Burka v. Crestview Corporation, 6903.

• Decision Date: 02 July 1974
• Docket Number: No. 7418.,No. 6903.,No. 7287.,6903.,7287.,7418.
• Citation: Burka v. Crestview Corporation, 321 A.2d 853 (D.C. 1974)
• Parties: Gertrude BURKA, Appellant, v. CRESTVIEW CORPORATION and Gerard M. Lavay, Appellees (two cases). CRESTVIEW CORPORATION and Gerard M. Lavay, Appellants, v. Gertrude BURKA, Appellee.
• Court: D.C. Court of Appeals

321 A.2d 853

Gertrude BURKA, Appellant, v. CRESTVIEW CORPORATION and Gerard M. Lavay, Appellees (two cases).

CRESTVIEW CORPORATION and Gerard M. Lavay, Appellants, v. Gertrude BURKA, Appellee.

No. 6903.

No. 7287.

No. 7418.

District of Columbia Court of Appeals.

Argued January 22, 1974.

Decided July 2, 1974.

Benjamin D. Levine, Washington, D. C., with whom Hubert M. Schlosberg, Washington, D. C., was on the brief for appellant in Nos. 6903 and 7418 and appellee in No. 7287.

Joe M. Kyle, Silver Spring, Md., for appellees in Nos. 6903 and 7418 and appellants in No. 7287.

Before REILLY, Chief Judge, and FICKLING and GALLAGHER, Associate Judges.

PER CURIAM:

This is an action for breach of a contract in the sale of certain real property located in Chevy Chase, Maryland and it arises out of the following facts.

Mrs. Burka, a widow, decided to move from the family home in the District of Columbia to a home or apartment closer to that of her son. In time she became interested in a townhouse located on the northwest District of Columbia-Maryland boundary in a development known as Crest IL This development was under construction by the Crestview Corporation. In negotiating for the property Mrs. Burka dealt with that company's president, Mr. LaVay.

Concerned about the offering price ($85,000), since she was to be the first purchaser in the development, Mrs. Burka sought and received assurance from the seller that she would not pay more for the property than those who purchased subsequent to her in the development. This assurance took the form of the following clause in the contract of sale:

In the event any unit of the Crest II is sold by the Seller for less than the purchase price herein, this contract shall be adjusted to reflect that same price.

In addition to the above, Mr. LaVay signed the contract in his individual as well as his corporate capacity.

Settlement took place on December 2, 1969, and at that time Mr. LaVay assured Mrs. Burka that he would abide by the contract and would inform her whether any unit sold for less than $85,000. At the time of settlement no other townhouses had been sold. The townhouses were then listed exclusively with a real estate agency for a period of six months at offering prices of $87,000 to $89,000. No townhouses were sold at these prices and the exclusive listing was terminated. Twelve units were subsequently sold for $79,500, three for $82,500 and one for $82,700.¹

Mrs. Burka commenced suit in Superior Court for damages for failure of Crestview Corporation and Mr. LaVay to fulfill that part of the sales contract which promised that the contract price would be adjusted to reflect the same price as any sales for less than the $85,000 price at which she had contracted. The case was tried by a jury and a verdict was rendered against both the corporation and Mr. LaVay individually in the amount of $5,500.00 ($85,000 less $79,500 = $5,500).

After the jury's verdict the trial court granted judgment notwithstanding the verdict to the defendants on the ground that the jury, as a matter of law, must have had to speculate as to the amount of damages because the contractual provision was vague. Mrs. Bruka then filed a motion for reconsideration setting forth reasons why the jury need not have speculated on the issue of damages. This motion was granted and the jury verdict was reinstated as to the corporate defendant. As to Mr. LaVay, however, the motion was denied because the court found that Mr. LaVay had no individual interest in the townhouses on which he could contract and that there was a failure of consideration between him and Mrs. Burka.

On appeal there are three...