Norner v. Holt
| Decision Date | 26 April 1948 |
| Docket Number | Record No. 3314. |
| Citation | 187 Va. 715 |
| Parties | W. A. HORNER v. MILES T. HOLT. |
| Court | Virginia Supreme Court |
1. AGENCY — Authorization of Agent to Effect Sales of Land with Residences To Be Erected Thereon — Case at Bar. — In the instant case, an action for breach of contract, defendant advertised lots and houses for sale, the advertising containing his name as developer and that of an agent. The agent deposited all moneys derived from the sales to a special account in defendant's name. The contract under which plaintiff bought a lot and which contained an agreement to erect a house thereon was signed by the agent of defendant.
Held: That the evidence was sufficient to establish that defendant authorized the agent to effect the sales of lots with residences to be erected thereon and to receive payments therefor, and if such authority had not been expressly given defendant had, over a period of time, with knowledge of what was being done, so fully acquiesced therein as to in fact authorize those sales to be made and contracts to be executed in his behalf.
2. FRAUDS, STATUTE OF — Sufficiency of Memoranda — Purpose for Which Given — Case at Bar. — In the instant case, an action for breach of contract, defendant advertised lots and houses for sale, the advertising containing his name as developer and that of an agent. The agent deposited all moneys derived from the sales to a special account in defendant's name. The contract under which plaintiff bought a lot and which contained an agreement to erect a house thereon was signed by the agent of defendant. Defendant contended that the signature made by his agent, though actually upon a copy of the contract held by plaintiff, was merely for the purpose of receipting money paid.
Held: That the signature of the agent met the provisions of the statute of frauds and whether he signed it with the thought of executing the instrument or receipting for money was immaterial.
3. FRAUDS, STATUTE OF — Memorandum — Purpose for Which Prepared. — The purpose with which a memorandum is prepared is immaterial, and it will suffice although it was not intended to evidence the contract or to comply with the statute of frauds. If there is a memorandum, otherwise sufficient, it is not necessary that it be signed by the party to be charged with the intent to comply with the statute of frauds. His intention in this respect is immaterial.
4. APPEAL AND ERROR — Necessity for Objections — Rule 22 of the Supreme Court of Appeals — Case at Bar. — In the instant case, an action for breach of contract, defendant contended that there was no sufficient identification of plans and specifications for the erection of a house as to make them a part of the contract. There was no objection made on this point until after the verdict.
Held: That since timely objection to the introduction of the evidence was not made as required by Rule 22 of the Supreme Court of Appeals, such objection would not be entertained on appeal.
5. VENDOR AND PURCHASER — Failure of Performance Through No Fault of Vendor — Measure of Damages. — When the vendor has acted in good faith and believed at the time of the execution of the contract that he had marketable title and could then comply and the breach is due to no wilful neglect or refusal, self-imposed inability, fraud or collusion, but to circumstances beyond the control of the vendor, such as a defect in the title unknown to the vendor, then the vendee is limited to recovery of what has been paid on the contract, with interest thereon, and any special damages incurred in reliance on and furtherance of the contract. However, under these circumstances he cannot recover the enhanced value of the land between the date of the contract and its breach — for the loss of his bargain.
6. VENDOR AND PURCHASER — Breach by Vendor of Contract to Erect House — Measure of Damages — Case at Bar. — In the instant case, an action for breach of contract, a vendor of a lot failed to erect a house on a lot for the purchaser as required by the contract. The vendor contended that the damages should be limited to the sum paid by the purchaser with interest. The evidence proved that subsequent to the execution of the contract the cost of building materially increased. Noncompliance on the part of the vendor was deliberate and intentional in order to avoid the increase in the cost of materials and labor.
Held: That the damages recoverable by the purchaser were not limited to the amount he had paid with interest.
Error to a judgment of the Law and Equity Court of the city of Richmond, Part II. Hon. Haskins Hobson, judge presiding.
The opinion states the case.
