Mcconchie v. Realty Assoc.s Inc., 544.
| Decision Date | 22 September 1947 |
| Docket Number | No. 544.,544. |
| Citation | 54 A.2d 862 |
| Parties | McCONCHIE et al. v. REALTY ASSOCIATES, Inc., et al. |
| Court | D.C. Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from the Municipal Court for the District of Columbia, Civil Division.
Action by Eldridge C. McConchie, Jr., and Mary E. McConchie against Realty Associates, Inc., and Charles C. Savage for damages for breach of contract for sale of realty. From a summary judgment in favor of defendants named, plaintiffs appeal.
Reversed.
William B. Richardson, of Washington, D. C., for appellants.
H. Max Ammerman, of Washington, D.C. (Louis Ottenberg, of Washington, D.C., on the brief), for appellees.
Before CAYTON, Chief Judge, and HOOD and CLAGETT, Associate Judges.
Plaintiffs, now appellants, filed a complaint, entitled an action for damages for breach of a contract of sale of real estate, alleging that Herman Kadan, contract owner, and Realty Associates, Inc., by its agent, Charles C. Savage, entered into a written contract to sell certain real estate to plaintiffs; that pursuant to said contract on or about May 14 Kadan executed and delivered to plaintiffs a deed to said property upon plaintiffs paying the cash and executing the deeds of trust required by the contract; that in the contract of sale Kadan, Realty Associates, Inc., and Savage agreed to give possession at time of settlement of the contract and guaranteed possession at the latest by June 25, but had never delivered possession; that Kadan, Realty Associates, Inc., and Savage had agreed to serve a 30-day notice on Troy Easterling, the tenant in possession, to quit and vacate on or before June 25 but had failed to do so; that plaintiffs had served a notice to quit on Easterling but had not been able to obtain possession because of the occupancy of Easterling and the failure of Kadan, Realty Associates, Inc., and Savage to deliver possession as required by the contract. Plaintiffs named Kadan, Realty Associates, Inc., Savage and Easterling as defendants, asked damages of $3,000, and demanded a jury trial.
This appeal concerns only the defendants Realty Associates, Inc., and Savage who filed a joint answer, admitting they singed the contract of sale but alleging that the extent of their liability and interest in and under said contract was evidenced by the contract itself, copy of which was filed as an exhibit to the answer; they denied they agreed to give possession at time of settlement or guaranteed possession as alleged by plaintiffs; and they denied agreeing to serve notice to quit on the tenant.
The copy of the contract referred to in the answer is on a printed form at the top of which appears the name Realty Associates, Inc. At the end of the contract appear the printed words ‘Realty Associates, Inc., Agent By’ followed by the signature of Savage. Beneath this appears the following: ‘We, the undersigned, hereby ratify, accept and agree to the above memorandum of sale and acknowledge it to be our contract this 23 day of March, 1946,’ followed by the signatures of the plaintiffs as purchasers and Kadan as seller. In a space following paragraph 17 of the contract are typewritten several special provisions, one of which is: ‘Will guarantee occupancy, at the latest by June 25, 1946.’ These special provisions were prefaced by the words, ‘By Agreement H. K., CCS.’ These initials are apparently those of Kadan and Savage.
After filing their answer Realty Associates, Inc., and Savage moved for summary judgment on the grounds that there was no genuine issue of fact pertaining to them and that the record failed to disclose liability on their part. The answer was not verified and no affidavit was filed in support of the motion. Plaintiffs filed an affidavit in opposition to the motion in which it was stated that before plaintiffs saw the premises Savage told them they would be able to get possession without any trouble; that plaintiffs were doubtful whether they could obtain possession and Savage wrote in the contract ‘Will guarantee occupancy, at the latest by June 25, 1946’; that relying on Savage's written and oral statements guaranteeing occupancy and possession plaintiffs signed the contract; and that plaintiffs at no time saw...
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