Wright v. Shortridge

• Decision Date: 01 December 1952
• Docket Number: No. 4001,4001
• Citation: 194 Va. 346,73 S.E.2d 360
• Parties: W. B. WRIGHT v. ARNOLD F. SHORTRIDGE AND LA VERNE E. SHORTRIDGE. Record
• Court: Virginia Supreme Court

Page 360

73 S.E.2d 360

194 Va. 346

W. B. WRIGHT v. ARNOLD F. SHORTRIDGE AND LA VERNE E. SHORTRIDGE.

Record No. 4001.

Supreme Court of Appeals of Virginia

December 1, 1952.

Thomas Moncure and Harry L. Ryan, Jr., for the plaintiff in error.

Edward C. Hall and Ewell G. Moore, Jr., for the defendants in error.

JUDGE: MILLER

MILLER, J., delivered the opinion of the court.

Arnold F. Shortridge and La Verne E. Shortridge, his wife recovered a verdict for $2100, and interest, against W. B. Wright, and from the judgment entered thereon he sought and obtained this writ of error.

The parties will be referred to as plaintiffs and defendant in accordance with the positions occupied by them in the trial court.

By their motion for judgment plaintiffs allege that they entered into a contract on November 6, 1950, with defendant whereby he agreed to build them a home within 150 days from November 29, 1950. They assert that pursuant to that agreement they paid defendant's agents the sum of $2100, but defendant never began work on the house.

In his grounds of defense defendant denied that he entered into any contract with plaintiffs to build a house or received from them the sum of money sued for. Specifically, he asserted that any agreement that plaintiffs may have entered into to build a home was not with him but was with an independent contractor.

There are several assignments of error, but they may be consolidated and stated as follows: Defendant contends that,

(1) The evidence is insufficient to establish that he or any agent on his behalf entered into a contract to build a house for plaintiffs, nor does it prove that he or his agent received the $2100 paid by plaintiffs;

(2) The court erred in refusing to give instructions D and E.

The assignments of error require that some of the definitely proved facts be stated and that certain testimony, from which inferences favorable to plaintiffs' contention may be drawn, be set out in detail.

Defendant maintains an office in Washington, D.C., and is engaged in selling real estate and building houses. He advertises in the classified section of the telephone directory that he will erect homes. Plaintiffs were the owners of a lot in Fairfax county, Virginia, upon which they desired to have a home erected, and they were aware that defendant had built a home for one of their friends. Because of these facts, plaintiff, La Verne E. Shortridge, called his office on November 6, 1950, with the view of engaging him as the builder of their contemplated home. A lady answered this call by saying, 'W. B. Wright's office.' She was told by plaintiff that her purpose in calling was that she 'wanted Mr. Wright to build our house. ' Plaintiff was then connected with one John C. Leonard, Jr., who was in defendant's employ as a real estate salesman, and as one who made contact with parties who desired to build. He talked with plaintiff and made an appointment to call by her home and discuss the matter. Later that day La Verne E. Shortridge talked on the phone again with Leonard. He was then at an office maintained by W. B. Wright at Glebe Road and Fifth Street in Arlington, Virginia, which was 'just around the corner' from where plaintiffs then resided. She told Leonard that she had prepared a rough sketch or plan of her contemplated home, and if it could be erected for $12,500, she desired to have defendant build it. As a result of these conversations Leonard called at plaintiffs' house that afternoon. Plaintiffs then showed him their plans for the house, and he volunteered to take their sketch 'to an architect to see if it could be built at that price. ' At that time Leonard also asked that a payment of $500 be made but as plaintiffs then had only $100 on hand, that sum was paid to Leonard and he delivered to them a receipt which is as follows:

Signed/John C. Leonard, Jr.

For W. B. Wright'

About a week later plaintiffs were advised by Leonard that plans for the house had been completed and were at the architect's office in Washington, D.C., ready for their inspection. He arranged to meet them at that office, and at this meeting the architect, Mr. Huenemoerder, was introduced by him 'as Mr. Wright's architect.' After some discussion between plaintiffs, Leonard, and the architect, a slight change was agreed upon to be made in the plans, and plaintiffs departed.

On November 29, 1950, Leonard called at plaintiffs' home with the redrafted plans. On this occasion he also brought a typewritten contract, with specifications attached, for erection of the house. He was accompanied by Edward F. Avery, whom he introduced to plaintiffs and said that 'Mr. Avery was builder for Mr. Wright.'

