Wright v. Everett, 4442

• Decision Date: 16 January 1956
• Docket Number: No. 4442,4442
• Parties: W. B. WRIGHT v. HARRIS W. EVERETT AND PATRICIA A. EVERETT. Record
• Court: Virginia Supreme Court

Page 855

90 S.E.2d 855

197 Va. 608

W. B. WRIGHT v. HARRIS W. EVERETT AND PATRICIA A. EVERETT.

Record No. 4442.

Supreme Court of Appeals of Virginia

January 16, 1956.

Miles Spence Bray, Harry L. Ryan, Jr. and Green, Trueax & Smoot, for the plaintiff in error.

Griffin T. Garnett, Jr. and Albert Balavage, for the defendants in error.

JUDGE: HUDGINS

HUDGINS, C.J., delivered the opinion of the court.

Harris W. Everett and Patricia A. Everett, his wife, instituted this action against W. B. Wright, a real estate broker, claiming compensatory and punitive damages for his failure to exercise proper care in the management of their furnished home which they had authorized him to lease. The jury returned a verdict for plaintiffs in the sum of $325.17, compensatory damages, and $3,000.00, punitive damages, upon which the trial court entered judgment. This writ of error was awarded W. B. Wright, the defendant, to review that judgment.

The decisive question presented is whether the evidence is sufficient to sustain a verdict for exemplary or punitive damages.

The evidence from the plaintiffs' point of view may be summarized as follows:

Plaintiffs owned a furnished home in Arlington County, Virginia, that they desired to rent for four months while they were on a business trip to Nassau, Bahamas. On being assured by Leonard R. Honnold, an agent of W. B. Wright, that he always checked 'the credit rating and references' of prospective tenants before leasing property entrusted to his care, they engaged him to lease the property for four months beginning December, 1952. Pursuant to this engagement and through the efforts of Honnold, the home as furnished was leased to Warden C. Stillwell and Joanne Stillwell, his wife, from December 5, 1952, to April 5, 1953, at a rental of $225.00 per month. At the time the Stillwells signed the lease Honnold required them to give him $150.00 as security for the payment of any breakage or damage to the house or furniture during their occupancy. In addition, Honnold agreed that he would have the accounts of all utilities, including water, electricity, gas and telephone, transferred from the names of the owners to the names of the lessees, and to collect the rent, deduct the broker's commissions and deposit the remainder in a local bank to the credit of Harris W. Everett.

While Honnold and Stillwell were inspecting the premises it developed that Stillwell and Everett had attended the same college. They became very friendly and later, before the lease was executed, the plaintiffs invited Stillwell to have dinner with them, at which time Mrs. Everett told Stillwell that they would be glad to lease him the property. This fact was communicated to the agent, who thereupon prepared a lease, and on the night of December 5th took it to the Everetts' home. There he found that the plaintiffs had given their consent for the Stillwells to move and in fact Stillwell was actually moving some of his things into the home while plaintiffs were packing preparatory to leaving for Nassau. During this confusion Stillwell signed the lease and the plaintiffs were willing to sign, but at Honnold's suggestion they permitted him to retain the lease until he could obtain Mrs. Stillwell's signature. This was done and he mailed the lease to Nassau to be executed by plaintiffs.

Honnold, on being assured by Stillwell that he would promptly pay the accounts of all utilities, violated his agreement with plaintiffs and did not have the accounts transferred from the names of plaintiffs to those of the lessees. Consequently, all such bills were charged to plaintiffs, including a telephone bill for $424.95 incurred by the lessees.

