Lefkowitz v. Silver

• Decision Date: 02 November 1921
• Docket Number: 361.
• Parties: LEFKOWITZ v. SILVER ET AL.
• Court: North Carolina Supreme Court

109 S.E. 56

182 N.C. 339

LEFKOWITZ v. SILVER ET AL.

No. 361.

Supreme Court of North Carolina

November 2, 1921

Appeal from Superior Court, Forsyth County; Webb, Judge.

Action by Abe Lefkowitz against Milton Silver and another. Judgment for plaintiff, and defendants appeal. New trial.

In action to establish a parol trust, whether defendant secretly bought the property for himself and took deed to himself and his mother after making agreement with plaintiff that they should buy the land together for their joint benefit, and each contribute one-half of the purchase money, and while their agent was negotiating for the purchase, held for the jury.

This action, in the nature of a suit in equity, was brought by the plaintiff to set up a parol trust in an undivided one-half of the tract of land described in the pleadings and in order to pass upon the motion of the defendants to nonsuit the plaintiff, it will be advisable to state the issues and the contentions of the parties, which will be done almost in their own language, and at least substantially so. There was evidence, we think, to support the respective claims of the parties. The verdict was as follows:

(1) Did the defendant, M. Silver, verbally agree with the plaintiff that they would purchase and hold jointly the premises described in the complaint at the price of $40,000? Ans. Yes.

(2) Did the plaintiff, Lefkowitz, by any words or act on his part, or failure on his part to comply with the terms of his contract waive or abandon his rights under the contract, if you find there was such a contract? Ans. No.

(3) If so, did the defendant, M. Silver, in violation of that agreement, purchase said premises and take title to himself and to his codefendant? Ans. Yes.

(4) Was the plaintiff ready, able, and willing to pay his part of the purchase price? Ans. Yes.

(5) Did the plaintiff demand of the defendant, M. Silver, that he convey, or cause to be conveyed to him, the one-half undivided interest in said premises? Ans. Yes.

(6) Did the defendant, M. Silver, acquire, and does he now hold title to one-half undivided interest in the premises described in the complaint, as a trustee for plaintiff as alleged in the complaint? Ans. Yes. (The court answered Yes.)

1. Plaintiff contended that the verdict of the jury establishes that the plaintiff and the defendants verbally agreed that they would purchase and hold jointly the premises described in the complaint at the price of $40,000; that the plaintiff did not waive or abandon his rights under that agreement by any words or acts on his part, or by his failure to comply with the terms of the contract; that the defendant, in violation of the agreement, purchased the premises, took title to himself and to his codefendant; that the plaintiff made demand on the defendant to convey to him, in accordance with the original agreement, a one-half undivided interest in the premises; and that the plaintiff was ready, able, and willing at all times to pay his part of the purchase price. Upon the foregoing findings of fact by the jury, the court as a matter of law, by answering the sixth issue, adjudged that the defendant acquired and held title to a one-half undivided interest in the premises described in the complaint as a trustee for plaintiff. In support of the allegations of the complaint, and as a basis of the foregoing findings of fact by the jury, the plaintiff offered evidence showing that the defendant, a resident of High Point, came to the plaintiff's place of business in Winston-Salem, seeking a business location in that city. After discussing the matter generally, and in answer to defendant's inquiry as to whether the plaintiff knew of a piece of property in Winston-Salem that could be bought, the plaintiff told the defendant that he thought the property described in the complaint could be bought at $40,000. As a result of this conversation, the defendant proposed that they buy it to gether--the property belonging to Mr. Harris, of Baltimore. Whereupon, the plaintiff and defendant went to the office of Mr. Fletcher and employed him to negotiate the purchase with Mr. Harris. This visit to Mr. Fletcher's office was on September 18th, and that afternoon Fletcher called in Mr Hurdle, of the Hurdle Loan & Insurance Company, and in the presence of Mr. Hurdle, Mr. Fletcher dictated a letter to Mr Harris, which will be found in the record, and had Mr. Hurdle to sign it. A reply to this letter was received from Mr. Harris in two or three days, which was shown to Fletcher and by him communicated to Lefkowitz. Another letter was written under similar conditions on September 22d, and Harris' reply to that letter was shown to Fletcher. While these negotiations were going on, the defendant, through his brother, who was in Baltimore, opened up direct negotiations with Harris, and on the 22d day of September, 1919, entered into a contract of purchase for the land in behalf of himself and his mother, which contract of purchase was later followed by a deed from Harris. Claiming that under the circumstances the defendant could not, without a breach of confidence and his agreement with the plaintiff, purchase the property for himself, plaintiff brought this suit, seeking to have the defendant declared a trustee to the extent of a one-half undivided interest and a conveyance from the defendant to the plaintiff for that interest in the land. Silver came to Lefkowitz, seeking information as to where he could buy a store in Winston-Salem. Lefkowitz informed him that he knew of such a store, and that he desired to become associated with Silver in his purchase. Upon Silver consenting to this, Lefkowitz disclosed to him the property in question. It was agreed that, if the property could be bought for $40,000, or less, that a joint purchase of it should be made. The parties went to Mr. Fletcher and arranged with him to negotiate with the owner for the property upon the terms just stated. While these negotiations were under way, Silver buys the property for himself. Silver secured the information which enabled him to make the purchase by agreeing with Lefkowitz that he should become a joint owner.

