Tauber v. Jacobson, 5609.

• Decision Date: 03 August 1972
• Docket Number: No. 5609.,5609.
• Citation: 293 A.2d 861
• Parties: Gabriel G. TAUBER and G. G. Tauber Co., Inc., Appellants, v. George M. JACOBSON and Harry C. Racoosin, Appellees.
• Court: D.C. Court of Appeals

293 A.2d 861

Gabriel G. TAUBER and G. G. Tauber Co., Inc., Appellants, v. George M. JACOBSON and Harry C. Racoosin, Appellees.

No. 5609.

District of Columbia Court of Appeals.

Argued September 14, 1971.

Decided August 3, 1972.

Rehearing Denied August 31, 1972.

Joseph G. Dooley, Washington, D. C., for appellants.

A. Fred Freedman, Washington, D. C., with whom William R. Lichtenberg and Joseph Luria, Washington, D. C., were on the brief, for appellees.

Before KERN, NEBEKER, and REILLY, Associate Judges.

REILLY, Associate Judge.

A disagreement among friends over their respective rights to season tickets for the local professional football games culminated in a lawsuit, a trial, and a judgment requiring the purchaser of the tickets, some four in number, to transfer to plaintiffs his option to renew his subscription in future seasons for two of these tickets. This case is here on defendants' appeal.

The evidence upon which the trial judge based his order is not altogether clear, as he made no written findings of fact, although the testimony of the principal witnesses presented certain conflicts. Even the testimony of the two plaintiffs contained certain contradictions. So far as we can gather from the transcript, however, the background of the controversy began in the summer of 1961.

Appellant Gabriel G. Tauber, against whom this suit was brought,¹ and Harry C. Racoosin, together with their wives, had previously attended games with some degree of regularity when the Washington professional football club, popularly known as the Redskins, played at Griffith baseball park. In the summer of 1961, when the District of Columbia stadium was being constructed, the Redskins, having signed a lease committing them to schedule home games at the new facility, undertook through newpapers to promote the sale of season tickets. At that time, Tauber's office was across the street from the business office of the football club. He was acquainted with the ticket manager and other members of the staff. Having read the newspaper stories, he dropped in to see the staff and was advised that the best seats were in the mezzanine section. According to Tauber's uncontroverted testimony, he was urged to take ten or fifteen season tickets² in that area, but decided to purchase only four "figuring that I could use one, myself, and that I could invite other people that I knew." He then reserved four tickets for numbered adjoining seats in a designated mezzanine box, and in payment drew and presented a check for $168 — the full purchase price of all four season tickets — before approaching any of his friends.

From then on, the sequence of events is somewhat clouded by the conflicting recollections of four of the men who subsequently used these tickets in various seasons.³

Tauber testified that when driving the plaintiff Racoosin home that night, he told him of the transaction and suggested that he take one of the tickets. The next day they drove to the then unfinished stadium, where Tauber pointed out the location of the seats. Racoosin agreed to buy one of the tickets and paid Tauber for it. Later Tauber approached two other mutual friends, Jerry Middleman (now deceased) and Robert Stein, a downtown tailor. Each agreed to buy one of the remaining tickets for which he reimbursed Tauber.

In subsequent years, the Redskins adopted a procedure under which prior season ticket-holders were sent invitations in February to renew their rights to the same seats by mailing in a $10 deposit for each place in the early spring and paying the balance before the opening game. It was Tauber's custom to pay the deposit for all when the first notice arrived and then telephone the same trio to ascertain whether they wished tickets for the ensuing season. Each would then reimburse Tauber for his share of the preliminary payment and, when told later in the year that the final balance was due, would make another payment. Under these arrangements the friends occupied the same four seats in succeeding seasons until 1963, when Middleman fell ill and subsequently died. His place was taken by George M. Jacobson, proprietor of a grocery and liquor shop, who entered into the same arrangement. Early in 1969, however, Tauber informed both plaintiffs in separate conversations that he was no longer going to offer them his tickets. On the witness stand, he testified that he had committed himself to sell his tickets to a local bank with which he did business.

