Hartmann v. Windsor Hotel Co., 10381

• Decision Date: 18 December 1951
• Docket Number: No. 10381,10381
• Citation: 68 S.E.2d 34,136 W.Va. 681
• Parties: HARTMANN et al. v. WINDSOR HOTEL CO. et al.
• Court: West Virginia Supreme Court

Page 34

68 S.E.2d 34

136 W.Va. 681

HARTMANN et al. v. WINDSOR HOTEL CO. et al.

No. 10381.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 2, 1951.

Decided Dec. 18, 1951.

Syllabus by the Court.

1. 'An offer in writing to purchase real estate, subject to the terms of an existing lease thereon, which offer is accepted in writing, subject to the lease mentioned in the said offer, creates a contract for the sale of such real estate, subject only to the terms of the lease in respect to which such offer and acceptance were made, and, subject to such lease, is binding and enforceable by either party to such contract.' Point 2, Syl., Hartmann v. Windsor Hotel Co., 132 W.Va. ---- .

2. 'A person for whom compensation for services is provided under a contract made by others, to which contract he was not a party, is a creditor beneficiary thereunder, and may, in a suit in equity, recover under the same, even though such contract was not made for his sole benefit.' Point 1, Syl., Hartmann v. Windsor Hotel Co., 132 W.Va. ---- .

3. 'In the absence of a showing of illegality, fraud, duress, mistake or insufficiency of consideration, the terms of an unambiguous written agreement may not be varied or contradicted by parol evidence of statements of any of the parties thereto made contemporaneously with or prior to the execution of such agreement.' Point 1, Syl., Central Trust Company, Exr. v. Virginia Trust Company, et al., 120 W.Va. 23 .

4. 'An unambiguous written agreement entered into as the result of verbal or written negotiations will, in the absence of a showing of fraud or mistake, be conclusively presumed to represent the final agreement of the parties thereto, and may not be varied or contradicted by evidence of conversations or statements had or made at the time of or prior to its execution.' Point 2, Syl., Central Trust Company, Exr. v. Virginia Trust Company, et al., 120 W.Va. 23 .

5. Where the circumstances are such as to permit the introduction of parol testimony to vary or contradict the terms of a written agreement, to effect such a variation or contradiction, evidence in support thereof must be clear and convincing.

Handlan, Garden, Matthews & Hess, Joseph R. Curl, Wheeling, for appellants.

Goodwin, Nesbitt, Spillers & Mead, Wheeling, Dayton, Campbell & Love, and Charles M. Love, Charleston, for appellees.

FOX, President.

This suit was originally instituted by Charles Hartmann against the Windsor Hotel Company, a corporation, Vernon B. Derrickson, Derrickson Hotels, Inc., a West Virginia Corporation, and The Blades Corporation, a West Virginia Corporation, the purpose of which was to collect the sum of $15,000, alleged to be due to him from the Windsor Hotel Company, growing out of the sale of its hotel property, located in Wheeling, West Virginia. The cause was before us on certification of the pleadings, decided on the 15th day of February, 1949, and reported in 132 W.Va. ----, 52 S.E.2d 48. Upon remand of the cause to the Circuit Court of Ohio County, DeWitt B. Bayer, a defendant named in plaintiff's original bill, but who had not been served with process, nor until that time, had he appeared in the cause, filed his answer and crossbill, and brought into the cause, as additional defendants, Russell B. Goodwin, trustee, and the Wheeling Dollar Savings & Trust Company. The general purpose of said answer and crossbill, so filed by Bayer, was to secure the enforcement of an alleged contract of sale of the Windsor Hotel in the City of Wheeling, out of which the claim of the plaintiff arose. The issues were presented, a trial had in the Circuit Court of Ohio County, resulting in the dismissal of the original bill filed by Hartmann, and the amended answer and crossbill of DeWitt B. Bayer, the result of which was that the plaintiff and cross complainant took nothing by their suits. This decree was entered on July 16, 1950, and on March 19, 1950, at the instance of the plaintiff and cross complainant, we granted this appeal. To make this opinion complete, it will be necessary to repeat much of the matter contained in the opinion filed when the case was formerly before the Court.

In July, 1946, the Windsor Hotel Company was the owner of what is commonly known as the Windsor Hotel property in the City of Wheeling, which property was then under lease to the Derrickson Hotels, Inc. This lease was entered into on the 31st day of may, 1940, and leased said property to Vernon B. Derrickson for a term of five years, with the privilege of extension for an additional five years, which privilege appears to have been exercised, and said lease was assigned by the lessee to Derrickson Hotels, Inc. The lease contained this provision: 'It is agreed by the parties hereto that should the lessor receive a bona fide offer for the purpose (sic) (purchase) of the property hereby leased at any time during the term of this lease, then said offer shall be immediately communicated to the lessee and the lessee shall have thirty (30) days in which he may purchase said property under the terms and conditions contained in said offer.'

