Vallis v. Rimer
| Decision Date | 05 March 1957 |
| Citation | 335 Mass. 528,140 N.E.2d 638 |
| Parties | Charles P. VALLIS et al. v. John RIMBER et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Charles Demakis, Lynn (John J. Jennings, Lynn, with him), for plaintiffs.
Harold Rosenwald, Boston (Hugh D. Rogovin, Boston, with him), for defendants.
Before WILKINS, C. J., and SPALDING, WILLIAMS, WHITTEMORE and CUTTER, JJ.
This is a bill in equity by one Vallis and his wife to obtain reformation of a written agreement for the purchase by them from Rimer, one of the defendants, 1 of a piece of real estate in Marblehead owned by him, by adding to it a provision, reading in part, 'this agreement is subject to approval by the Veterans' Administration * * * and if this agreement is not approved by the Veterans Administration, then all the moneys paid hereunder shall be refunded.' A decree was entered dismissing the bill and the plaintiffs appealed from this decree.
The trial judge found and concluded (1) that there was no evidence to suppot an allegation in the bill that the provision which the plaintiffs seek to add to the written agreement was omitted 'through the fraud of' Rimer; (2) that the plaintiffs had not sustained 'the burden of proving that the written agreement was incorrectly drafted in relation to the return of a deposit through error, mistake' or inadvertence; and (3) 'that, during the discussion preceding the execution of the written agreement, there was no agreement that' the plaintiffs and Rimer, represented by one Harvey, a broker, 'would buy and sell the real estate only if the Veterans' Administration approved the * * * agreement.' The evidence is reported. Questions of fact as well as of law are before us for decision, giving due weight to the findings of the trial judge which will not be reversed unless plainly wrong.
In November, 1954, Rimer was asked by a lady (hereinafter called the broker) who was starting out in the real estate business if she could earn a commission if she sold for him the property here in question, which was then on the amrket. He initially authorized a sale for $36,000, the broker to receive a commission of $1,000. The broker thereupon approached Mrs. Vallis and showed the house to both plaintiffs. After negotiations, oral agreement was reached by Rimer and the plaintiffs, through the broker, for a sale for $31,000, with an immediate deposit of $1,500, which was made on December 1, 1954, and was paid on December 7 by the bank on which it was drawn.
The plaintiffs proposed to purchase the house by means of a G. I. mortgage guaranteed in part by the veterans' administration. To obtain such a mortgage, it was necessary that there be an appraisal of the house by a representative of the veterans' administration at not less than the proposed sale price. See U.S.C. (1952 ed. and Sup. III) Title 38, §§ 694, 694a [38 U.S.C.A. §§ 694, 694a]; Karrell v. United States, 9 Cir., 181 F.2d 981, 983, certiorari denied 340 U.S. 891, 71 S.Ct. 206, 95 L.Ed. 646; Veino v. Bedell, 99 N.H. 274, 275, 109 A.2d 555.
The broker knew of the plans for a G. I. mortgage. She had been told by the plaintiffs that the plaintiffs could not buy the house except with the aid of a G. I. mortgage. She testified that she reported this to Rimer and that Rimer agreed to a sale for $31,000 in this manner and told her to 'get the agreement.' A closing date on February 10, 1955, was arranged which would allow time for completion of a G. I. loan. Rimer was familiar with veterans' administration arrangements, at least in a general way, and was a man of substantial business experience in real estate transactions.
The broker caused a written agreement of purchase and sale to be drawn by her own lawyer (who was representing her, not Rimer). Although it contained everything she asked to have put in it, the agreement did not contain any provision for return of the deposit of $1,500 in the event that the sale was not approved by the veterans' administration. Compare Horlick v. Wright, D.C.Mun.App., 104 A.2d 825, 826. The plaintiffs noticed the absence of such a provision and inquired of the broker about it. Vallis asked the broker 'if he could get his money back if' the veterans' administration loan did not go through and the broker said he could. The plaintiffs thereupon signed the agreement with the request to the broker that Rimer should not cash the deposit check until the G. I. loan was approved. The broker told the plaintiffs she 'could not promise * * * that Rimer would not cash the check, but she could promise that he would get the money back if the G. I. didn't approve.' Rimer and his wife thereafter signed the agreement, on December 10 according to his testimony.
Prior to signing the agreement Rimer and Vallis never met. They communicated through the broker. Rimer denied that the broker's statement with respect to the return of the deposit was communicated to him prior to his signing the agreement on December 10, 1954. The broker, when specifically asked whether she told Rimer that if the veterans' administration 'didn't approve * * * Vallis would want his money back,' replied, In the face of this evidence (which was much more explicit than other testimony by the broker which might tend to show that she had communicated to Rimer the requested condition) the judge plainly was justified in concluding that here was in fact no agreement by Rimer himself that the sale would take place 'only if the Veterans' Administration approved.'
About a month after the agreement was signed, the veterans' administration appraised the property at $28,500, thus preventing a sale at a higher figure, if a G. I. mortgage was to be given. Various efforts were made to persuade Rimer to sell at a lower figure. Vallis negotiated with Rimer directly by telephone. The latter offered other mortgage arrangements which (although some of them appeared to be substantially as favorable as the G. I. terms) were unacceptable to the plaintiffs. They did not go through with the purchase. About a month after the date set for completion of the sale, Rimer sold the property to others for $30,000. 2 Rimer refused to return the deposit to the plaintiffs. He had withdrawn the house from the market upon receipt of the deposit early in December and had taken down a sign which he had put up on the premises. He also incurred carrying charges for the month between February 10, 1955, the date when conveyance was to have been made to the plaintiffs, and the subsequent sale to others.
A real estate broker is normally not a general agent, but is...
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