Goldman v. Bloom

• Decision Date: 29 June 1979
• Docket Number: No. 76-420,76-420
• Citation: 280 N.W.2d 170,90 Wis.2d 466
• Parties: Lowell GOLDMAN, Plaintiff-Respondent and Cross-Appellant, v. Howard BLOOM and Kenneth Alles, Defendants, Sidney Perssion, Defendant-Appellant and Cross-Respondent.
• Court: Wisconsin Supreme Court

Page 170

280 N.W.2d 170

90 Wis.2d 466

Lowell GOLDMAN, Plaintiff-Respondent and Cross-Appellant, v. Howard BLOOM and Kenneth Alles, Defendants Sidney Perssion, Defendant-Appellant and Cross-Respondent.

No. 76-420.

Supreme Court of Wisconsin.

Submitted on Briefs May 31, 1979.

Decided June 29, 1979.

Donald S. Eisenberg, Hugh J. Hayes and Eisenberg, Giesen & Ewers, Madison, on brief, for defendant-appellant and cross-respondent.

Robert L. Elliott and Cook & Franke, S. C., Milwaukee, on brief, for plaintiff-respondent and cross-respondent.

HANSEN, Justice.

The dispute herein arose out of a series of transactions concerning a condominium in the Bahamas. All of the parties are residents of Wisconsin, and the action was commenced by personal service. Although a series of real estate transactions are involved, there is no documentary evidence except for some cancelled checks and some self-serving memoranda. The testimony of the parties at trial was essentially in agreement regarding the initial transactions.

The first transaction concerned a trade of properties between Perssion and Howard Bloom, one of the defendants, in October, 1973. Bloom transferred some Wisconsin real estate valued at approximately $90,000 to Perssion. Perssion paid off a $60,000 mortgage on these properties and traded Bloom a condominium in the Bahamas valued at $30,000, identified as Apartment 1109, Lucayan Towers South, Lucaya, Grand Bahamas. No deed to this condominium was ever given to Bloom because Bloom told Perssion he might want to sell the condominium and would prefer to save the $900 recording fee. Perssion also loaned Bloom $20,000 which was to be secured by a mortgage on the condominium. We do not know if the mortgage was ever executed, but at any rate Bloom made some payments to Perssion and in December, 1974, the balance on this obligation of Bloom to Perssion was approximately $18,000.

In November, 1973, Goldman agreed to purchase the condominium from Bloom for $37,000. In payment of the property, Goldman transferred some Wisconsin real estate to Bloom valued at $17,500, made some payments in the succeeding months, and in late 1974 there remained a balance due on the purchase price from Goldman to Bloom of $9,000. This remaining obligation of $9,000 was to be evidenced by the execution of a note; however, the note was never executed.

Bloom gave Goldman the key to the condominium and Goldman moved in. He redecorated the apartment and furnished it. He spent $210 to have his car shipped to the Bahamas and paid a $900 fee to have the car registered. He paid the condominium fees by check to Bloom, who continued to receive the assessment bills from the condominium association. Bloom was to endorse these checks and forward them to the association.

Goldman made his first trip to the condominium in February, 1974. During his visit he was approached by Perssion who he had not met before. Goldman told Perssion that he understood that either Perssion or his wife had told one of Goldman's previous guests at the condominium that Perssion had an interest in the condominium. Goldman testified that Perssion replied that he did have an interest but that it was not very significant and that Goldman should not be concerned. Perssion said it would be worked out with Kenneth Alles, a defendant and not a party to this appeal, who owned several condominiums in the building. Goldman testified that he told Perssion that he had been embarrassed and that he wanted the problem straightened out with the manager. He said they ultimately met with the manager and that Perssion told the manager that Goldman was the new owner and that his guests should be allowed to use the condominium. Goldman said he told the manager that Perssion was not to be admitted. Goldman said that after this meeting with the manager the bills were sent to him.

Goldman continually demanded that Bloom give him a deed to the property. At one point, he testified, Bloom told him Alles had the deed and he would get it from him when he returned to town. Bloom finally scheduled a closing at his office in Milwaukee in April, 1974. Goldman, Bloom, Perssion and Alles attended this meeting.

