Winiarski v. Leon Meyer, Inc., 2220

• Decision Date: 30 June 1954
• Docket Number: No. 2220,2220
• Citation: 106 A.2d 503,82 R.I. 125
• Parties: WINIARSKI v. LEON MEYER, Inc. et al. Eq.
• Court: Rhode Island Supreme Court

Page 503

106 A.2d 503

82 R.I. 125

WINIARSKI v. LEON MEYER, Inc. et al.

Eq. No. 2220.

Supreme Court of Rhode Island.

June 30, 1954.

Albert Lanthier, Central Falls, for complainant.

Higgins & McCabe, Eugene V. Higgins, Providence, for respondent Leon Meyer, Inc.

Crowe & Hetherington, Thomas Hetherington, Pawtucket, for respondent vendee.

BAKER, Justice.

This bill in equity was brought by a prospective buyer against the respondent corporation and its vendee to compel them to convey to complainant certain real estate situated in the city of Pawtucket in this state in pursuance of an alleged agreement between the complainant and the corporation, and to have a deed from such corporation to said vendee declared null and void, and for incidental injunctive relief. After a hearing the amended bill of complaint was denied and dismissed by a justice of the superior court and from the entry of a decree to that effect complainant has duly prosecuted his appeal to this court.

The amended bill alleges among other things that the respondent Leon Meyer, Inc., now Meyer Saddlery Corp., hereinafter referred to as the corporation, is located in New York City; that said corporation owned certain real estate in the city of Pawtucket and desired to sell the same; that it engaged William E. Perry of that city as its exclusive agent for the purpose of securing a purchaser; that on September 1, 1951 complainant agreed to buy such property for the sum of $7,000 and on or about that date paid Perry $100 as a deposit and part payment on the purchase price; that the latter notified the corporation of the sale which was confirmed and approved by it; and that complainant had the title to the property searched.

The bill further alleges that on or about September 4, 1951 the respondent vendee offered Perry $500 to enter into a conspiracy to void such sale with intent to defraud complainant and thereafter, on or about September 12, 1951, with the same intent and purpose, offered Perry $1,500; that being unable to induce the latter to act the said vendee persuaded the corporation to enter into such conspiracy by paying it $1,500 over and above the $7,000 offered by complainant for the property; that said vendee received a deed therefor dated October 6, 1951 which was thereafter recorded in Pawtucket; and that on October 15, 1951 complainant offered to pay the balance of the purchase price agreed upon and is ready, willing and able so to do, but the respondents refuse to perform their part of the agreement. In their answers respondents in substance admit the formal allegations of the amended bill, leave complainant to his proof as to certain others, but deny the material and controversial allegations therein.

Speaking generally, there is little conflict as to the facts appearing in evidence excepting the dates upon which certain communications were made by the broker Perry to the corporation and those made by the respondent vendee to it and to the broker. There was evidence that complainant first learned on August 31, 1951 that the property in question was for sale by seeing thereon Perry's sign to that effect. On the following day, which was Saturday, he consulted with Perry and gave him a deposit of $100, which was retained, on the purchase price. The receipt for that deposit was signed by Perry individually. At that time he had not received an exclusive listing from the corporation and he told complainant: 'I haven't received my exclusive card back yet from Mr. Meyer. Now, I says, until I receive that back, I says, I am not guaranteeing you anything.'

There was evidence that such listing card, which had been prepared by Perry, had previously been sent by him to the corporation. September 3, 1951 was Labor Day and it is agreed that no mail was delivered in Pawtucket on that date. The vice-president of the corporation testified that the card was signed by him in New York City on September 4 and it was to be mailed that day or the following day, as he had been out of the city over the holiday. Perry apparently notified the corporation of complainant's deposit by letter dated September 2, 1951. There was also evidence that a purchase and sale agreement between complainant and the corporation was sent to the latter by Perry about September 14 or 15 for execution but it was never returned to him by the corporation.

It further appeared in evidence that the respondent vendee either on September 1 or early on September 4, 1951, in any event before Perry received the exclusive listing, talked with him about the purchase of the property and first offered him $7,500 and then $8,500 therefor, the latter of which amounts he had offered to the corporation four years earlier. In answer to these offers Perry said to the vendee: 'It's not ready yet.' It appears that the vendee's action in this connection was not communicated to the corporation by Perry. Since he was unable to get any satisfactory response from the latter, within a few days, the vendee communicated with the corporation several times by telegram in regard to buying the property. About September 20, 1951 and also on September 25 or 27 he went to New York City and consulted with an officer of the corporation. On the last occasion he made a deposit of $500 as a binder to purchase the property for $8,500. On October 6, 1951 he again went to New York City...