ADES v. SUPREME LODGE ORDER OF AHEPA

• Decision Date: 22 May 1947
• Docket Number: No. 5013,5013
• Citation: 181 P.2d 161,51 N.M. 164
• Parties: ADES et al. v. SUPREME LODGE ORDER OF AHEPA et al.
• Court: New Mexico Supreme Court

51 N.M. 164

181 P.2d 161

ADES et al.

v.SUPREME LODGE ORDER OF AHEPA et al.

No. 5013.

Supreme Court of New Mexico.

May 22, 1947.

[181 P.2d 161, 51 N.M. 164]

Sam Dazzo and R. J. Nordhaus, both of Albuquerque, for appellants.

Rodey, Dickason & Sloan and Frank M. Mims, all of Albuquerque, for appellees.

SADLER, Justice.

This is an appeal from a final decree in suit for specific performance of a purported contract to purchase real estate. Relief was denied and one of the original plaintiffs, Gus Bruskas, appearing before us as appellant, seeks reversal of the decree dismissing his complaint.

The defendant, Supreme Lodge Order of Ahepa, is a charitable organization, the membership in which, in the main, is made up of persons of Greek extraction. It constitutes the governing body of the national organization composed of subordinate lodges throughout the country. The defendant, Ahepa Silver District Sanatorium, Inc., is a New Mexico charitable corporation andan agency of the national organization. At all times material to this controversy, it held title to the real estate involved in this suit. The two corporations conducted a tuberculosis sanatorium from 1937 to 1941 in buildings erected on the premises in question.

The plaintiffs long had been active and prominent in the affairs of the two corporations when the transaction out of which this suit arose took place. The one taking the leading part in such transactions, George Ades, had held the office of President and all subordinate offices of the Gallup Chapter and the office of District Governor of the district which includes New Mexico. He had also been a sponsor of the sanatorium corporation.

The plaintiff (and appellant) Gus Bruskas was likewise a member of Ahepa andwas president of the lodge's Albuquerque Chapter in the years 1935, 1936, and 1937 during which the Sanatorium property was purchased. He was the Albuquerque Chapter's delegate to the national convention of Ahepa every year from 1936 to 1943. He had been interested in opening the Sanatorium and had helped raise funds for this purpose. He attended every national convention of the order and favored continuance of the sanatorium against strong sentiment in the order for closing it.

The parent organization of Ahepa held its national convention at Atlanta, Georgia, in December, 1941. A resolution was adopted at this convention authorizing the Supreme Lodge to sell the sanatorium property. Shortly thereafter it was closed and the property subsequently leased to New Mexico Board of Public Health. While so leased and on October 20, 1945, Ades, in Albuquerque, talked with the Supreme President of the Order of Ahepa, Harris J. Booras, in Chicago, by long distance telephone, making an offer of $50,000 for the property on behalf of himself and another called a 'partner' in the deal, Bruskas, although the name of the partner was not disclosed to Booras, Supreme President. The price was agreeable and Booras informed Ades Ahepa would sell. No details were discussed, although mention was made by Ades of a $24,000 mortgage on the property which the purchasers would prefer to continue in effect, though prepared to pay all cash. Booras informed Ades in this conversation that it would be necessary that he and his partner send $10,000 earnest money to 'verify' the sale and promised Ades to include all these matters in a wire to him specifying terms of the sale. Booras added that he would instruct the Order's Albuquerque attorneys to close the sale and emphasized that Order of Ahepa was to pay no broker's commission.

Negotiations were entirely oral down to this point and void of details, except for agreement on sale price, amount of down payment and that Ahepa was to pay nocommission. They were barren of such important details as the time within which the sale should be completed, whether the purchase price was to be all cash or cash only for excess of purchase price over amount of the mortgage, the purchaser assuming the mortgage, as well as any other terms essential to the completed transaction. However, on October 20, 1945, the telephone conversation was followed by a telegram from Booras as Supreme President Order of Ahepa in Boston, Massachusetts, to Ades in Albuquerque, reading as follows:

'GEORGE ADES LIBERTY CAFE:

'ALBQ

'OFFER TO SELL SANITORIUM FOR FIFTY THOUSAND DOLLARS CASH IS ACCEPTABLE TO THE SUPREME LODGE STOP TO BE BINDING OFFERER MUST BY LETTER ADDRESSED TO ME AS SUPREME PRESIDENT STATE THAT HE AGREES TO PAY FIFTY THOUSAND DOLLARS CASH FOR SANITORIUM PROPERTY AND ACCOMPANY HIS LETTER WITH TEN THOUSAND DOLLARS CERTIFIED CHECK PAYABLE TO SUPREME LODGE ORDER OF AHEPA STOP ANOTHER CONDITION BEING THAT WE SHALL HAVE ON OR BEFORE NOVEMBER 30TH TO COMPLETE TRANSACTION STOP UPON RECEIPT OF LETTER AND CERTIFIED CHECK WE WILL COMMUNICATE WITH YOU AND OFFERER FURTHER FOR FINAL ARRANGEMENTS TO PASS TITLE STOP UNDERSTOOD NO COMMISSION TO BE PAID BY AHEPA TO ANYONE

'HARRIS J. BOORAS SUPREME PRESIDENT ORDER OF AHEPA.'