The written contract dated November 29, 1950, was an agreement between Arnold F. Shortridge and La Verne E. Shortridge, as owners, with Avery Construction Co., as contractor. In this instrument the contractor agreed to construct for $12,600 (an item of $100 having been added for additional concrete work) the designated residence according to specifications and plans, and to complete the same within 150 days. The owners agreed to pay that sum for construction of the house, of which $2100 was to be paid upon execution of the contract and the balance of $10,500 in instalments as therein specified. This instrument was executed on that date by plaintiffs, and it was also executed by Edward F. Avery for Avery Construction Co. John C. Leonard, Jr., signed the instrument as witness.

On this occasion plaintiff, La Verne E. Shortridge drew her check for $2000 to Avery Construction Co., and delivered it to Edward F. Avery. However, before delivering that check, she asked to whom the payment should be made, and her statement as to why the check was so drawn follows:

'We asked Mr. Wright's agent (meaning John C. Leonard, Jr.) to whom the check should be paid, and he said Mr. Avery. I asked what Mr. Avery's connection with Mr. Wright was, and he said he was his builder.'

Upon being further questioned about the check, she testified, 'We asked Mr. Leonard and he said he (meaning Avery) was the man who was going to buy the materials and so he was the one who should have the check, he said it would make things quicker rather than putting it through Mr. Wright.'

At the trial there was also filed in evidence a receipt dated December 5, 1950, from Avery Construction Co., to J. C. Leonard. It read as follows:

'Received from J. C. Leonard for W. B. Wright the sum of One Hundred and no/100 Dollars ($100.00) covering initial deposit on contract for construction of residence for Mr. and Mrs. A. Shortridge, Sleepy Hollow, Va.'

On November 29, 1950, two, if not more, copies of the agreement of that date were signed but none was left with plaintiffs. After some time had elapsed and no work had been commenced, they tried, but without success, to contact Leonard or Wright on the phone. But by using another name, contact was made at defendant's office with defendant's son, Richard Wright, and then La Verne E. Shortridge, who had called, identified herself and complained about the lack of progress being made toward building the house. She was informed by Richard Wright that her contract, along with two others, had been 'turned over to Mr. Avery for construction.'

After some two or three weeks had elapsed and still nothing having been done toward erection of the house, plaintiffs on December 18, 1950, wrote defendant and threatened to complain to the Better Business Bureau. They did, about that time, complain to the Washington Real Estate Board about the dilatory tactics and their inability to get defendant to proceed with erection of their home. As a result of the letter of December 18, 1950, and the complaint to the Real Estate Board, which agency communicated with defendant, he arranged for a meeting at his office on January 15, 1951, between plaintiffs, the architect, Avery and himself. At that meeting defendant said to those assembled, 'We have got to get this thing straightened out because the Real Estate Board is on my neck. ' He made no disclaimer that Leonard and Avery were or had been acting as his agents in the transaction, but some alterations in the plans were discussed and agreed to. A paper writing incorporating these changes into the architect's plans were then written out by defendant in his handwriting, which paper is designated, 'Changes to be made in Shortridge plan. ' This document was signed by plaintiffs and by Avery for the Avery Construction Co. The architect and defendant, Wright, signed it as witnesses.

At this meeting of January 15, 1951, Mrs. Shortridge said that she addressed her remarks to defendant, and he, in turn, told Mr. Avery what would have to be done. She testified that during this meeting defendant told Avery 'to make the bedrooms larger so we could get twin beds in one of the bedrooms. ' The writing prepared by the defendant at that time discloses that such a change was made in the master bedroom.

On the next day, January 16, 1951, Arnold F. Shortridge wrote to the Washington Real Estate Board to advise that agency of the results of the meeting of the previous day. In that letter he said, 'If construction is carried out by architect and contractor as per revised plans approved by us and Mr. Wright, this matter will be settled to the satisfaction of all parties concerned.'

In a letter of February 14, 1951, written to plaintiffs by defendant, he said, 'Since I last talked with you I have been able to make the necessary loan arrangements with Walker and Dunlop. Will you please contact me upon my return to Washington on Monday, February 19.'

Neither Leonard nor Avery appeared as a witness, but defendant testified that he had not given Leonard authority to enter into any contract on his...