Hastings v. Montgomery

• Citation: 122 S.E. 155
• Decision Date: 11 March 1924
• Docket Number: (No. 4933.)
• Court: Supreme Court of West Virginia
• Parties: HASTINGS. v. MONTGOMERY.

122 S.E. 155

HASTINGS.

v.MONTGOMERY.

(No. 4933.)

Supreme Court of Appeals of West Virginia.

March 11, 1924.

(Syllabus by the Court.)

Appeal from Circuit Court, Fayette County.

Suit by B. S. Hastings against M. J. Montgomery. From a decree for plaintiff, defendant appeals. Reversed, and bill dismissed.

V. C. Champe, of Montgomery, and Dillon, Nuckolls & Maban, of Fayetteville, for appellant.

George Love and Hubard & Bacon, all of Fayetteville, for appellee.

MEREDITH, P. In a suit to compel specific performance by defendant of her contract to convey to plaintiff a business lot in the town of Montgomery, the circuit court of Fayette county decreed for the plaintiff, and defendant appeals.

When the transactions occurred which gave rise to this controversy, plaintiff was mayor of the city of Montgomery, and defendant, the widow of J. C. Montgomery, was a resident of and the owner of considerable property in the city. J. C. Montgomery died October 28, 1918, and devised to defendant the property here involved. On or about February 4, 1919, plaintiff visited defendant at her home and proposed to her that for a consideration of $2,500 she should convey the lot to the city that a city hall might be erected thereon; representing to her that the same proposition had been discussed with her husband, and that the latter had indicated his willingness to make such a sale. It seems that on the 13th of February plaintiff came to defendant again, this time stating that the city council desired a written option as evidence of her agreement to sell at the price named; at any rate, he secured such a writing, executed by defendant, dated February 14, 1919, and it is this option which is the basis of this suit. By the option defendant granted to plaintiff the exclusive right to purchase the property within 60 days from its date for $2,500, and nothing was said in it about the land being used for city purposes. Hastings seeks to enforce the contract, not as a representative of the city, but in his own right, and the circuit court decreed that upon payment to defendant of the $2,500 she should deliver to plaintiff an apt and proper deed for the property, except 8 1/2 feet depth, as hereinafter shown.

In her petition for appeal defendant says she refused to perform the contract because of the misrepresentations with respect to whom the deed was to be made, and as to the dimensions of the lot. From the testimony of those familar with real estate values in the city it appears that the property was very probably worth more than $2,500 at the date of the option. She assigns the following errors in her brief:

(1) The court erred in holding that the option was not one for the use and benefit of the city.

(2) The court erred in holding that the plaintiff was entitled to have the option con tract specifically enforced for his own personal use and benefit.

(3) The court erred in holding that the plaintiff had not committed fraud and misrepresentations, and that he was entitled to have the option specifically performed, even in the modified form, the court thereby making a contract for the parties.

In our view of the matter the second of these assignments covers the real issues involved; that is, was the plaintiff entitled to have the contract specifically enforced for his own benefit?

Defendant insists and plaintiff admits that when he first made the proposition to defendant on February 4, 1919, he told her that Mr. Montgomery in his lifetime had agreed with him to sell the lot for city purposes for $2,-500. But plaintiff also says—and this is an important element of his case—that defendant in this first interview inquired what the plaintiff would do if the city would not take the property. To this plaintiff says he replied, "If you make an exclusive option to me, I will take it if the city don't." Defendant flatly denies this part of the conversation, and maintains throughout this record that she had no intimation when the bargain was made that plaintiff was acting other than as mayor of the city. She is corroborated in this by the testimony of her daughter, Mrs. Owens, who stated that when plaintiff came for the written option, about the 14th of February, he told her that he had no personal interest in the proposition.

Having already secured defendant's oral agreement, plaintiff on February 13th again approached her, and requested the written option. He says:

"I told her that, if she would draw up the option in writing, the council would meet in a short time, and I would present it to the council and see if they wanted to buy it."

Defendant supplements this by testifying that in this interview she asked plaintiff what the council did as to the purchase of the lot, and that he replied that "They didn't do anything, but laid it on the table to the next meeting, " and "there were some of them that wanted the lot up there and some of them there, and asked me if I would give an option, and it was being circulated that it wouldn't be bought—that Luther and Mr. Simms were circulating it."

It is clear from the evidence of either of the parties, therefore, that in order to secure the option plaintiff used the argument that he wanted a written promise to present to the council for their consideration. Now the fact is that the minutes of the city council, a part of this record, show that the proposition of purchasing a lot for the city building was first taken up by that body on May 7, 1918, at which time it was voted unanimously that the property owned by M. E. Montgomery, an entirely different property fromthat of the defendant, "be purchased for town hall." However, at the next meeting, that of June 4, 1918, the motion to purchase the M. E. Montgomery lot was held for further consideration. On February 4, 1919, the day on which plaintiff first took the matter up with defendant, the council met again, and with reference to the lot purchase it was moved and seconded that the proposition pending on the minutes relative to the purchase of the M. E. Montgomery lot be confirmed. Six councilmen voted "Aye." Mayor Hastings and two members of a committee of citizens voted in the negative. It must be observed that this action of the council occurred 10 days prior to the date, when, with representations that he wanted to submit the matter to the council, plaintiff secured the written option from defendant. However, there is evidence in the record that the plaintiff expressed himself at the time as entertaining hopes of winning over certain members of the council; and he explains that he did not consider the action of the council as necessarily final. Furthermore, on February 7th plaintiff wrote a letter to the town newspaper, in which he expressed himself as opposing the action of the council relative to the town hall location, and as favoring the purchase of property further back from the railroad.

We could not say, therefore, that plaintiff's representations that he was seeking the option for the benefit of the city were untrue. We can say,...