George E. Allen and William Old, for the plaintiff in error.
Denny, Valentine & Davenport and R. Westwood Winfree, for the defendant in error.
This action was instituted by Miles T. Holt, hereinafter called plaintiff, against W. A. Horner and Thomas G. Burch, for damages for alleged breach of contract. The first trial held on November 20, 1946, resulted in a mistrial. During the second trial on the 19th and 20th of February, 1947, the cause was nonsuited as to the defendant Burch. A verdict of $1,200 was returned against W. A. Horner, hereinafter referred to as defendant, and judgment entered thereon.
There are eleven assignments of error. To be better understood, they may be consolidated and set forth as follows: Defendant contends that, —
1. He never became a party to the alleged written contract by executing it personally or by agent, nor did he by his conduct acquiesce in or ratify the same.
2. The plans and specifications mentioned in the contract are not sufficiently identified as a part thereof and cannot be incorporated therein by parol testimony.
3. If such contract was entered into between the parties and breached by the defendant, the measure of damages is the sum paid thereon, with interest, and as that was returned by tender into court about a month before this trial, plaintiff can recover no other damages.
In 1945, defendant purchased a tract of land in Chesterfield county. To dispose of this property advantageously, he laid out streets and divided and platted it into lots. He named the subdivision "Chesterfield Court" and selected Thomas G. Burch as his exclusive broker, or agent, to handle the property. To further the development and sales, Burch erected thereon a sign board on which was prominently written, "See Thomas G. Burch, Agent for W. A. Horner." It was still upon the property November 20, 1946, when the first trial of this case began. On two or more days in January, 1946, and on several days in February, 1946, the following advertisement appeared in a Richmond newspaper under the heading, "Houses for Sale":
On February 17, 1946, there appeared in the same newspaper a display advertisement beginning with this sentence: "THIS is a description of the houses we are building in Chesterfield Court for veterans." It concluded in bold type as follows: "W. A. Horner, owner and builder, Thomas G. Burch, broker agent." There is testimony from Burch that defendant asked a day or so after this last mentioned advertisement appeared that no more advertisements be put "in with his name."
A special bank account was set up in the name of "Chesterfield Court, W. A. Horner." Burch was authorized and directed to deposit all money received from sales of lots — or lots and houses — in this account. During January, February and March, 1946, twenty-five deposits were made therein by Burch. They represented payments made on sales of lots, and on applications or contracts identical to the one sued on by plaintiff. Defendant was the only one allowed to check on this account, and in these three months, he drew fifty-five checks. The average balance in this account over this period of time was approximately $5,000. The defendant was familiar with the number and amount of deposits made and other details for he or his wife secured monthly statements from the bank from January, 1946, to June, 1946, both inclusive.
During the late winter of 1945 and early 1946, defendant undertook the construction of several houses on the lots in this subdivision. He supplied his agent, Burch, with a set of plans and specifications of the houses he proposed to build. The first contract for sale of a lot and house to be erected thereon was negotiated by Burch on December 27, 1945. It was identical in form with that entered into with plaintiff, except defendant actually signed the first contract. Thereafter Burch and W. Smith Williams, Jr., a salesman in his office, continued to secure these written applications or contracts for sale of lots and houses thereon from prospective purchasers. These and the contracts for sale of vacant lots were kept in folders in a file in Burch's office. They were available to defendant for inspection at any time and were examined or looked over by him about twice a week from February 1, 1946, through April of that year. In February, 1946, the defendant was specifically informed by his agent, Burch, that he, Burch, had secured about thirty contracts for sale of lots with houses to be constructed thereon. In April, defendant informed Burch to take no more contracts like these. Over a period of a few months, actually thirty-three applications or contracts, including plaintiff's, were negotiated by Burch and his salesman, Williams, and signed by one or the other of them as was plaintiff's. Nine houses were built upon lots in this subdivision and disposed of to the parties who had signed such writings.
The defendant contends that he did not erect the...
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