2. The defendants' version of the case was, and they so contend, that the defendant Silver was a resident of High Point; he called on the plaintiff, Lefkowitz, in Winston-Salem the latter part of August, 1919, and asked him if he knew of a store for rent. The plaintiff suggested renting the Winston Clothing Company's building, but the rent the defendant would have had to pay was considered too high. About the first week in September following, the defendant returned to Winston-Salem and again saw the plaintiff; he suggested to plaintiff that the best thing to do would be to buy the Winston Clothing Company's place, but that he could not do so alone, and suggested that they buy it together. Defendant asked plaintiff where they could get information about the building, and plaintiff suggested going to see Mr. J. H. Fletcher. They went together to see Mr. Fletcher, and secured from him the name of the owner, the size of the lot, and of the building, and such other information as Mr. Fletcher could give. Upon leaving Mr. Fletcher's office, defendant asked plaintiff if he meant business, and, if he did, that each would put up $500 to pay cost of negotiating the trade, and they would get some one to go to Baltimore to see if they could buy the property. The plaintiff replied, according to the contention of the defendant, that he was not able to buy the building, and the plaintiff and defendant had no further transactions in regard to the purchase. Two days later, the defendant's brother went to a hospital at Baltimore, and the defendant had him to get in touch with the owner. After several interchanges of messages, terms were agreed to, and on September 22, 1919, the defendant went to Baltimore and bought the building for himself and mother at the price of $40,000; but he concealed the fact from Lefkowitz.

The plaintiff contends, however, that no suggestion was made to him by the defendant to put up any money to negotiate the trade with the owner, and that he did not waive any of his rights to become the purchaser with the plaintiff under the original agreement.

The court charged the jury as follows:

"The first issue submitted for your consideration is this: Did the defendant, M. Silver, verbally agree with the plaintiff that they could purchase and hold jointly the premises described in the complaint at the price of $40,000? How do you find that issue to be? The burden of that issue is on the plaintiff to satisfy you, by the greater weight of the evidence or by the preponderance of the evidence, that such an agreement was made by and between the plaintiff and defendant, and if the plaintiff has satisfied you by the greater weight of the evidence that such an agreement was made by and between the plaintiff and defendant--that is, that the plaintiff and defendant agreed between themselves that they would purchase the property in controversy, that they should be joint owners of it, that each one was to pay half of the purchase price and it was agreed between them that the deed should be made to them as tenants in common, made to both of them--if plaintiff has satisfied you by the greater weight of the evidence that such a contract and agreement was made, though verbally, it would be your duty to answer the first issue 'Yes.' "

Judgment for plaintiff, and defendants appealed.

Carter Dalton, of High Point, Swink & Hutchins and O. O. Efird, all of Winston-Salem, for appellants.

Hastings & Whicker, Holton & Holton, and Manly, Hendren & Womble, all of Winston-Salem, for appellee.

WALKER, J. (after stating the facts as above).

The substance of the plaintiff's...