Goldman testified that while he and Perssion were waiting for the meeting to start he asked Perssion about his business relationship with Bloom. He said that Perssion replied that it was none of his business, that Goldman was there for a deed and that was what he was going to get. Goldman said that during the subsequent meeting he was handed a deed to the condominium, which recited that title was vested in Lowell Goldman. He said that this deed, which was written on heavy parchment paper with a gold seal and red ribbon, was signed by Bloom, Perssion and himself. He said the deed contained no contingencies or restrictions that he had the deed in his possession after it was signed, and that he told the others he would record it in the Bahamas the following week. He testified that Perssion and Bloom then discussed how the $900 recording fee was to be divided and finally agreed that each would pay half or $450. He said he had made the first fold in the deed and was preparing to put it in his pocket when either Perssion or Alles said it would not be necessary for him to go to the Bahamas and that Alles explained that Goldman would have trouble with the attestation required to record the deed because it had to be made by someone known in the Bahamas. Alles said he would be going there the next week and could record the deed for Goldman. Goldman then gave the deed to Alles for recording.

Goldman further testified that Bloom told him he paid Perssion the $450 that evening. No contingencies to the recording of the deed were discussed that day and no mortgages, notes or other memoranda were signed. Goldman did not request an abstract or title insurance because he understood that Bahamian title searches were expensive. He did not execute a $9,000 note to Bloom at the time because Bloom said he had told Perssion he would assign the note to Perssion, and Goldman, therefore, did not want to execute such a note until the deed was recorded. Goldman did not know at the time that Perssion claimed to have a mortgage on the property.

The testimony of Bloom substantially corroborated the testimony of Goldman. This included testimony that nothing was said in Goldman's presence about Perssion having a mortgage on the property or any other contingency. Bloom testified that Alles was present at his request because Bloom knew the deed would have to be recorded by someone known in the Bahamas. Bloom also said he gave Perssion a check for $450 that same day in payment of his one-half of the $900 recording fee. After Goldman left the meeting, the matter of the settlement of the $18,000 obligation from Bloom to Perssion was discussed and Perssion agreed to accept a note from Goldman in the amount of $9,000, the balance due from Goldman to Bloom on the purchase price, plus security from Bloom for the remaining balance of $9,000. Nothing was said about Perssion withholding the recording of the deed until Perssion had been paid, and when Bloom left he assumed the deed would be recorded.

The testimony of Perssion in regard to the meeting was somewhat different and somewhat inconsistent. He testified that Bloom told him that he had a cash buyer for the condominium, that the mortgage would be paid and the deed given directly to the buyer to save on the recording fee, which they agreed to divide equally. He said Bloom said the buyer would turn over $9,000 in cash at the closing and that Bloom would give him a $9,000 mortgage on some other real estate. He asked for the cash and mortgage at the closing and Goldman agreed to pay him $9,000 but said he preferred to give a note to avoid a loss on stock he would have to sell to get the cash. Perssion said he agreed to take a note. Perssion testified that he gave the deed to Alles and asked him to hold it until they got the financing straightened out, and that he subsequently asked Alles to return the deed to him because he had not received Bloom's $9,000 note or $450 recording fee. He testified he did not know what happened to the deed and he assumed that he had destroyed it.

Alles testified that Perssion handed him the deed and that this deed, on its face, transferred the property to Goldman. He said he left the meeting with the deed and Perssion told him that when he had his business straightened out with Bloom and Goldman he would give him the recording fee, which, in fact, was never given to him. He said he returned the deed to Perssion when Perssion asked for it several weeks later.

Goldman also testified that he didn't visit the condominium again after the closing, but that he did allow friends to use it. He said that about a month and a half after the closing Perssion asked him to go on a trip to the Bahamas. Goldman was unable to go but asked Perssion to take some personal belongings to the condominium for him, including wallpaper, and he gave Perssion a check to cover an arrearage on the electricity which had been caused by some confusion between the three of them. Also on an occasion after the closing Perssion asked Goldman if he could use the condominium for an overflow of guests.

Goldman said he first learned that the deed had not been recorded in June or July of 1974, and he then attempted, unsuccessfully, to contact Alles.

Bloom testified that two or three more meetings were held between himself, Goldman and Perssion after the problem arose and Perssion then took the position that he would not record the deed until he was paid off.

Bloom filed a voluntary petition in bankruptcy prior to trial. Goldman filed a claim against Bloom in bankruptcy court but Perssion did not.

The case was submitted to the jury in a special verdict. The jury found that Perssion executed a deed conveying the condominium to Goldman and agreed to have it recorded without further...