Barcroft Woods, Inc. v. Francis
| Decision Date | 30 November 1959 |
| Docket Number | No. 4987,4987 |
| Citation | 201 Va. 405,111 S.E.2d 512 |
| Court | Virginia Supreme Court |
| Parties | BARCROFT WOODS, INCORPORATED v. ROBERT J. FRANCIS. Record |
L. Lee Bean and Herbert Charles Harper (Bean & Sizemore, on brief), for the plaintiff in error.
David B. Kinney (Murdaugh S. Madden, on brief), for the defendant in error.
In a motion for judgment supplemented by an amended motion and bill of particulars, Robert J. Francis, sometimes hereinafter referred to as the plaintiff, brought an action at law against Pomponio Realty Company and Barcroft Woods, Inc., sometimes hereinafter referred to as the defendants, for damages for breach of a written conditional purchase agreement and sales contract whereby the plaintiff alleged that the defendants had agreed to sell to him a lot in Lake Barcroft Estates, to construct a residence thereon, and to landscape the lot; that a lake on which the lot fronted would be 'cleaned out by Barcroft Lake Shores, Inc.;' that when the lake had been 'lowered' by the concern the defendants would 'install' a 'sand beach' on the lot; that he, the plaintiff, had agreed to buy and had bought the property upon these terms; and that the defendants had failed to clean out the lake, to install the sand beach, to do the landscaping, and to complete the building in a workmanlike manner.
A demurrer to the motion was overruled and grounds of defense making a general denial of the plaintiff's claims were filed. By consent of all parties a jury was waived and the evidence was heard by the lower court which entered a judgment in favor of the plaintiff against the defendant, Barcroft Woods, Inc., for these items of damages:
For failure to clean out lake and install a sand beach .. $7,100.00
Failure to panel cinder block walls in basement ............ 385.00
Failure to properly paint gravel strip or flashing ......... 140.00
Failure to finish sodding lot .............................. 300.00
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Total ................................................... $7,925.00
There was a judgment in favor of the defendant, Pomponio Realty Company.
Barcroft Woods, Inc., has appealed claiming in substance that the court's finding and judgment against it for the several items of damages are contrary to the law and the evidence.
The facts stated in the light of the lower court's finding are these: The plaintiff, Francis, who lived with his wife and family in the District of Columbia, was desirous of moving to a house in the suburbs. In looking over a model house in the Lake Barcroft area in Fairfax county, Virginia, he met Lincoln P. Vance, a salesman employed by Pomponio Realty, Inc., a real estate brokerage concern. Vance interested Francis in lot number 683 in section 7 of Lake Barcroft Estates, owned by Barcroft Woods, Inc. A map of the development showed this lot as fronting on a lake, but at the time of the transaction the supposed lake was a marsh through which ran a small stream. Vance assured Francis that the developers of the property were going to clean out the marsh and convert it into a lake and that 'Pomponio Realty was going to see that this was done,' because it owned a number of other lots in the vicinity. He told Francis that the lots fronting on the lake were more desirable and considerably higher in price than those not adjacent to the waterfront. Francis decided to pay the additional price and buy this particular lot.
Francis had seen in the neighborhood a house which attracted his interest. Vance told him that Arthur Pomponio was a competent builder and through one of his companies would erect on the lot a house substantially similar to that in which he was interested.
Arthur Pomponio and his associates are the principal owners and operators of M. Pomponio & Sons, Inc., engaged in construction work; Pomponio Realty, Inc., the real estate brokerage firm with which Francis was dealing; and Barcroft Woods, Inc., which owned seventy-two lots in the area, including that which Francis desired to purchase.
While Pomponio finally ratified the proposed agreement between his organization and Francis, before doing so he suggested that Francis see Joseph V. Barger, the original developer of Lake Barcroft Estates, and assure himself that a lake would be constructed bordering on the desired lot. Francis went with Vance, the real estate agent, to see Barger and both testified that Barger assured them that the lake would be constructed and that the water would be 'lowered' in the summer months so that the sand beach desired by Francis could be constructed on the lot.
Barger, the original developer of the subdivision, did business through several corporations. One of these was Barcroft Lake Shores, Inc., which had owned and sold to Barcroft Woods, Inc., the Pomponio company, the lots in the development, including that which Francis had agreed to buy. Another of Barger's corporations was Barcroft Beach, Inc., which he testified held 'title' to the 'lake' and without whose permission neither Barcroft Lake Shores, Inc., nor any of the Pomponio companies could clear, dredge out, or lower the water in the lake. The relation of these companies to the property was not made known to Francis. While Barger did not deny that the map displayed in his office showed that the Francis lot fronted on a lake, he denied that he had promised or represented to Francis or Vance that the supposed lake would be constructed by any of his (Barger's) companies.
After the interview between Barger, Francis and Vance, the two contracts which are the basis of this suit were executed in May, 1955. One of these was a sales contract whereby Barcroft Woods, Inc., as seller, through Pomponio Realty, Inc., its agent, agreed to sell to Francis, and he agreed to buy, the lot with 'improvements' thereon for the sum of $46,000, of which $8,650 was represented by Francis's equity in a residence in Washington, D.C., and the balance of which was to be paid in monthly installments. This agreement contained these further provisions: ...
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