Haviland v. Dawson

• Decision Date: 02 June 1965
• Docket Number: No. 3651.,3651.
• Citation: Haviland v. Dawson, 210 A.2d 551 (D.C. 1965)
• Parties: Suzanne HAVILAND, Appellant, v. Beverly DAWSON and J. C. Chatel, Appellees.
• Court: D.C. Court of Appeals

Page 551

210 A.2d 551

Suzanne HAVILAND, Appellant, v. Beverly DAWSON and J. C. Chatel, Appellees.

No. 3651.

District of Columbia Court of Appeals.

Argued April 5, 1965.

Decided June 2, 1965.

John L. Laskey, Washington, D. C., with whom Thomas Penfield Jackson, Washington, D. C., was on the brief, for appellant.

Joseph V. Gartlan, Jr., Washington, D. C., with whom Stephen Friedlander, Washington, D. C., was on the brief, for appellees.

Before HOOD, Chief Judge, and QUINN and MYERS, Associate Judges.

MYERS, Associate Judge.

In September 1960 appellee Beverly Dawson purchased a residence on Lot 868 in the District of Columbia, an irregular plot surrounded on all sides by other residential real estate, including Lots 901 and 9. The property was located between Arizona Avenue and Hurst Terrace and the only access to it from a public roadway was by way of a steep concrete stairway ascending from Arizona Avenue. During her occupancy, appellee Dawson had motor vehicle and pedestrian access from Hurst Terrace to her home by crossing the paved portion of adjoining Lot 901 although no easement for that purpose had been acquired from the owners thereof.

In February 1961 Mrs. Dawson listed the premises for sale with her own real estate firm and with that of appellee J. C. Chatel. In time, she contracted to sell the property to one Mandel who rescinded his agreement before settlement when she was unable to provide him with a right-of-way across Lot 901. On May 4, 1961, following negotiations with the owners of Lot 901, she obtained the conveyance of a ten-foot rightof-way "solely for the purpose of ingress and egress to the property of the Grantee 'by motor vehicle and by foot so long as the property of the Grantee is used and occupied for residential purposes," which was duly recorded May 12, 1961.

Prior to the acquisition of this right-of-way, Mrs. Haviland, then a nonresident, contacted Mr. Chatel to assist her in locating and buying a home in Washington. He showed her the Dawson residence but did not inform her of the absence of an access of right from Hurst Terrace although he was aware that this deficiency had caused the loss of a prior sale of the property. Mrs. Haviland advised Mr. Chatel that she would buy the residence and he filled in a standard printed sales contract, indicating a selling price of $25,000, to which he added, at his own instance, "Purchase includes permanent right of way ten feet wide for access through Hurst Terrace." He read the typed addendum over the telephone to Mrs. Dawson's lawyer who assured him it was "all right" to incorporate this provision in the contract. Mr. Chatel then submitted the agreement to Mrs. Haviland without comment as to the right-of-way provision. On May 3, 1961, she signed the contract. Mr. Dawson, after reading the entire agreement and increasing the sale price to $26,000, also signed it. Mrs. Haviland accepted the increase in price and on May 4, 1961, again signed the contract. Mr. Chatel attended the settlement at the title company on behalf of Mrs. Haviland where he was shown a copy of the right-of-way conveyance. He brought the plat therefor, enclosed in an envelope, to Mrs. Haviland and gave it to her without comment. At the same time he procured her signature on the title company settlement sheet.

During the summer of 1961 Mrs. Haviland reached her home on Lot 868 by driving across the paved area on Lot 901 and parking several feet from the corner of her lot. The owners of Lots 901 and 9 never complained of this practice until appellant's son came to live with her in September 1961 and also parked his car in the same area. Both adjacent property owners then objected and terminated any parking privilege on their land. At that time Mrs. Haviland for the first time learned that the right-of-way was not ten-feet wide for its length but dwindled to a width of about three feet for its final ten feet.

In October 1961 Mrs. Haviland was offered $28,500 for her property, but when the restricted extent of the easement on Lot 901 was disclosed, the prospective purchaser refused to consummate the sale. She thereafter sold Lot 868 to the owner of Lot 9 for $25,000 in March 1962.

In May 1962 this suit was filed by Mrs. Haviland against appellees seeking damages for untrue and false representations in the sale of the property to her and for breach of contract. In defense appellees asserted, inter alia, the doctrines of merger laches and estoppel. Expert testimony regarding the value of Lot 868 with and without the benefit of the right-of-way as set forth in the contract of sale was first received by the trial judge but subsequently stricken from the record. A judgment upon findings adverse to Mrs. Haviland was then entered from which this appeal ensued.

Appellant contends that the trial court erred in finding she had failed to establish fraud through concealment by either appellee. There was no evidence of independent fraud by Mrs. Dawson as property owner in the sale, although she could have been held vicariously liable upon a proper showing of fraudulent conduct by Mr. Chatel within the scope of his activities as broker. Turner v. Brewer, 54 App.D.C. 363, 364, 298 F. 685, 686 (1924). However, the mere sale of a defective article does not establish fraud by the seller. Spargnapani v. Wright, D.C.Mun.App., 110 A.2d 82 (1954); Michael Home Equipment Co. v. McCauley, D.C.Mun.App., 98 A.2d 101 (1953). In an action as here, where the fraud is based upon an alleged concealment or deceit relating to the collaterally agreed permanent right-of-way in the...