Racoosin testified that he and Tauber together selected the seats in the stadium in 1961, that he had the use of two of those tickets, and as he had done before the new stadium was built, continued to take his wife to the games with him for a year or two, and then "assigned" the ticket to Jacobson.⁴ He said that he was obligated to pay for the tickets each year pursuant to an oral agreement with Tauber, that this arrangement had begun when the games were still played at the old location, and that the reason Tauber bought the tickets annually was because of the proximity of his office to the Redskins.⁵ He also testified that after Tauber discontinued the arrangement, he and Jacobson then purchased tickets for the games in 1969 and 1970 from Milton Kronheim (identified by Jacobson as a businessman with whom he had been dealing for 35 years) but that these seats were less satisfactory than those which Tauber had bought.

Jacobson testified that he had known Tauber for 50 years, that they both had apartments in the same building, and that he had been a friend of Racoosin for almost as long a time. He stated that it was the latter who informed him that he had "an extra seat" for the football games which he, in turn, accepted but that his way of obtaining the ticket was to respond in the spring of each year to a telephone call from Tauber with regard to the preliminary deposit and to pay his share, and when subsequently called (also by Tauber), to mail him a check for the balance. Contrary to the recollections of his co-plaintiff, he placed the time of this arrangement as of the opening of the new stadium. In early 1969, Tauber visited him and said he would not get his tickets for that year as he wanted to give them to his bank. He subsequently arranged to get seats from Milton Kronheim — a matter of courtesy to an old customer — but that such seats were much farther from the gridiron than the one previously obtained through Tauber.

On cross-examination, he was asked whether he had any contract with Tauber. He said he had no written contract and when questioned as to a possible oral one, finally answered —

. . . No oral contract, at all, other than the fact that the man had been asking me to do the same thing for a number of years, which I continued to do.

Stein, aged 73, called by defendants, testified that he was one of the group of four who attended the games with Tauber and Racoosin in the new stadium, and that Middleman⁶ was the fourth member at the beginning, and that Jacobson succeeded Middleman after his fatal illness. He said that each year Tauber would inquire as to whether he would like to go, and upon receiving an affirmative answer, would ask him for the deposit. He said that until he dropped out of the group, it was Tauber's custom to pick up his three friends in his own car and drive them to the stadium. When he was asked on cross-examination how he happened to give up his ticket, Stein replied that he "never had a ticket" and went on to explain that in the years he wished to go to the games, Tauber would tell him he had tickets for him.

The only other witness at the trial was a member of the football club's business staff, who testified that after the 1961 season it was the practice of the club to give season ticket-holders the privilege of renewing their subscription to the same seats assigned them the previous year. He said that the practice did not stem from any contract or guarantee offered the ticket-holders, but had developed as a matter of policy.

The trial court adjudged the plaintiffs solely entitled to the season tickets claimed respectively by them, with "all rights incident thereto" [presumably including renewal privileges] beginning with the 1971 season. Although the football club was not party to the suit, the court framed a decree authorizing the Redskin management to transfer upon its records registration of the tickets to appellees. Counsel in oral argument informed this court that such transfer had been made.

As previously noted, the trial court made no findings of fact to resolve the conflicts in testimony — possibly because none of them affected the legal issues, a conclusion at which we have also arrived. From the bench, the court found as a matter of law that a gratuitous agency had been established — "a voluntary relationship created, at the suggestion . . . of the defendant, [appellant here] himself" — which precluded Tauber from acquiring a "title to interest" in these tickets, permitting him to dispose of them as he saw fit.

Before reaching this conclusion, the court pointed out that there was no obligation on the part of Tauber to act as agent for the plaintiffs, that his picking up the tickets each year was for "the sake of convenience," that he could have discontinued the relationship at any time, and if he regarded the tickets as his own personal property, he should have advised plaintiffs of this fact before tickets for choice seats became unavailable.⁷ The court went on to observe that by reason of Tauber's course of conduct, and the plaintiffs' reliance on the annual procurement by him of tickets, they obtained an interest which he had "no right to usurp."

Noting that there was no compensation for the asserted agency, the court rejected appellant's contention that in the absence of any agreement reduced to writing between the parties, plaintiffs' claims were barred by the statute of frauds. On this point, the court found that there was no contract, but "an...