On the same date, October 20, 1945, Ades acknowledged receipt of the telegram by a letter to Booras as Supreme President Order of Ahepa, reading:

'October 20, 1945

'Mr. Harris J. Booris, Supreme Pres.

'Order of Ahepa

'10th Street

'Boston, Mass.

'Dear Harris:

'Received your telegram and am enclosing certified check in the amount of $10,000.00 as requested in the telegram.

'We perfer to have the mortage of $24,000.00 transfered to us from the Occidental Life Insurance Company: We will have the balance of $16,000.00, in escrow here in the bank as soon as the papers are ready.

'Yours truly,

'By Georges Ades'

Receipt of the certified check for $10,000 was acknowledged by a letter from Supreme President Booras to George Ades, dated October 29, 1945, reading as follows:

'Harris J. Booras

'Supreme President

Office of the Supreme President

Ten State Street

'Boston, Mass.

'Order of Ahepa

'Supreme Lodge Headquarters

'Washington, D. C.

'29 October 1945

'Mr. George Ades

'c/o The Liberty Cafe

'103 West Central Avenue

'Albuquerque, New Mexico

'My dear George:

'In response to my telegram I have received the $10,000 check relative to the sale of the property for the sum of $50,000. In the near future I shall make arrangements to either come to Albuquerque or to despatch some representative of Ahepa instead to consummate the deal. In the meantime, I would like to know as to who is purchasing the property and the address of same, for, according to your letter, it seems that you have sent the check and that you seem to be the purchaser.

'I enclose herewith copy of a letter which has been sent to Attorney Rodey, whom I have asked to act as our attorney to look up the status of the Silver District Sanitorium and as to what votes, authorities and documents are needed in order to consummate the transaction. You will please see him immediately, and, after consulting with him, report to me as to what is to be done.

'Mr. Rodey will also check into who the reported officers are now and as to whether or not we have to have special meetings to elect new officers to assign deeds and documents.

'With my best wishes to you and with the thanks of the fraternity for your very fine efforts, I remain,

'Cordially and fraternally yours,

's/ Harris J. Booras

'Harris J. Booras

'Supreme President

'hjb/rm

'Enc.'

The foregoing letter was dated October 29, 1945. On October 31, 1945, Bruskas was in Washington and talked to Booras and told Booras that Bruskas and Ades were buying the property. Booras said that he was glad of this. Booras then also told him that Ahepa was willing to sell on the basis of being paid merely for its equity, with the existing mortgage to be assumed by Bruskas and Ades.

On October 31, 1945, the Albuquerque attorneys for Ahepa wrote Ades to the effect that they had been advised to contact him 'in regard to the sanatorium and to fix up the papers for contemplated sale and soforth.' On November 7, 1945, Booras wrote to Ades as follows:

'My dear Brother Ades:

'I had assumed from our talks in Chicago as well as from our talks on the phone that there was an outside purchaser interested in the property, and, accordingly, I had wired you that we had accepted the offer, subject, of course, to the approval of the Supreme Lodge, and that I should receive a letter from the offeror as to the definite terms. I have deposited the money with Headquarters subject to approval by the Supreme Lodge and/or the officers of the Sanitorium corporation.

'I told Brother Bruskas in Washington, not having received an answer to my previous letter as to the offeror, that we are sending the Supreme Treasurer, Brother C. G. Paris, to Albuquerque, with full power to go into the transaction further with you and such others that may be interested and close the matter once and for all.

'When Brother Paris comes there, which will be next Sunday or Monday, you will please accord him every facility and extend to him every explanation that may benecessary in order to realize the maximum returns from this investment.

'Cordially and fraternally yours,

's/ Harris J. Booras

'Harris J. Booras

'Supreme President'

A few days later Ahepa sent the two representatives named in the foregoing letter to Albuquerque. They advised Ades and Bruskas that they had been instructed to repudiate the transaction and tendered them a repayment of the $10,000 which Ahepa had received with Ades's letter of October 20, 1945. This tender of repayment and subsequent ones were refused by the plaintiffs because of their belief that they had made an enforceable contract to buy the sanatorium property and not because of any deficiency as to time, manner, amount or other circumstances of the tender.

Under date of November 15, 1945, Ahepa proceeded to offer the sanatorium property for sale by publicly soliciting bids. Thereupon, on December 3, 1945, Ades and Bruskas filed their complaint in this cause.

The defendants filed their answer in which (1) the existence of a contract was denied; (2)...