Ochs v. Weil

• Citation: 142 F.2d 758,79 US App. DC 84
• Decision Date: 15 May 1944
• Docket Number: No. 8633.,8633.
• Parties: OCHS et al. v. WEIL.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

79 US App. DC 84, 142 F.2d 758 (1944)

OCHS et al. v. WEIL.

No. 8633.

United States Court of Appeals District of Columbia.

Argued April 5, 1944.

Decided May 15, 1944.

Mr. Mark P. Friedlander, of Washington, D. C., for appellant.

Mr. George C. Gertman, of Washington, D. C., for appellee.

Before GRONER, C. J., and MILLER and ARNOLD, JJ.

GRONER, C.J.

This is a suit for specific performance of a contract for the sale of real estate. The District Court, on motion of defendant (appellee), dismissed the complaint because of "failure to state a claim upon which relief can be granted."¹ The case stated is this:

Some time prior to June 4, 1943, the defendant, Dr. Weil, employed Lawrence D. Engel, Inc., a local real estate dealer, to sell for him the property located at 3147 M Street, Northwest, in the City of Washington. Engel almost immediately obtained from Sam Ochs and Jack Small, of Washington (appellants), an offer to purchase the property at $24,500 in cash, and at once (June 3, 1943) telegraphed Dr. Weil at his Chicago address:

"Have cash offer $24500 M Street property. Advise immediately if accepted."

The next day, June 4, 1943, Dr. Weil responded as follows:

"Accept M Street offer. Ask for one thousand deposit."

Upon receipt of this telegram Engel accepted $1,000 from the purchasers, and Engel and the purchasers signed on an agent's form, in general use in the District of Columbia, a writing as follows:

"LAWRENCE D. ENGEL, INC. REAL ESTATE, LOANS, INSURANCE 709 EYE ST., N. W.

"Washington, D. C. June 5, 1943

"RECEIVED OF Sam Ochs and Jack Small a deposit of One thousand dollars ($1,000.), to be applied as part payment of the purchase of lot ______, square ______, improved by premises No. 3147 M St. N. W. Washington, District of Columbia, at the price of Twenty-four thousand, five hundred dollars ($24,500.), on the following terms, to wit: $ Cash in cash (of which amount the above deposit has been paid), and purchaser ______ Deed of Trust on property for the sum of $ _____ bearing interest at ______ per cent and due ____________ and purchaser to give a second Deed of Trust for $ _____ payable in one note with interest at the rate of six per cent per annum, until paid; said principal and interest payable in monthly installments of $ _____ on or before a set day in each and every month after date until paid, each installment when so paid to be applied, first, to the payment of the interest on the amount of principal remaining unpaid, and the balance thereof credited to the principal.

"Property sold as a good record title or deposit to be returned and sale declared off. Examination of title and conveyancing and revenue stamps at the cost of purchaser; provided however, that if upon examination the title should be found defective and not a good record title and such defect or imperfection is not removed by the vendor within the time herein specified, then the cost of said examination shall be paid by the vendor; however, in no event is the agent to be held liable for loss or damage by reason of title proving defective.

"Taxes, interest, rents and insurance to be adjusted by calculation to date of transfer. Taxes and assessments whether levied or not, for special improvements already made, to be paid by vendor.

"Purchaser is required and agrees to make full settlement in accordance with the above terms of sale within when title is clear days from this date. If purchaser fails to make full settlement within the time herein specified, deposit will be forfeited; it being agreed that one-half of the amount of said forfeited deposit shall be paid LAWRENCE D. ENGEL, INC., as compensation for his services. In the event of forfeiture of deposit, the purchaser is not relieved from obligation to comply with the terms of sale. Vendor to execute the usual special warranty deed. Seller agrees to pay agent a commission of 5 per cent on amounts to $5,000 and 3 per cent on all sums above that amount when sale is closed.

"No guarantees, repairs, alterations, or improvements will be made by sellers of this property unless agreed to in writing and made part of this receipt, and no employee has the power to change or alter the terms of this contract.

"Signed in triplicate. Deposit accepted subject to approval of owner.

"LAWRENCE D. ENGEL, INC. "By M. E. MUDD (SEAL) "Agent for Seller "JACK SMALL "SAM OCHS Purchasers."

The printed form used by the parties was filled in at the time of execution by the insertion of (1), the names of the purchasers, (2), the amount and receipt of the deposit, (3), the designation and description of the property, (4), the price, (5), the terms and (6), the date when the transaction was to be closed by delivery of deed and payment of purchase price. The printed portions having relation to transactions involving deferred payments and not applicable to the transaction in hand were not crossed out, but the terms which the parties then intended should apply are perfectly clear. Engel mailed the paper to Dr. Weil, who never signed it or returned it, and declined to carry out the sale. Appellants then and now represent themselves as ready, willing and able to comply with the agreement.

Enough has been said, we think, to show that the single question for decision is whether the agreement to sell the M Street property was valid under the applicable provision of the Statute of Frauds.²

The trial court, as we have seen, answered this question in the negative, and counsel for appellee insists this is correct for the following reasons:

1. The telegrams do not empower the broker to bind Dr. Weil in any form or respect.

2. The broker understood the limitation on his authority by sending the deposit receipt to Dr. Weil for his approval and signature.

3. The general authority to a broker to sell does not include authority to make or sign a binding agreement,...