Barnard v. Gardner In

• Decision Date: 17 March 1921
• Citation: 106 S.E. 346
• Court: Virginia Supreme Court
• Parties: BARNARD. v. GARDNER INV. CORPORATION.

106 S.E. 346

BARNARD.

v.GARDNER INV. CORPORATION.

Supreme Court of Appeals of Virginia.

March 17, 1921.

Error to Circuit Court of City of Norfolk.

Action by the Gardner Investment Corporation against Alice T. Barnard. Verdict for defendant was set aside, and judgment in favor of plaintiff entered, and defendant brings error. Reversed and rendered.

Rumble & Rumble, of Norfolk, for plaintiff in error.

Jas. G. Martin, of Norfolk, for defendant in error.

PRENTIS, J. Gardner Investment Corporation, engaged in the real estate brokerage business, through its president, J. W. Gardner, solicited and obtained from Alice T. Barnard the following contract:

"June 27, 1919. "To Gardner Investment Corporation:

"For and in consideration of one dollar ($1.-00), the receipt of which is acknowledged, I hereby appoint you exclusive agent to make sale of the real property herein described as 715 Boissevain avenue, for the price of $17,000 upon the following terms: $——cash; $—— secured by mortgage thereon for—— year at ——per cent. And you are hereby authorized to accept a deposit to be applied on the purchase price, and to execute a binding contract for sale on my behalf.

"In case the above described property is sold or disposed of within the time specified, I agree to make the purchaser a good and sufficient warranty deed to the same, and to furnish a complete abstract of title, if required; and it is further agreed that you shall have and may retain from the proceeds arising from such sale no commission on the above price and 100 per cent, of all of the consideration for which said property is sold over and above price above specified, amount for which said property may be sold.

"This contract to continue until July 27, 1919, and thereafter until terminated by me giving you as agent one day's notice in writing."

While the contract recites the consideration of $1 the evidence shows that the recital of such consideration is in print on one of the blanks of the company, and that no consideration was either paid, considered, or discussed. Before any sale of the property bad been made, Mrs. Barnard wrote this letter to the company:

"715 Boissevain Ave.,

"Norfolk, Va., July 3, 1919. "Gardner Investment Corporation, 330-333 Seaboard Bank Building, Norfolk, Va. "Gentlemen: Having reconsidered the matter of selling my home on Boissevain Ave., I beg you to allow me to withdraw the option on said property. Thanking you for your kindness, I am

"Very truly yours,

"[Signed] Alice T. Barnard."

On July 5th, when Gardner visited the property, Mrs¹. Barnard refused to allow the prospective purchaser, who accompanied him, to enter the house or to inspect its interior, a, nd discussed with Gardner her change of purpose and desire to revoke the authority of the company under the written contract. This was on Saturday, but, notwithstanding these clear indications of her intention to revoke the agency, thereafter, on Monday, July 7th, the company, through Gardner, undertook to exercise the authority conferred by the agreement by selling the property to D. T. I'Anson for $18,000. This purchaser sued Mrs. Barnard for specific performance of the contract, but for reasons satisfactory to himself dismissed his suit. Then the company instituted its action in assumpsit against her for the recovery of $1,000 as its compensation for finding such purchaser, claiming under the contract. The defendant pleaded non assumpsit at the trial; there was a verdict in her favor, which, upon motion of the company, was set aside; thereupon judgment was entered in favor of the company for $1,000, and of this judgment she is here complaining.

1. One of the questions raised is whether or not the defendant could prove by parol that notwithstanding the recital, of a consideration in the agreement there was in fact no consideration, and hence that the contract was revocable by her will. The trial court excluded this evidence, and refused to instruct the jury that the defendant had such power to revoke. It is not controverted by the company that an acknowledgement of a consideration in a written contract may be denied for many purposes, but it is claimed that it cannot be denied as to this contract because the effect of such denial is to nullify it.

One of the cases cited to support this view is Lawrence v. McCalmont, 43 U. S. (2 How.) 452, 11 L. Ed. 366, but what is said in that case is said with reference to a written guaranty of credit, and the court held that the guarantor, having expressly acknowledged the receipt of consideration in the contract, could not prove the lack of consideration for the purpose of showing that she was not thereby bound.

The other case chiefly relied upon is Wat-kins v. Robertson, 105 Va. 2S4, 54 S. E. 33, 5 L. R. A. (N. S.) 1194, 115 Am. St. Rep. 880. That case involved a written option under seal, whereby the owner of certain shares of capital stock of a corporation agreed with another to sell him such stock at a fixed price, to be delivered if the purchase price was paid on or before a certain date named therein. It was an option to buy, such as is commonly used, and the court there held that the owner was...