Et Ux. v. Mallos.
| Decision Date | 07 July 1948 |
| Docket Number | No. 616.,616. |
| Parties | MURPHY et ux. v. MALLOS. |
| Court | D.C. Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from The Municipal Court for the District of Columbia, Civil Division.
Action by James B. Mallos against Desmond F. Murphy and Hazel F. Murphy for commissions for procuring a purchaser of real estate owned by the defendants. From a judgment for plaintiff for $675, the defendants appeal.
Judgment affirmed.
Desmond F. Murphy pro se.
Jacob N. Halper, of Washington, D. C., for appellee.
Before CAYTON, Chief Judge, HOOD, Associate Judge, and BARSE, Acting Associate Judge.
This was a suit by a broker against the owners of real estate, to recover a commission of $675, for procuring a purchaser of said real estate, under a written contract with said owners. Trial was by jury, and resulted in verdict and judgment for plaintiff. Defendants have brought this appeal.
The first error assigned is the refusal of the trial judge to direct a verdict for defendants at the close of plaintiff's case. Though the record does not show that the motion was renewed at the close of all the evidence we shall examine appellants' contention in the light of the evidence bearing on the material issues. In their answer to the complaint defendants had asserted ‘that prior to and at the time of the execution of the alleged contract plaintiff represented to defendants that he could and would secure for defendants possession and occupancy of a suitable apartment prior to the time of settlement under said alleged contract; that in reliance upon said representation defendants signed said alleged contract; that notwithstanding said representation plaintiff failed and refused to obtain said apartment for defendants.’ A representative of plaintiff testified that after some preliminary discussions defendant Desmond F. Murphy authorized plaintiff to secure a purchaser for his home, which was done; that a contract for the sale of said home for $13,500 was signed by the defendants and the purchaser, a Mrs. Conway, plaintiff broker being also a party signatory thereto; and that no promise was made about an apartment.
Mrs. Conway testified that she was ready, able and willing to complete the purchase within the time fixed in the contract but that Mr. Murphy called her about three weeks after the signing of the contract and told her that they (he and his wife) had changed their minds about selling. Mrs. Conway also testified that Mr. Murphy did not mention anything about Mr. Mallos advising defendants that he could not and would not get an apartment for them.
Plaintiff Mallos testified as to the execution of the contract and also that Mr. Murphy told him about two weeks after the signing of the contract ‘that the sale was off’; that he did not promise to get defendants an apartment in which they could live before they signed the contract of sale, and that Mr. Murphy did not mention this when he told him the contract was off; that he had received no listing from the owners for the sale of the property and that because of this the District of Columbia Real Estate Commission suspended his license for one week.
Defendant Desmond F. Murphy testified that before the contract was signed it was understood and agreed that Mr. Mallos was to obtain for the defendants a suitable apartment, and that had not Mallos promised to obtain this apartment defendants would not have signed the contract; that Mallos was asked to put in the contract a provision that the apartment was to be obtained by him for defendants but Mallos replied that it was not necessary as he was agent for several apartment houses and would be able to and would find defendants a suitable apartment. Mr. Murphy also testified that about two weeks after the contract was signed he went to Mr. Mallos' office and asked whether he had found an apartment ‘as promised’; that Mallos replied that he could not get an apartment for defendants and did not intend to get one; that he asked Mallos to notify the purchaser that the contract was off and told Mallos that the contract was off because he had advertised the property against specific instructions and because he had repudiated his promise to obtain a suitable apartment for defendants.
Mrs. Murphy, co-defendant in the case, testified that before the contract was signed Mallos promised to obtain for them a suitable apartment to be available before they left their home; that but for...
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