Moore v. Berry

• Decision Date: 19 April 1955
• Citation: 288 S.W.2d 465,40 Tenn.App. 1
• Parties: P. H. MOORE et ux. v. Thomas H. BERRY et ux. 40 Tenn.App. 1, 288 S.W.2d 465
• Court: Tennessee Court of Appeals

Page 465

288 S.W.2d 465

P. H. MOORE et ux. v. Thomas H. BERRY et ux.

40 Tenn.App. 1, 288 S.W.2d 465

Court of Appeals of Tennessee, Eastern Section.

April 19, 1955 Certiorari Denied by Supreme Court Aug. 2, 1955.

[40 TENNAPP 2] Chas. H. Davis, Knoxville, for appellants.

Hodges & Doughty, Knoxville, for appellees.

HOWARD, Judge.

Referring to the parties as they originally appeared below, this suit for specific performance was filed by the complainants, Mr. and Mrs. P. H. Moore, against the defendants, Thomas H. Berry and wife, Ellen McClung Berry, all parties being residents of Knox County, Tennessee.

The record discloses that Mrs. Berry on June 26, 1953, entered into a written contract listing with the Rader Land & Auction Company, a Knoxville concern, to sell at public auction 81 acres of land owned by her in Fountain City, in the 7th Civil District of Knox County. This property was formerly owned by Mrs. Berry's father, Judge Hugh L. McClung, a highly respected citizen of Knox County. The listing contract signed by Mrs. Berry [40 TENNAPP 3] with the Auction Company contained among other conditions the following provisions:

'* * * sale to be made for not less than 1/2 cash payment, with balance payable in not exceeding 1 and 2, 3 years; deferred payments to be secured by lien on property, and, in the event of a sale, hereunder, said owner agrees to execute proper deed in consummation of such sale, and to make deed on day of sale. And in the event this sale is not confirmed, the party of the first part agrees to pay the party of the second part all expense of sale, except those incident to actual auction sale on day made',

Previous to the auction the land was subdivided into 47 lots, the property involved herein being the 'Residence' or 'Mansion' lot known as 'Belcaro', containing 3.96 acres.

For several weeks prior to the auction which was held on August 1, 1953, at 10 a. m., the sale of the property was widely advertised, and just before the auction started the auctioneer read the written terms and conditions, consisting of 9 items, under which the auction would be held, three of the items affecting the property in question and reading as follows:

'2. Home to be sold one-third cash and balance in equal installments of one, two, three, four and five years, with six percent interest.

'6. Deposit of not less than ten percent must be made to bookkeeper when bid is accepted, and the remainder of the down payment must be made in ten days.

'9. We reserve the right to group any two or more lots or tracts any way we see fit to get the owners[40 TENNAPP 4] the most money. All this property is sold subject to the owners confirmation.'

After the above terms and conditions were announced, the first property put up to be auctioned was the property in question, and after several bids the auctioneer announced that the property had been sold to complainant P. H. Moore, who was the highest bidder, for $30,500. Immediately thereafter Mr. Moore signed an agreement to purchase prepared by the auctioneer's agent and gave said agent Mrs. Moore's check for $3,000, payable to Mrs. Thomas Berry, as a down payment. The agreement to purchase signed by Mr. Moore was on a printed card, the blank spaces of which were filled in with pen by the auctioneer's agent, the card as signed reading as follows:

'I agree to purchase from Mrs. Thomas Berry the following property situated in the 7 Civil District of Knox Tenn., being Lots No. ___ for which I agree to pay the sum of $30,500.00 this being my bid at the sale this day held. When a deed is tendered me I agree to pay the sum of $1/3 10,17, the balance payable in two equal payments due in one and two years, to be secured by lien on said estate.

'This the 1 day of Aug. 1953

'P. H. Moore'

Later in the day the 'Residence' property and Lot No. 14 were grouped and auctioned off together at a bid of $39,500. However, this bid as well as the complainants' was rejected, and the defendants, within 3 days, returned to complainants their check for $3,000, which they refused to accept. Upon complainants' demand the defendants refused to execute a deed for the property, and thereafter complainants filed this suit.

[40 TENNAPP 5] The complainants' bill as amended avers in substance that the property was widely advertised in the newspapers, by printed posters, maps, etc., with 'no reservation or right to confirm or approve' by the owners, the ads specifically stating that the sale would be held 'rain or shine'; that if any conditions or reservations to confirm or reject were announced verbally by the autioneer before the auction started, the same would not be binding on complainants who arrive late and did not hear the announcement; that the complainants' bid of $30,500 was confirmed when the auctioneer's agent accepted complainants' check for $3,000 and the signed purchase contract agreement in which appeared the written signature of Mrs. Thomas Berry, the owner; that complainants are ready and willing to perform their part of the purchase agreement, but that defendants have refused to comply therewith, and complainants prayed for specific performance or in the alternative for a decree for $3,000, or for such reasonable damages as may be justified by the proof.

To the bill the defendants filed a Plea in Bar which the parties as well as the Chancellor subsequently treated as an answer. In the answer the defendants admitted that Mrs. Berry was the owner of the property in question, and that on June 26, 1953, she authorized the Rader Land & Auction Company to offer her property 'at auction', said auction to be held on Saturday, August 1, 1953, at 10 a. m., but it was specifically denied that Mrs. Berry authorized said property 'to be auctioned without reservation.'

The defendants averred that prior to the auction the auctioneer announced to the crowd assembled the terms, conditions and reservations governing the auction, two of the terms, etc., announced being as follows:

[40 TENNAPP 6] 'We reserve the right to group any two or more lots or tracts in any way we see fit to get the owners the most money.

'All this property is sold subject to Owner's Confirmation.'

Defendants further averred that by reason of the foregoing terms, etc., the defendants reserved the right to and did reject the complainants' bid; that under the said terms any...