Sanborn v. Wagner, Civ. No. 21040.

• Citation: 354 F. Supp. 291
• Decision Date: 15 February 1973
• Docket Number: Civ. No. 21040.
• Parties: Anne V. SANBORN v. Margaret WAGNER, individually and trading as J. L. Mann and Company; and Joseph L. MANN, individually and trading as J. L. Mann and Company.
• Court: United States District Courts. 4th Circuit. United States District Court (Maryland)

354 F. Supp. 291

Anne V. SANBORN v. Margaret WAGNER, individually and trading as J. L. Mann and Company; and Joseph L. MANN, individually and trading as J. L. Mann and Company.

Civ. No. 21040.

United States District Court, D. Maryland.

February 15, 1973.

John Carroll Byrnes, Robert E. Sharkey, Baltimore, Md., for plaintiff.

Phillip M. Sutley, Robert G. Lembach, Baltimore, Md., for defendants.

HERBERT F. MURRAY, District Judge.

This case is brought under the so-called "anti-blockbusting" provision of the Fair Housing Act of 1968. Section 3604(e) of that Act makes it unlawful,

"for profit, to induce or attempt to induce any person to sell or rent any dwelling by representations regarding the entry or prospective entry into the neighborhood of a person or persons of a particular race, color, religion, or national origin." 42 U.S.C. § 3604(e).

Enforcement of this provision by means of civil actions in appropriate United States district courts has been specifically granted to private persons. 42 U. S.C. § 3612(a). In this action Plaintiff alleges that Defendants violated Section 3604(e) and seeks relief in the form of compensatory damages, punitive damages, attorney's fees, court costs and "relief from any or all obligations, contracts, etc."

Findings of Fact

Early in 1969 the Plaintiff, Anne V. Sanborn, owned and resided in a dwelling at 1632 Winford Road in the City of Baltimore, Maryland. Winford Road is a residential street running in an east-west direction between Loch Raven Boulevard and Perring Parkway in the northeast section of the city. It is clear from the evidence that the Winford Road area had always been primarily, if not exclusively, a white neighborhood. However, by 1969 the racial composition of this neighborhood began to change as Negroes moved into the immediate vicinity of the Plaintiff's home.

The advance of Negroes into this formerly white neighborhood created some concern and apprehension among the white householders. It is evident from the testimony that Plaintiff, a white woman and a widow with a young daughter, to some degree shared these feelings with her white neighbors. Also she had had thoughts of moving because her husband had died, her son had moved away, and she and her daughter did not need as much room. Thus, by early 1969 she harbored what could be characterized as a transient, but as yet, uncrystalized desire to move from her Winford Road home.

The Defendant, Joseph L. Mann, is a licensed real estate broker who does business under the trade name of J. L. Mann and Company. In early 1969, Mr. Mann had been a real estate broker for approximately ten years and through his company employed a number of sales agents who were active in the Winford Road area real estate market. The Defendant, Margaret Wagner, was employed on a part-time basis by Mr. Mann and his company as a real estate sales agent during 1969. Her major functions as a sales agent were to obtain real estate listings and bring buyer and seller together. However, only when she succeeded in her function of bringing buyer and seller together could she look forward to compensation in the form of a sales commission.

Early in the month of January, 1969, Defendant Wagner in her capacity as a real estate sales agent for J. L. Mann and Company, made an unsolicited telephone call to the Plaintiff. What was said in that conversation is disputed, but on the credible evidence the Court finds that Mrs. Wagner made a number of statements to the Plaintiff to the effect that: "blacks are moving in . . . you should sell while you can still get a good price . . . the neighborhood is getting black and would be unsafe to live in . . . ." These comments were volunteered by Mrs. Wagner and were not responsive to any inquiry by Mrs. Sanborn as to the racial change in her neighborhood. It can only be concluded that the purpose of Mrs. Wagner's remarks was to prey on the fears of the Plaintiff and thus induce her to move out of her neighborhood.

Toward the end of January, 1969, Mrs. Wagner brought Mrs. Jonnie Grant, a prospective Negro buyer, to inspect the Plaintiff's home. The Plaintiff willingly permitted this activity to the extent of guiding this prospective buyer on a tour of her home. However, despite this and two subsequent inspection visits by Mrs. Grant, the Plaintiff still had not resolved to sell or even list her home with the Defendants.

