Dixon v. Dodd et al.

• Decision Date: 26 April 1951
• Docket Number: No. 1040.,1040.
• Citation: 80 A.2d 282
• Parties: DIXON v. DODD et al.
• Court: D.C. Court of Appeals

80 A.2d 282

DIXON v. DODD et al.

No. 1040.

Municipal Court of Appeals for the District of Columbia.

Argued April 2, 1951.

Decided April 26, 1951.

Michael J. Keane, Jr., Washington, D. C., Karl Michelet and James J. Lauderdale, Washington, D. C., on the brief, for appellant.

George E. Happ, Washington, D. C., Charles F. Sanford, Washington, D. C., on the brief, for appellee Mary D. Thayer Dodd.

Joseph G. Dondero, Washington, D. C., for appellee Samuel M. Orrison.

Before CAYTON, Chief Judge, and HOOD and CLAGETT, Associate Judges.

HOOD, Associate Judge.

Defendant, Mrs. Dodd, signed a paper purporting to give plaintiff, Mr. Orrison, a real estate broker, the exclusive right for ninety days to sell certain real estate owned by her. About three weeks later Mrs. Dodd wrote Orrison that she was canceling his exclusive listing. A few weeks thereafter, and within the original ninety-day period, Mrs. Dodd sold her property through Mr. Dixon, another real estate broker, and paid him a commission of $525. Orrison thereupon sued Mrs. Dodd for $525. She in turn filed a thirdparty complaint against Dixon, asking for judgment against him for any sum adjudged owing by her to Orrison. Trial resulted in a verdict and judgment for $525 in favor of Orrison against Mrs. Dodd and a verdict and judgment in the same amount in her favor against Dixon. Dixon has appealed.

Appellant's first claim of error is the failure of the trial court to direct a verdict in his favor. He argues that the evidence did not make out a case on which the jury could find liability on his part. The theory of Mrs. Dodd's claim against Dixon was essentially that if she was responsible to Orrison for breaching the exclusive listing agreement, then Dixon in turn was responsible to her because she was induced to commit such breach by reason of misrepresentation made to her by one Mitchell, a salesman for Dixon.

The record discloses that Mitchell had known Mrs. Dodd for many years and when he saw Orrison's "For Sale" sign on Mrs. Dodd's property, he went to Colonial Beach, where she was then staying, to inquire if the property could be listed with his (Dixon's) firm; that Mrs. Dodd was dissatisfied with the efforts being made by Orrison and discussed with Mitchell changing the listing from Orrison to Dixon, she being uncertain as to whether the listing with Orrison was an exclusive one or for what period it had been given; that Mitchell told her she should not list it with Dixon until the agreement with Orrison was terminated and that he would find out the proper thing for her to do and would write to her; that Mitchell returned to Washington and later wrote Mrs. Dodd telling her "the usual way to cancel an exclusive listing" and she, in accordance with Mitchell's letter, wrote to Orrison that "Effective this date, August 31, 1948, I hereby cancel the exclusive listing given to you on my property," adding, "I have a sale for the house myself"; that thereafter she listed the property with Dixon and sold to a buyer produced by him, the said buyer being previously unknown to her or to Orrison.

That Mitchell knew Mrs. Dodd had given Orrison an exclusive listing and that he advised and guided her in the attempted cancellation of such listing is not questioned. She testified she had known Mitchell for a long time and being ignorant of the effect of an exclusive listing she relied on Mitchell and wrote to Orrison exactly as Mitchell advised her, relying on Mitchell's opinion that Orrison's agency could be legally terminated. Mitchell testified that he wrote the letter to Mrs. Dodd basing it on his opinion that she could revoke Orrison's agency if she was satisfied she was not receiving proper efforts from him, that it was his (Mitchell's) opinion that an exclusive listing could be revoked at any time for any reason at all, if done in go.4 faith and prior to production of a buyer by the agent.

From this evidence the jury could have found that Mitchell advised Mrs. Dodd that she without risk of liability could cancel Orrison's exclusive listing and thereupon list the property with Dixon. Ordinarily a misstatement of law is not ground for liability but there are exceptions to the rule. Where one has, or professes to have, a superior knowledge of the law, and particularly if there is a relationship of confidence between the parties, a misrepresentation of law may be actionable.¹ Mrs. Dodd was ignorant of the legal effect of an exclusive listing and she relied on Mitchell, an experienced real estate salesman whom she had known for many years and who professed to be able to advise her. She did not approach Mitchell. He went to see her for the purpose of getting the listing so that he and his firm could make a sale and obtain a commission. Under these circumstances, we think the misrepresentation was actionable. And we think Mitchell's claim of good faith is immaterial at least in the absence of a showing of a reasonable basis therefor.²

Appellant further argues that Mitchell's statement was not a misrepresentation but a correct statement of the law. In effect we are asked to overrule our decision in McManus v. Newcomb, D.C.Mun. App., 61 A.2d 36, 37, wherein we held that "when a broker in reliance upon an exclusive authorization to sell uses reasonable efforts to find a purchaser, expending time...