach the question of the proper interpretation of the