On February 21, 1969, Mrs. Wagner, Mrs. Sanborn and two of Mrs. Sanborn's in-laws, Mr. and Mrs. Hugh Simpson, met at the Sanborn home to discuss the possibility of selling the Winford Road property. To this end, Defendant Wagner brought to the meeting a prepared contract of sale for this property. Once again, as part of her remarks regarding the possibility of a sale of the Sanborn home, the Court finds on the credible evidence that Mrs. Wagner stated that "coloreds were moving into the neighborhood . . . she the Plaintiff should sell now because later on she wouldn't get the same price . . . if she remained her daughter would be associating with the `new element' coming into the neighborhood . . . ." Despite the fact that the Plaintiff had not yet made any arrangements for a new home and, according to her testimony, had no idea where she was going to live, she nevertheless signed Mrs. Wagner's contract for the sale of her Winford Road home. As in the prior telephone conversation, the purpose of such racially oriented remarks could only have been to induce the Plaintiff to move out of her neighborhood.

Through the listings available to the Defendants, Mrs. Wagner was able to find a new home for the Plaintiff three weeks later at 4712 Helwig Road in the City of Baltimore. To secure this new residence, the Plaintiff signed a contract of purchase on March 14, 1969, and on March 28 tendered to Mrs. Wagner $300.00 as a deposit toward the purchase price of the Helwig Road property. Here, as in the sale of the Winford Road home, Mrs. Wagner acted on behalf of J. L. Mann and Company as the real estate sales agent for Mrs. Sanborn. Shortly after the purchase of the Helwig Road residence, the Plaintiff changed her mind about moving and refused to comply with the terms of the purchase and sales contracts she had executed.

Conclusions of Law

1. Since this case arises under 42 U. S.C. § 3612(a), a federal question is present and jurisdiction exists under 28 U.S.C. § 1331(a), the jurisdictional amount having been expressly waived by the Congress under the terms of 42 U. S.C. § 3612(a). Venue is proper under 28 U.S.C. § 1391(b) by reason of the fact that both defendants reside in the District of Maryland and the claim arose here.

2. As set forth above, 42 U.S.C. § 3604(e) requires that a Plaintiff prove that Defendants' unlawful inducement or attempted inducement was made for profit, in order for liability to attach. It is therefore necessary to determine what constitutes a profit within the meaning of this statute. A recent decision by this Court clears up this matter.

"The words `for profit' in section 3604(e) mean for the purpose of obtaining financial gain in any form . . . They the words for profit were evidently included in § 3604(e) to distinguish and eliminate from the operation of that subsection statements made in social, political or other contexts, as distinguished from a commercial context, where the person making the representations hopes to obtain some financial gain as a result of the representations." United States v. Mintzes, 304 F.Supp. 1305, 1311-1312 (D.Md.1969) (Thomsen, C. J.).

Although neither the pleadings nor the testimony evidenced the extent of the profit that was made as a result of the two transactions between the Plaintiff and Defendants, the statute does not require such a standard of proof. The testimony does reflect that the Defendants stood to gain six per cent commission on the sale of the Winford Road property. Moreover, it is clear that the relationship between the parties was strictly commercial and in the ordinary course of real estate brokerage business. Since it is equally clear that the Defendants were employed by the Plaintiff for the purposes of the transactions in question, under Maryland law the Defendants were entitled to a broker's commission for services rendered to the Plaintiff. See Maryland Code, Art. 2, § 17 (1956); Weinberg v. Desser, 243 Md. 347, 221 A.2d 66 (1966); Sanders v. Devereux, 231 Md. 224, 189 A.2d 604 (1963); Hogan v. Q. T. Corp., 230 Md. 69, 185 A.2d 491 (1962). Such entitlement to a commission is a profit under § 3604(e) as interpreted by Mintzes, supra.

3. The Court finds that remarks made by the Defendant, Mrs. Wagner, to the Plaintiff in both the phone call of early January, 1969 and the meeting of February 21, 1969 constituted the type of representations proscribed by § 3604(e). Concededly, it can often be a knotty problem for the trier of fact to properly infer unlawful representations under § 3604(e) especially in situations where statements could be interpreted as good faith responses to questions or the statements themselves are carefully couched in innuendo. Grappling with this problem, United States District Judge Edenfield of Georgia concluded that:

"in delineating what Congress means by `representations' in § 3604(e) the court must keep in mind the basic purpose of the sections: to prevent persons from preying on the fears of property owners and inducing panic selling resulting in monetary loss to the sellers and instability in the neighborhoods involved . . . A § 3604(e) `representation', then, would be any acts or words that would be likely to convey to a reasonable man, under the circumstances, the idea that members of a particular race, color, religion or national origin are or may be entering his neighborhood." United States v. Mitchell, 327 F.Supp. 476, 479 (N.D.Ga.1971).

In the instant case, the evidence shows that the Plaintiff was aware of the racial change occurring in her neighborhood and her...