Besser v. Allen

• Decision Date: 30 December 1920
• Docket Number: No. 485.,485.
• Citation: 111 A. 885
• Parties: BESSER v. ALLEN.
• Court: Rhode Island Supreme Court

111 A. 885

BESSER

v. ALLEN.

No. 485.

Supreme Court of Rhode Island.

Dec. 30, 1920.

as purchaser a contract for sale which she signed, but which obligated no one to purchase.

Appeal from Superior Court, Providence and Bristol Counties; Willard B. Tanner, Presiding Justice.

Bill by E. A. Besser against M. L. Allen. From a decree for complainant, respondent appeals. Reversed and remanded, with directions to dismiss bill.

Cushing, Carroll & McCartin, of Providence, for appellant.

Curtis & Ball and Adolph Gorman, all of Providenee, for appellee.

SWEENEY, J. This is a bill in equity to compel the specific performance of an agreement to sell a house and lot. The case was heard in the superior court on bill, answer, and proof, and, after decision for the complainant, a final decree was entered, ordering the performance of the agreement, and the respondent duly claimed an appeal therefrom to this court. The reasons of appeal allege that the decree is against the law and the evidence, and that the court erred in finding that the respondent was not entitled to independent advice.

The complainant testified that he had boon in the real estate business for five years; that he accidentally ran across the respondent, while he was looking for a piece of property for sale, in the vicinity where she lived, as he had a client who wanted to buy a house, and she said that her property was for sale, and he replied that he would like to see what he could do for her on it; that she then invited him into her house and gave him full particulars about her property; that three days later he called again and received permission from her to show the house to a Mr. Chase; that the complainant and Mr. Chase and two others called and examined the house, and afterwards, September 27, 1919, while the complainant and respondent were alone in her house, he wrote an agreement which she signed, wherein she acknowledged receipt from him of $100 as a binder, and the balance was to be paid within 60 days. He testified that he read this agreement to her, and explained to her that she was selling the house, and that she read it herself. He further testified that two or three weeks later he called upon her to get particulars for the deed, and she then told him that she had changed her mind in regard to selling, and November 14, 1919, he notified her by letter that he would be ready to carry out the contract of sale on November 25, 1919, and expected a deed from her at that time. The respondent did not appear at the time appointed, and never tendered a deed, and the complainant then commenced these proceedings. On cross-examination the complainant testified that his first meeting with the respondent was when he called upon her, on the third floor of her house; he saw that she was a woman nearly 74 years of age, and he afterwards learned that she was living alone. He further testified that he did not tell her to ask a friend or legal adviser about the property, although he knew at the time that she had a lawyer, on account of an attachment being upon the property. The complainant also testified that the respondent listed the property with him for sale three or four days before she sold it to him, and he produced his record to prove this fact.

The respondent testified that she is in her seventy-fourth year; lives in the attic of her house; is in poor health, and that her first meeting with the complainant was when he knocked at her door and asked if he might come in, and she said, "Yes," and after some preliminary talk he asked her if the house was for sale, and she said she might sell later, on conditions, but not at present, because there was an attachment on the house. He asked her if she would object to his bringing parties to see the house, and she said it would be foolish to do anything of the kind; but to her surprise a couple of days afterwards he brought three persons...