White v. Bott
| Decision Date | 18 June 1931 |
| Citation | 158 S.E. 880 |
| Court | Virginia Supreme Court |
| Parties | WHITE. v. BOTT. |
Circuit Court of City of Norfolk.
Action by M. D. White against Walter M. Bott. Judgment for defendant, and plaintiff brings error.
Reversed.
Argued before PRENTIS, C. J., and CAMPBELL, HOLT, EPES, and HUDGINS, JJ.
Antonio J. Smith and Jas. G. Martin, both of Norfolk, for plaintiff in error.
Page, Page & Page, of Norfolk, for defendant in error.
In this action plaintiff sought to recover from the defendant $3,000 charged to be due to him on account of his services as a real estate agent. His claim grew out of this contract:
There was a verdict and judgment for the defendant. Plaintiff claims that they are contrary to the law and to the evidence. During the negotiations which accompanied the purchase, Mr. W. C. Etheridge represented the plaintiff and took Mr. Bott to see the various properties which he was to accept in part payment for the Westover Terrace Apartments. It is charged that Etheridge on that occasion misrepresented their physical condition, the terms upon which they were rented, and the rent roll. This he denies, and here we have a sharp conflict of evidence. Since the evidence is in sharp conflict it is amply sufficient, if that verdict can be sustained on the issue of fact here submitted and decided, or on any other issue of fact properly submitted.
It was Bott's duty to repudiate this contract when he ascertained that these mis representations had been made to him, and to state his reasons for such a repudiation.
Finch v. Garrett, 109 Va. 114, 63 S. E. 417, 418. See also Wright, Inc., v. Shackleford, 152 Va. 635, 148 S. E. 807, where many authorities to this effect are cited.
In direct examination, Bott said:
All that can be said of this is that Bott stated to Etheridge that he would pay no commissions. Manifestly he could not claim under his contract of purchase and refuse to pay.
That there was at that time no intention on his part to repudiate is made plain by the fact that he afterwards retained counsel to examine these titles. Moreover, Mr. Smith, counsel for plaintiff, talked with Mr. Bott over the 'phone in reply to a suggestion from that gentleman, and then stated to him that they were willing to convey the Thacker property "to anyone he wished us to, that under the contract he was to assume all liens on all the property and that the contract was specific and if we conveyed it to any other person there would be no assumption by him, but if he could fix some way to assume the liens we would be perfectly willing to have another grantee in the deed." This is out of harmony with any purpose to repudiate.
Mr. Bott further testified that Etheridge "guaranteed" the title.
It is interesting to note the character of the defects relied upon, particularly those which it is said appear upon the face of the contract.
These objections in substance are that Mrs. Thacker did not sign the contract of June 25, that Mrs. Bott did not sign it, and that Mr. Thacker did not appear to have had authority from Mr. Carroll to sign for him. Later it was said that legal title to three of these lots was in Mrs. Thacker and not in Mr. Thacker.
The court in its instructions told the jury. "The court instructs the jury that the fact that Mrs. Thacker did not sign the contract is immaterial in this case.''
It also told the jury: "The court instructs the jury that the fact that Mr. Bott's wife had not signed the contract is immaterial in this suit."
These instructions were not objected to, and so in part make up the law of this case.
Judge Crump in C. G. Blake Co. v. Smith, 147 Va. 960, 133 S. E. 685, 691, said:
"The last instruction above transcribed, that drawn by the court, was not objected to by the plaintiff in error, and therefore became the law of the case." Coopersmlth v. Mahoney, 150 Va. 685, 143 S. E. 313; Southern Ry. Co. v. Cohen Weenen & Co., 156 Va. ——, 157 S. E. 563.
Mr. Thacker did have authority to sign for Mr. Carroll as is shown by his deposition, and so these objections are without merit.
When counsel, later, in August, did examine title to these lots he reported the following defects.
It appears that there is a joint driveway seven feet wide between the Westover avenue lot and one which adjoins it. This driveway was for the benefit of these two lots and had not theretofore been regarded as a burden.
In the chain of title to another lot is a deed from Mrs. Ruth Branch Jones and all of her children. Mrs. Jones, who is sixty-one years old, and her children, took under a will in which the testator said: "I give to Ruth Branch Jones, my lot of land, No. 16, block 15, purchased and paid for to the Westover Company as per deed, see recorded, and at her death to all of her children living." On the Thirty-First street lot were two deeds of trust for $250 each. This lot was conveyed to the Methodist Church by Ira T. Holt to be used for church purposes and was afterwards sold by the church under ordinary statutory provisions enacted for the sale of church property.
The alleged defect growing out of the testamentary devise to Mrs. Jones was disposed of by the trial court in this instruction: "The court instructs the jury that under the will in evidence Mrs. Jones took a life interest, and her children living at the death of the testator took a fee simple remainder."
The two $250 trust deed debts had been paid, and that fact counsel for Mr. Bott knew from an indorsement of record, but this indorsement was not in proper form.
The restrictive provisions in the deed from Ira T. Holt, even if we were to concede that they continue to operate, could have been cured by a quitclaim deed, and he did in fact afterwards execute one. The wide use of automobiles has made private garages in many instances highly desirable so that reservations like this joint roadway are now quite common, but we will deal with it as a burden. As such it could, in all probability, have been cleared away, and in any event good faith required that an opportunity to clear it away should have been given.
The character of these defects now relied upon, though known to Mr. Bott, were not disclosed by him to any one unless it be his counsel. Mr. Smith says that he heard of them for the first time three or four days before this case was called to trial in the court below.
Mr. Bott did tell his counsel that he desired to repudiate the contract, and it is certain that this was his final purpose. Afterwards, Mr. Vivian Page, of counsel for Mr. Bott, saw Mr. Smith who then represented the plaintiff. This is, in part, his evidence as to...
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