Early in July 1946, the plaintiff, Charles Hartmann, came in contact with certain persons in the City of Chicago, who were represented to him at that time to be desirous of purchasing hotel properties or other real estate in Wheeling, and through his efforts the cross complainant, DeWitt B. Bayer, came to Wheeling about the 8th day of July, 1946, for the purpose of investigating the Windsor Hotel property and to negotiate for its purchase. Negotiations for the sale of the hotel progressed to the point that on July 9, 1946, the said Bayer addressed to the Windsor Hotel Company a letter, the pertinent provisions of which, so far as this litigation is concerned, read as follows:

'The undersigned hereby offers to purchase the Windsor Hotel property, including all buildings, equipment, furniture, furnishings and personal property of every kind, nature and description contained in said buildings or used in the operation of said hotel property or any of the leased portions thereof for the sum of Three Hundred and Fifteen Thousand Dollars ($315,000.00).

'In connection with said purchase, you will pay a brokerage commission of Fifteen Thousand Dollars ($15,000.00) to Charles Hartmann, of Wheeling, West Virginia, which is the full and complete brokerage commission in connection with the sale of this property; should said brokerage commission exceed the sum of Fifteen Thousand Dollars ($15,000.00) the undersigned will pay any excess.

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'This offer shall be open for acceptance by you subject to the terms of that certain lease dated that 31st day of May, 1940, by August 1, 1946, and shall be subject to complete acceptance by you on or before August 15, 1946; otherwise, at the option of the undersigned, said offer shall become null and void and the earnest money tendered herewith shall be forthwith returned to the undersigned.'

The offer contained a statement that Bayer had deposited, as earnest money, with the Half Dollar Trust and Savings Bank of Wheeling the sum of $10,000, and an agreement to deposit with said bank an additional $15,000 within three days after the acceptance of the offer, and the balance of the purchase money was to be deposited within eight days after notification of the acceptance of the offer. The reference to the lease of May 31, 1940, was to call attention to the right of Vernon B. Derrickson, who in the meantime had assigned the benefit of his lease to the Derrickson Hotels, Inc., to purchase the hotel upon the same terms and conditions as those proposed in the offer then made by Bayer.

It was understood at the time that the offer so made would be submitted to the stockholders of the Windsor Hotel Company for their approval or disapproval.

The next step in the transaction was a notice by the Windsor Hotel Company to its stockholders of a special meeting to be held in the City of Wheeling on July 29, 1946, for the purpose of considering the offer to purchase the hotel which had been theretofore made by Bayer. This notice, so far as pertinent, reads as follows: 'To Stockholders of the Windsor Hotel Company:

'Please take notice that a Special Meeting of the Stockholders of The Windsor Hotel Company will be held at the Windsor Hotel, in the City of Wheeling, Ohio County, West Virginia, on the 29th day of July, 1946, at 10:00 A.M., Eastern Daylight Savings Time, for the following purposes:

'(1) To consider and either accept or reject an offer made by DeWitt B. Bayer, under date of July 9, 1946, to purchase all of the Windsor Hotel property, including all buildings, equipment furniture, furnishings and personal property of every kind, nature and description contained in said buildings or used in the operation of said Hotel property, for the sum of Three Hundred and Fifteen Thousand Dollars ($315,000.00), of which Fifteen Thousand ($15,000.00) shall be paid as brokerage commissions.

'(2) To consider and either accept or reject an equivalent offer, if made, for the purchase of the same property by Vernon B. Derrickson, who is now the Lessee of the Windsor Hotel property and, under the terms of his Lease, dated May 31, 1940, is given the privilege of purchasing said property within thirty (30) days under the same terms and conditions contained in any bona fide offer for the purchase of said property. The said Lessee, Vernon B. Derrickson, has been notified of the offer of DeWitt B. Bayer and furnished a copy of the same.'

A proxy form was furnished to each stockholder, accompanied by a general statement of the financial condition of the Windsor Hotel Company, a corporation, and in that proxy it is stated that the meeting was then being called 'To accept the offer of DeWitt B. Bayer, dated July 9, 1946, to purchase all of the property of The Windsor Hotel Company for the sum of $315,000.00 or to accept an equivalent offer, if made, by Vernon B. Derrickson,...