Merritt v. Wassenich

• Decision Date: 27 February 1892
• Citation: 49 F. 785
• Parties: MERRITT et al. v. WASSENICH.
• Court: U.S. District Court — District of Colorado

49 F. 785

MERRITT et al. v. WASSENICH.

United States Circuit Court, D. Colorado.

February 27, 1892

Benedict & Phelps and J. P. Heisler, for plaintiffs.

Charles J. Hughes, Jr., for defendant.

RINER District Judge.

This is a suit in equity for the specific performance of a contract for the sale of certain real property situated on Fifteenth street, in the city of Denver, which property is described in the bill of complaint as follows: 'Part of lots fifteen and sixteen in block one hundred seven.'

The facts, briefly stated, are as follows: January 26, 1888, L Anfinger & Co., real-estate men at Denver, addressed to the defendant, at Cincinnati, Ohio, the following letter:

'DEAL MADAM: We have some eastern parties here, who are buying Denver real estate, and have been trying to get them to buy your property; but, not knowing what you would sell it for we were unable to give them a price knowing that the property now pays about six per cent. on a little over $30,000, with all the risk of a large depreciation in the next few years, for Fifteenth street has seen its best days. In fact, the property was worth more two years ago than it is to-day, and is falling in value every day. The electric road has proved a failure, and the company has stopped running, and all of their operations that have been going on for the past year, trying to make it successful and have shut down. The tenants of the stores are all kicking, and want a reduction in rent; and we earnestly advise you to sell at the present time, if possible. The people whom we now have on the string will pay between $27,000 and $30,000, which is from $2,000 to $5,000 more than the property is actually worth, and that much more than you can ever get any one to pay. They say they will only pay $27,000 cash, but we think we can induce them to pay something more. You knew Mr. Tesch, the tenant of the saloon, claims that the property is worth more to him than to any one else; still he only offers $25,000. We again advise you that if you can get these people to buy, you ought to let it go. We can loan the money out at 8 and 9 per cent. per annum, secured by first-class Denver real estate, which will give you an income of $200 per month clear, without the trouble, worry, or risk. As it is now, you do not get as much as that, and with the chances of the property depreciating in value. It will never increase, and, as time goes by, it is sure to fall in value. Fifteenth street has had its best days is acknowledged by every one. The town is going the other way. 16th, 17th, and 18th are now the main streets, especially 17th and 18th. If you decide to sell, wire us your very lowest price, (we will get as much more as possible,) for the party will not remain in Denver long enough for you to inform us by mail, and we think we could get more out of them if they are here when your reply comes than by correspondence.

'Yours, very truly,

L. ANFINGER & CO.'

To this letter the defendant replied by telegram on the 20th of January, which telegram is in the following language:

'CINCINNATI, OHIO, 20th.

'To L. Anfinger & Co., 1541 Champa Street: Thirty-two thousand is my lowest figure.

MRS. T. WASSENICH.'

Following this telegram, the defendant wrote to L. Anfinger & Co., her letter being dated on the 20th of January, as follows:

'DEAR SIRS: Your letter of the 16th received, and hardly know what to do. You and Albert and differ so widely in estimate of the property. Albert thinks it worth $35,000, and is positive it will increase in value. As I have the utmost confidence in both, I dont's know whose advice to take, so compromised. Still I should not like to miss this chance, and hope you will bring about a settlement. Some years ago was offered $34,000, before even the house was built. They were also eastern people. Should you effect this sale, trust you will make everything solid for us, so they cannot hold us for taxes or anything else. You will remember, perhaps, I made Mr. Tesch a promise through you to let him have the refusal of it, and he might consider himself unjustly treated should we sell without considering that. It might also benefit us to play them against each other, and no doubt he will appreciate it all the more, seeing some one else desires it. However, leave all that to your better judgment. You might let me know what per cent. you charge, also what other expenses will arise, so that I know exactly what to figure on.

'MRS. T. WASSENICH.'

Following this correspondence, L. Anfinger & Co. entered into negotiations with one Russell, a resident of Denver and a real-estate broker, for the sale of this property, giving him a certain time within which to close the transaction. He sold it to the complainants herein for the sum of $35,000, and was to receive for his services the sum of $2,000, and on the 28th of January, L. Anfinger & Co. wrote to the defendant, at Cincinnati, Ohio, that they had sold the property for $32,000, less commission and taxes of 1887, stating in their letter that they had used every effort to get the parties up to $32,500, but missed, and stated the terms of sale to be $500 cash, to bind the bargain, $9,500 in 30 days, and $22,000 on or before three years, with interest at 8 per cent., secured by trust-deed on the property; stating, also, to her in that letter that their commission would amount to $715. On the same day they telegraphed her that they had sold the property for $32,000, less commission and taxes. To this last letter and telegram the defendant did not reply, and the only communications from her in relation to this transaction were the letter and telegram of January 20th. On the 28th of January, the date of the last communication to Mrs. Wassenich, L. Anfinger & Co. signed a receipt, as follows:

'DENVER, COLO., Jan. 28, 1888.

'Received from Merritt & Grommon, as part payment for the following described real estate, (here follows description,) the entire price to be paid for said real estate $32,000, and is to be paid as follows: $1,000 as above recited; $9000 on or before thirty days from date; and four notes, of $5,500 each, aggregating $22,000, secured by trust-deed on said property. The four notes payable on or before three years from said date, with interest at eight per

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