On January 24, 1953, Mrs. Everett wrote Honnold that no part of the rent had been paid and suggested that thereafter checks for the rent be sent directly to her. She closed the letter with the statement that she expected to hear from the agent 'on the next mail'. The broker made no reply to this letter, but did continue his efforts to collect the rent from the lessees. The first check given for rent had been returned by the bank on which it was drawn marked 'Insufficient Funds.' The agent made several attempts to see Stillwell about the past due rent, but was informed that he was in Mexico. On January 14, 1953, the lessees gave him another check for two months' rent and past due utility bills. This check was likewise dishonored, although at the repeated request of the lessees it was re-deposited for collection several times. The broker did not inform plaintiffs of his futile attempts to collect the rent until February 10, 1953, on which date he gave an account of his activities in the following letter:

'When we gave possession to Mr. Stillwell, he deposited with us $150.00 in cash and gave us a check for the first month's rental of $225.00. We deposited this check in the bank, but it was returned to us marked 'Insufficient funds'. We could not replace this check until around the middle of January for the reason that Mr. Stillwell travels and is out of the city a great portion of the time. When he did return, he gave us a check for $502.00, which was to pay for two (2) months' rental and certain utility bills. When he gave us this check we returned the check that he had given us originally for the first month's rent. This check was issued payable to W. B. Wright on a California Bank and made by Kyril Ralston.

'We deposited this check and within a reasonable time it was returned to us with a notation 'Refer to Maker'. Mr. Honnold of our Virginia office contacted Mr. Ralston, the maker of the check, who instructed him to re-deposit the check, which we did. We had begun to get worried about this check and when it was deposited the second time we asked for a special report by telegram. When the report came back after depositing it the second time, the notation was 'Refer to Maker' and 'Unauthorized Signature.'

'We contacted Mrs. Stillwell who informed us that her husband was in Mexico City, Mexico, but that Mr. Ralston would take care of the matter. We contacted Mr. Ralston for the third time, who instructed us to again re-deposit the check. However, we demurred very strenuously on depositing this check the third time, as we had become very suspicious of this transaction. In the meanwhile, we received a telegram from Mr. Stillwell in Mexico City, a copy of which we are enclosing, and upon the instructions in the telegram we have again re-deposited this check.

'We do not want to worry you about this transaction but we think it better that you know the facts as they are transpiring. We have also contacted our attorneys for instructions, which we are following, regardless of the instructions from the tenant and Mr. Ralston. Also, we are trying to obtain information about them from the Credit Bureau of Washington, a mercantile agency which has offices all over the country.

'We will keep you informed as to what is taking place.'

It will be noted that the broker in this letter did not inform his principal of the fact that the accounts of utilities had not been transferred from the names of the owners to the names of the lessees.

The plaintiffs did not reply to this letter until March 11, 1953, when Harris W. Everett wrote the broker expressing strong indignation at the failure of the Stillwells to pay the rent and offering to let them stay in the house until April 15, 1953, on the payment of $200.00 extra. He further stated that he did not know how the broker was handling the non-payment of rent, but would like to hear and that his part of all the collections for rent be deposited in the local bank and duplicate deposit slips be sent to him by air mail.

Under date of March 12, 1953, Mrs. Everett wrote the broker that she had received a letter from Mrs. Stillwell stating that she was taking good care of the house, furniture and garden. She thanked the broker for his letter of February 10th informing them of the situation. She authorized the broker to take such steps as he thought best to collect the rents and repeated that plaintiffs needed the money.

On March 18, 1953, a few days after receiving this letter, the broker caused a distress warrant to be issued, but before the sheriff could levy the warrant the Stillwells moved out leaving in the house only a combination radio, phonograph and television set, upon which the distress warrant was levied. However, this article seemed to be of little value. Thereafter, the broker caused all utilities except water to be disconnected.

On April 2, 1953, the broker wrote plaintiffs informing them of his inability to collect the rent and that the Stillwells had vacated the premises but had left the house in 'immaculate condition'. With the letter were enclosed bills for utilities amounting to several hundred dollars.

On April 14, 1953, the Everetts returned to Arlington and found the utilities disconnected. They were unable to spend the night at home as they had expected to do. On the next day, April 15, 1953, they had an interview with W. B. Wright and his agent, Honnold, during which time the Everetts were informed for the first time that the utility accounts had not been transferred to the names of the lessees and that accumulated utility bills totaled $681.41. W. B. Wright offered to pay and did pay a sufficient amount of the electric and gas b...