Palmer Bros. v. Havens

• Decision Date: 11 December 1945
• Citation: 193 S.W.2d 91,29 Tenn.App. 8
• Parties: PALMER BROS. et al. v. HAVENS.
• Court: Tennessee Court of Appeals

193 S.W.2d 91

29 Tenn.App. 8

PALMER BROS. et al. v. HAVENS.

Court of Appeals of Tennessee, Western Section.

December 11, 1945

Certiorari Denied by Supreme Court March 13, 1946.

Appeal in Error from Circuit Court, Shelby County; J. P. M. Hammer Judge.

Suit by Mrs. Virginia P. Havens against Palmer Brothers and another to recover the earnest money paid to the Palmer Brothers on a contract for the purchase of a parcel of real estate. From a judgment for the plaintiff, the defendants appeal in error.

Affirmed.

John Robinson, of Memphis, for plaintiffs in error.

J. S Edmondson, of Memphis, for defendant in error.

ANDERSON Presiding Judge.

Referring to the parties as of their status on the record in the other court, the original plaintiff, Mrs. Virginia P. Havens, sued the defendants, Palmer Brothers and J. L. Beauchamp, to recover the earnest money paid to Palmer Brothers on a contract for the purchase of a parcel of real estate in Memphis. The judgment was for the plaintiff and the defendants appealed.

The property was owned by the defendant Beauchamp. He had listed it for sale with the defendants, Palmer Brothers, who are licensed real estate brokers. They negotiated the sale of the property to the plaintiff for a specified sum, reducing the contract to a writing, which was signed by both the plaintiff and Beauchamp and also by Palmer Brothers as agent. A deposit of $200 earnest money was required and made. The contract of sale recited the receipt of this sum and that it was deposited 'as earnest money and in part payment of the purchase price of the following described real estate etc.' There was a provision that if the title was good and the property not paid for as provided for in the agreement, 'this earnest money is to be forfeited to the seller.' It was also provided that 'such forfeiture shall not in no way affect the right of either party to enforce the specific performance of this contract.'

At the time of the trial the property had been sold to other parties.

The theory of the action was that the real estate agents had represented that the property was on a street on which no colored persons lived and that this representation was false justifying a rescission and requiring a return of the earnest money.

The trial judge found against the plaintiff as to the alleged misrepresentation, but it developed in the course of the trial that the transaction had been initiated and consummated on Sunday and this was the basis of his action in giving judgment for the plaintiff.

Code, Section 5253, makes it a misdemeanor to exercise any of the common vocations of life on Sunday. It is conceded that the transaction under review was consummated on Sunday; that the owner of the property, the defendant Beauchamp, was represented therein by Palmer Bros., who were licensed real estate brokers; that in negotiating the contract they were engaged in one of the common vocations of life in violation of the statute. But the contract was not with Palmer Bros. It was with Beauchamp, who, so far as appears, was not engaged in the business of buying and selling real estate. In view of this fact, if it were open for consideration, the question of whether the contract was valid might be a serious one. Amis v. Kyle, 10 Tenn. 31, 24 Am.Dec. 463; Cook v. Carmichael, 3 Tenn.Civ.App. 477, 3 Higgins 477; 1 Page on Contracts, Sec. 455; Moseley v. Vanhooser, 74 Tenn. 286, 40 Am.Rep. 37; City of Knoxville v. Knoxville Water Co., 107 Tenn. 647, 64 S.W. 1075, 61 L.R.A. 888.

But we are relieved of the necessity of passing upon this question because the defendants expressly take the...