Moore v. Townsend

• Decision Date: 23 July 1975
• Docket Number: 74--2067 and 74--2068,Nos. 74--1742,74--1743,s. 74--1742
• Citation: 525 F.2d 482
• Parties: Stanley MOORE and Judith Moore, Plaintiffs-Appellees, v. Mary Ryan TOWNSEND and Jane Melnick, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 482

525 F.2d 482

Stanley MOORE and Judith Moore, Plaintiffs-Appellees, v. Mary Ryan TOWNSEND and Jane Melnick, Defendants-Appellants.

Nos. 74--1742, 74--1743, 74--2067 and 74--2068.

United States Court of Appeals,

Seventh Circuit.

Argued Jan. 13, 1975.

Decided April 13, 1975.

Rehearing and Rehearing En Banc

Denied July 23, 1975.

Frank O. Wetmore, II, Alan L. Unikel, Chicago, Ill., for defendants-appellants.

F. Willis Caruso, Robert G. Schwemm, Chicago, Ill., for plaintiffs-appellees.

Before CLARK, Associate Justice, ^* FAIRCHILD, Chief Judge, and SPRECHER, Circuit Judge.

CLARK, Associate Justice.

Stanley and Judith Moore, both of whom are Negroes, brought this fair housing action under the Civil Rights Act of 1968, 42 U.S.C. § 3601 et seq., and the Civil Rights Act of 1866, 42 U.S.C. § 1982, on April 4, 1974. The complaint charged Mary Ryan Townsend, appellant in Nos. 74--1742 and 74--2067, and Jane Melnick, appellant in Nos. 74--1743 and 74--2068, with racial discrimination in connection with their refusal to sell a dwelling house in Chicago, owned by Mrs. Townsend and offered for sale through Mrs. Melnick.

Originally the complaint sought money damages as well as equitable relief, declaratory relief, attorneys' fees, and costs. After a prompt and thorough hearing, the District Court (Marshall, J.) entered a preliminary injunction on April 16, 1974, restraining the sale of the property to anyone other than the Moores pendente lite. Answers were filed and a jury was demanded by Mrs. Melnick. On April 23, 1974, Mrs. Townsend filed a cross claim against Mrs. Melnick and a third-party complaint against Jean Spencer Real Estate Inc. (the sales agent), seeking judgment over against them for any damages she might suffer in the litigation. These issues were severed for separate trial by the Court pursuant to Fed.R.Civ.P. 42(b).

At the trial of the Moores' suit on the merits on June 28, 1974, the Moores withdrew their claim for money damages and specifically waived recovery thereon, leaving only equitable issues and the claim for attorneys' fees. Accordingly, Mrs. Melnick's jury demand was stricken by the court, and the case proceeded to trial. On July 11, 1974, a final judgment was entered in favor of the Moores and against both Mrs. Townsend and Mrs. Melnick, on the basis of a memorandum opinion, which confirmed and supplemented the findings and conclusions filed with regard to the issuance of the temporary injunction on April 16, 1974. The court ordered Mrs. Townsend to 'specifically perform the sale of the subject property of this cause at a price of $77,000.' The appeals in Nos. 74--1742 and 74--1743 attack the finding of discrimination; the appeals in Nos. 74--2067 and 74--2068 attack the award of attorneys' fees of $1,500 and costs of $347 which were awarded to the Moores. We have consolidated the cases and will treat them together.

I.

It appears that Mrs. Townsend owned a five-bedroom home in the Beverly area of Chicago with a three-car garage and a swimming pool, and had listed the property for sale with Jean Spencer Real Estate, Inc. at an asking price of $145,000. Mrs. Melnick, the salesperson with Spencer placed in charge of the sale of the Townsend property, had been in real estate for a number of years as a salesperson of Southside Chicago property. Some 85 percent of her sales were to Negro purchasers.

In March of 1974, Mr. Moore, who had been transferred to Chicago from Washington, D.C., as assistant regional director of the U.S. Census Bureau, contacted the Spencer firm in the course of looking for a new house. The Moores were shown the Townsend house, which they liked. When Mr. Moore told Mrs. Melnick that the asking price was beyond his means, she told him that it had been reduced to $95,000, and suggested that they offer $70,000 because the property was in 'a changing neighborhood'. A written offer was prepared on March 16th.

A day or two later, Mrs. Melnick told the Moores that their offer had been rejected, but stated that Mrs. Townsend had countered with a $80,000 price. A $77,000 price was then offered on a standard form contract drawn up by Mrs. Melnick. A few days later Mrs. Melnick reported that Mrs. Townsend had liked it, save for a contingency clause regarding the sale of the Moores' former house in Silver Spring, Maryland. Mr. Moore replied that he had received a letter from his brother advising him that the closing of the sale of the Silver Spring home was set for April 1st.

On March 25, 1974, Mrs. Melnick called Moore and told him that Mrs. Townsend had signed and accepted their offer. She added that she would leave his copy of the contract at his office and pick up a copy of the letter regarding the sale of his property in Silver Spring. On March 26th, not having heard from Mrs. Melnick, Mr. Moore called her by phone and was assured that 'you have got a good contract, it's signed'. She promised to deliver a copy the next day. On March 27th, Mr. Moore again called Mrs. Melnick and the assurances were repeated.

On March 28, 1974, Mrs. Melnick told Mr. Moore that Mrs. Townsend had changed her mind, that her husband was ill, her daughters had come home, she had decided not to sell, and she had instructed Mrs. Melnick not to give the Moores the contract. On March 31, the Moores went to Mrs. Melnick's office and she repeated that she had the contract and that Mrs. Townsend had signed it, but she refused to give it to the Moores or even let them see it.

Mrs. Melnick then called her lawyer and asked if the contract was binding on Mrs. Townsend, though still in Mrs. Melnick's hands. She was advised that it was binding. In light of that advice, Mr. Moore stated that he could not understand why he could not have the home. At that point, Mrs. Melnick told the Moores that she had received telephone calls from the 'Beverly Area Planning Association', complaining about her showing property in Beverly Hills to blacks. She suggested that the Moores look in the 'Pill Hill' neighborhood, which was 80--90 percent black. The next day, Mr. Moore called for assistance from a fair housing organization, The Leadership Council for Metropolitan Open Communities, which contacted Mrs. Melnick. On April 2nd, she came to the offices of the Council and repeated that Mrs. Townsend had signed the $77,000 contract. When asked to produce the agreement, Mrs. Melnick stated that she had mutilated it by cutting off and destroying Mrs. Townsend's signature. An attempt to obtain Mrs. Townsend's signature on a new contract was unsuccessful and this suit followed.

II.

In No. 74--1742 Mrs. Townsend claims that the district court erred in granting specific performances and ordering conveyance of her house to the Moores because: (1) the finding that there was an executed contract for the sale of the property was not supported by the evidence, (2) the implied finding that such a contract was delivered is contrary to the evidence, and (3) the court erred in 'possibly finding' that an oral contract for the sale of real estate in Illinois existed. We find no merit in any of these contentions.

Race is an impermissible consideration in a real estate transaction, and it need only be established that race played some part in the refusal to deal. Smith v. Sol D. Adler Realty Co., 436 F.2d 344, 349--350 (7th Cir. 1970). As the trial court found, it is undisputed here that Mrs. Melnick negotiated, then broke off with the Moores at least in part on the basis of their...