Catlett v. Bloyd
| Decision Date | 15 April 1919 |
| Citation | 99 S.E. 81 |
| Court | West Virginia Supreme Court |
| Parties | CATLETT v. BLOYD. |
(Syllabus by the Court.)
Certified Questions from Circuit Court. Marshall County.
Action by J. B. Catlett against J. A. Bloyd. Demurrer to plaintiff's declaration sustained, and questions certified to the Supreme Court of Appeals. Reversed, and demurrer overruled.
E. G. Smith, " of Clarksburg, and J. M. Ritz. of Wheeling, for plaintiff.
Chas. A. Showacre and J. Howard Holt, both of Moundsville, for defendant.
MILLER, P. The questions presented below upon the defendant's demurrer to the plaintiff's declaration and to each of the three counts thereof, and the court's decision sustaining said demurrer, have been certified to this court for its decision thereon.
The action is assumpsit for damages for the breach by defendant to perform his alleged contract to sell and convey a tract of land in Bath County, Virginia. The only written evidence of the contract averred in either of the counts, and specifically set out in the second count, is as follows:
The first count avers in substance that on October 6, 1917, the defendant being the owner of said tract and desirous of selling it, and plaintiff being engaged in buying and selling such lands, and being in touch with prospective purchasers of such properties, employed him to sell said land, and that he agreed to make an effort to sell the same at the stipulated price of three dollars per acre, or so much per acre as he could obtain therefor, upon the terms of $10,000.00 of the purchase money to be paid in cash, the deferred payments to be agreed upon between purchaser and seller, and that for his services and compensation for making such sale plaintiff was to receive all of the purchase money over and above the sum of three dollars per acre; and that on the same day and for the purpose of protecting plaintiff in making such sale defendant made a written proposition, the substance of which is set forth in this count. It is further averred in substance that in consideration of said agreement plaintiff undertook faithfully to perform the contract on his part, and that in consideration thereof defendant thereby promised plaintiff to perform and fulfil said agreement on his part, and that in the performance of his said agreement plaintiff did within ten days from said 6th day of October, 1917, examine said tract of land, that he made sale thereof at the price of five dollars per acre, and that to consummate said sale and within the time specified therein he duly and properly accepted said written proposition according to its terms and notified the defendant thereof, and that he was ready and willing to pay the $10,000 cash payment within thirty days as provided in the contract, and of his readiness to agree upon the deferred payments, but which the declaration averred had theretofore been agreed upon between him and defendant. And it is further averred that in further compliance with the contract on his part plaintiff within thirty days after his acceptance thereof for the purpose of consummating his said contract "was ready and willing to pay, and offered to tender to the said defendant the said sum of ten thousand dollars, being the cash payment of the purchase money for said land, but the said defendant would not permit the said plaintiff to make said tender and declined and refused said offer of tender, and then and there declined and refused to accept said ten thousand dollars and declined and refused to perform the said contract created by the acceptance of his proposition dated October 6th 1917, and refused to convey said land to him or to the purchasers obtained by said plaintiff, " in accordance with the terms and provisions of said contract, whereby plaintiff had lost and been deprived of the profits which he would otherwise have derived and acquired had defendant performed and kept his contract and permitted plain tiff to consummate the sale of said land, to his damage $75,000.00.
The second count omits the alleged contract of agency and counts simply on said written contract or option given plaintiff to purchase the land. It also avers plaintiff's acceptance of the said contract substantially as in the first count, and in addition alleges that said contract was formally accepted by plaintiff in writing by a letter addressed to defendant October 19, 1917, as follows:
It is also alleged that prior to the acceptance of said written proposition by plaintiff, the deferred payments of purchase money had been agreed upon, the terms being ten thousand dollars in one year from the date of the deed and ten thousand dollars each year thereafter until the purchase money should be fully paid, but that if the timber on said land was being removed, said deferred payments should be twenty thousand dollars, instead of ten thousand dollars, the same to be evidenced by negotiable promissory notes of the purchaser, payable as agreed, with interest at six per cent per annum, and secured by a deed of trust on the land. And it is averred that plaintiff could have resold said land at the price of five dollars per acre, and that defendant at the time he refused to comply with his said contract had notice thereof, but that after plaintiff's acceptance thereof, defendant, to prevent plaintiff from making such resale as he could and would have done and to deprive him of the profits which he could and would have derived therefrom, refused to execute the contract on Ins part, wherefore plaintiff had been damaged in the sum of $75,000.00.
The third count is substantially the same as the second, except that the written contract is not set out in terms, but only the legal effect thereof; and respecting the time of the alleged acceptance of the contract by plaintiff it is averred not literally as in the previous counts that it was accepted within the ten days provided in the contract, but that after his examination of the land within theten days aforesaid, said contract was "duly and properly accepted by him."
As to the first count counsel for demurrant undertake to support the ruling of the court on the grounds (1) that it is inconsistent with itself, (2) contains two separate and distinct causes of action, (3) that the contract pleaded, the terms of payment not. being stipulated in the written contract, constitutes a mere offer to negotiate, (4) that the offer to tender and pay as alleged is not sufficient, (5) does not name the purchaser. According to the written opinion of the circuit court, the ground of its ruling was that this count pleaded two contracts made on the same day, one verbal, the other written, the former of which became merged in the latter and could not form the basis of any action against the defendant, citing for this proposition Runnion v. Morrison, 71 W. Va. 254, 76 S. E. 457; 3 Elliott on Contracts, § 1983, p. 137, and cases cited.
[1, 21 We see no inconsistency in any of the averments of this count, nor do we perceive that it avers two separate and distinct causes of action, or is lacking in any other particular in stating a good cause of action. While an agency or brokerage contract is alleged, it is followed by the averment of the written agreement or proposition to plaintiff made to protect him in bis other contract, and as a means to, the end that he might be made secure in any sale he might make, and thereby reap the reward for his services. Under it plaintiff might sell and call for a deed to the purchaser, or by proper interpretation he might buy the land himself, and the defendant's contract was to convey to him or to anyone to whom he might...
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