Waters v. Weintraub, 6 Div. 121

• Citation: 52 So.2d 510,255 Ala. 530
• Decision Date: 10 May 1951
• Docket Number: 6 Div. 121
• Parties: WATERS et al. v. WEINTRAUB.
• Court: Supreme Court of Alabama

Page 510

52 So.2d 510

255 Ala. 530

WATERS et al. v. WEINTRAUB.

6 Div. 121.

Supreme Court of Alabama.

May 10, 1951.

Wm. S. Pritchard, Victor H. Smith and Pritchard & McCall, all of Birmingham, for appellants.

Berkowitz, Fleisher & Miller, Birmingham, for appellees.

STAKELY, Justice.

This is a suit brought by Max Weintraub (appellee) against N. H. Waters and Anna Lois Waters individually and as partners doing business under the firm name of Waters Theater Company (appellants). The complaint consists of five counts. The first two counts are for breach of an alleged contract in writing made between the plaintiff and the defendants. The last three counts are the common counts for money had and received, for money paid and on account respectively. There was verdict and judgment for the plaintiff for $2400.00. On motion for new trial the plaintiff consented to a reduction of the verdict and judgment to $1369.01.

Waters Theater Company by N. H. Waters, designated as sellers and Max Weinbraub, designated as purchaser, executed a written contract whereby in substance (1) the sellers agreed to convey to purchaser certain real estate located at the southeast corner of 3rd Avenue North and 24th Street in Birmingham, Alabama, more particularly described in the contract, subject to the existing mortgage thereon which the purchaser agreed to assume as a part of the purchase price and (2) whereby the purchaser agreed to transfer to sellers 'property located at 1617-2nd Avenue South known as Dunbrik Products Co., said property consisting of all machinery, inventory and equipment used in the manufacture of brick by purchaser located at the above address. Purchaser to transfer to seller lease on property being occupied by Dunbrik Products Co. Also one dump truck and spare parts, etc., one car of cement (just arrived).' The contract contained the following provision: 'Agreement to exchange these properties based on figures given to Mr. J. F. Ford, Jr.' and further provided 'If trade is accepted, the Waters Theater Co. is to take over plant on Monday, April 19 1948. Pro rations are to be made as of that date. All income at plant to be held in escrow until satisfactory title is passed on 3rd Avenue property.'

The contract acknowledged receipt of $1000.00 deposit as earnest money and provided for a cash payment on closing of the trade by purchaser to sellers of the sum of $10417.00. The contract provided that both parties were to pay to W. O. Wood Realty Company as their agent as compensation the sales commission adopted by the Birmingham Real Estate Board.

The contract was executed on April 17, 1948. As provided in the contract two days later on April 19, 1948 the sellers were 'to take over the plant' and did in fact take possession of the same. From that date until May 4th sellers operated the brick plant, purchased supplies, used its inventory, manufactured and sold its products. On May 4, 1948 Waters Theater Co. wrote a letter to Max Weintraub and to W. O. Wood Realty Co., agent for Max Weintraub, cancelling the contract on the ground of alleged misrepresentations claimed to have been made by the appellee. Among other things the letter stated:

'We have heretofore tendered the keys back to you to your property and business, and you are responsible for your property and business.

'We hereby again tender back to you all things of value which belong to you, referred to in said contract. The contract is cancelled insofar as the undersigned is concerned on account of said misrepresentations as herein stated.'

Despite the aforesaid letter to appellee, appellee's attorney advised the appellants in writing of a time and place fixed for the closing of the transaction. At this time the appellee and his counsel were present with certified check and all transfers necessary to consummate the transaction and offered to do so. The appellants did not attend.

Tendencies of evidence show that the appellee pursuant to the contract paid the real estate broker a commission of $500.00. For the examination of the abstract of title to the real estate owned by the appellants and to be conveyed to appellee under the contract, the appellee paid the sum of $50.00 to an attorney. At the time of filing of the suit and the time of the trial appellants had in their possession the sum of $135.00 derived from the operation of the brick plant which had not been returned to the appellee. The appellants admitted that there had been shipped from the brick plant to the Fairfield Theater Company a quantity of brick having a fair market value in the amount of $542.90, the Fairfield Theater Company being a company in which appellant N. H. Waters' son had an interest or was the owner. This amount was not paid by the Fairfield Theater Company.

Tendencies of the evidence showed that the rent for which appellee was liable for the period during which the apellants were in possession of the premises occupied by Dunbrik Products Co. was not paid by them and was in the amount of $100.00. Tendencies of the evidence also show the consumption by appellants of various supplies, materials and other property on hand at the time appellants took possession but not replaced at the time possession was surrendered. Tendencies of the evidence also showed damage or injury to a fence and to machinery in the plant during the time the appellants had possession of Dunbrik Products Co.

Tendencies of evidence showed that a salesman, Edgar Cantrell, of the Wood Realty Company undertook to bring the appellee and N. H. Waters, one of the appellants, together and negotiations were begun several days before the contract sued on was executed. The salesman went with N. H. Waters and his auditor, J. F. Ford, Jr., to the brick plant and discussions with regard to the machinery and equipment, cost of manufacture and amount of business that had been done by the plant and the unfilled orders for the product which were on hand and other similar matters were had between N. H. Waters and J. F. Ford, Jr. on the one hand with the appellee and his brother Joe Weintraub, who was a stockholder and director of Dunbrik Products Co. and supervised the keeping of the books thereof, on the other. Waters left it to his auditor Ford to obtain the information about the business of the concern and executed a contract on what Ford reported to him. In fact, as shown, the contract provided that, 'Agreement to exchange these properties based on figures given to J. F. Ford, Jr.' was placed in the contract on the insistence of Waters.

Tendencies of the evidence further showed that Edgar Cantrell, the real estate salesman employed by W. O. Wood Realty Company, went with N. H. Waters and appellee to the Dunbrik Products Co. and went over the plant and examined it, checked all the equipment and watched the making of bricks. Tendencies of the evidence showed that Max Weintraub told them what the cost per thousand was to make the bricks and what the net profit was. Mr. Ford was not present on this occasion. Two or three days later Cantrell went with Ford and they then checked with Max Weintraub on how many bricks they made per hour, the price on different kinds of bricks and got an analysis of what was put in different kinds of bricks and the full details on the cost of making bricks. Tendencies of the evidence showed that Ford looked at the machinery and asked lots of questions about it and went to the office and examined their records and orders and took figures off the records.

Tendencies of evidence showed misrepresentations made by appellee to the appellants in connection with orders for brick on hand with the Dunbrik Product Co. and in connection with inventories on hand by the company and accounts due the company. There was evidence however tending to show that such misrepresentations were not made.

I. It is earnestly insisted by the appellants that the appellee has no right to recover because the damages, if any, were damages suffered by the Dunbrik Products Company, which was at the time a corporation. The proof tended to show losses suffered by reason of differences between conditions existing when the business and assets of Dunbrik Products Company were turned over to appellants and when they were turned back to appellee on repudiation of the contract by appellants. These differences were in the amount and value of supplies on hand, conditions resulting from injuries to the machinery and plant during the period when the appellants had charge and possession, failure to account...