Hawkins & Chamberlain v. Mathews

• Decision Date: 11 March 1932
• Citation: 47 S.W.2d 547,242 Ky. 732
• Parties: HAWKINS & CHAMBERLAIN et al. v. MATHEWS et ux.
• Court: Kentucky Court of Appeals

47 S.W.2d 547

242 Ky. 732

HAWKINS & CHAMBERLAIN et al. v. MATHEWS et ux.

Court of Appeals of Kentucky

March 11, 1932

Appeal from Circuit Court, Kenton County, Common-Law and Equity Division.

Action by Claud Mathews and wife against Hawkins & Chamberlain and Anna Hengehold. From a judgment for plaintiffs, defendants appeal.

Affirmed as to Anna Hengehold, and reversed as to Hawkins &amp Chamberlain.

John E Shepard, of Covington, for appellant Anna Hengehold.

Joseph Goodenough, of Covington, for appellants Hawkins &amp Chamberlain.

Bert J King, of Covington, for appellees.

HOBSON C.

Anna Hengehold owned a house and lot in Covington, which she wished to sell for $9,000; she listed it with Hawkins & Chamberlain, who were real estate brokers in Covington. Chamberlain was the assistant secretary of the Liberty Building & Loan Association, which maintained an office in the same building as Hawkins & Chamberlain. Claud Mathews and Margaret Mathews, his wife, were looking for a house, and came to see Hawkins & Chamberlain, who proposed then to sell them the Hengehold property. They did not have the money to buy the property, and Chamberlain told them that, if they would buy it, he could negotiate a mortgage on it for $6,000 with the Building & Loan Association. Acting upon this assurance of Chamberlain, they entered into the following written contract:

"I, Anna Hengehold of Covington, Kentucky, have this 31st day of July, 1929, bargained and sold to Claude and Margaret Mathews through Hawkins & Chamberlain, Real Estate Brokers, a certain parcel of property, (here follows description) at the agreed price of Nine Thousand ($9,000.) Dollars, to be paid as follows: At least $1500.00 plus an amount of not less than $6,000. obtained on loan in a building association secured by a first mortgage, to be paid in cash; balance evidenced by notes bearing interest at 6% per annum, payable within two years, $600.00 or more of which is to be payable within one year. Said payment of notes to be secured by a mortgage second only to the first mortgage above mentioned.

And I agree to execute and deliver a good and sufficient warranty deed when purchase money is paid by Claude and Margaret Mathews, his wife, or their assigns. ***

We hereby acknowledge receipt of Five Hundred ($500.00) Dollars, to bind the bargain, which is paid to Hawkins & Chamberlain, Real Estate Brokers, until final settlement. Said deposit of $500.00 to be returned if title proves defective.

"[Signed] Anna Hengehold

"We agree to purchase the property above described on the conditions and terms set out.

"[Signed] Claude Mathews

"Margaret Mathews."

After the contract was made and $500 was paid to Hawkins & Chamberlain, the parties undertook to get the building and loan association to furnish the $6,000 on a mortgage on the property. But the building and loan association did not have the money to loan, and, after making various efforts, in vain, to secure such a loan from other associations, the contract could not be carried out, and Mathews and wife brought this suit to recover the $500 which they had paid. By answer and cross-petition Mrs. Hengehold and Hawkins & Chamberlain sought the enforcement of the contract. On final hearing, the judgment was entered for the plaintiffs. The defendants appeal.

The following rules are well established where the parol evidence does not tend to vary or contradict the written contract:

"Contracts must be construed from the standpoint of the parties, and the terms employed must be given effect from that viewpoint." Koppers Co. v. Asher Coal Mining Co., 226 Ky. 496, 11 S.W.2d 114, 115.

A rule of likewise...