Zis v. Herman

• Decision Date: 28 September 1944
• Docket Number: No. 209.,209.
• Citation: 39 A.2d 65
• Parties: ZIS et al. v. HERMAN et al.
• Court: D.C. Court of Appeals

39 A.2d 65

ZIS et al.

v.HERMAN et al.

No. 209.

Municipal Court of Appeals for the District of Columbia.

Sept. 28, 1944.

Appeal from the Municipal Court for the District of Columbia, Civil Division.

Action by M. Herman and Gussie Herman, in their own right and to the use of J. B. Mallos, against William Zis and Louis Zis to recover damages for breach of real estate contract. Judgment for plaintiffs, and defendants appeal.

Affirmed.

Herbert R. Grossman, of Washington, D. C., for appellants.

John R. Walker, of Washington, D. C., for appellees.

Before RICHARDSON, Chief Judge, and CAYTON and HOOD, Associate Judges.

HOOD, Associate Judge.

Plaintiffs below claimed that they entered into a written contract for the sale of real estate to defendants for $20,000; that by such contract defendants agreed to make a deposit of $1,000 as part payment, which deposit could be forfeited in the event of defendants' default; that defendants gave a check for $1,000, representing said deposit, but thereafter stopped payment on the check and refused to comply with the contract. Plaintiffs asked damages of $1,000.

Defendants denied making the contract, alleging they had signed a written offer to purchase but had withdrawn such offer prior to its acceptance by plaintiffs; and further alleged that the offer was conditioned upon the buildings on the real estate being susceptible of being raised one or two additional stories in height and that the buildings could not be so raised.

The trial court, sitting without a jury, found that defendants' offer was not withdrawn prior to acceptance and that there had been no representation that the buildings could be raised in height. The court, nevertheless, also found that an additional story could be added to the buildings ‘assuming approprite safeguards and precautions were taken.’ A finding in plaintiffs' favor was made and judgment entered accordingly.

Defendants have appealed and state that the issues involve the question whether or not there was a contract between the parties. We shall consider the points raised in the order presented in appellants' brief.

Under Point 1, appellants contend that the judgment is contrary to the evidence, contrary to the weight of the evidence, plainly wrong, and without evidence to support it. Whether the offer was withdrawn prior to acceptance and whether the offer was conditioned on the availability of the buildings being raised in height were questions of fact. On these two questions there was directly conflicting evidence, and though appellants earnestly argue that the testimony offered by appellees was wholly unreliable and failed to establish their claim by a preponderance of the evidence, we cannot pass upon these questions. We have repeatedly held that this court cannot weigh evidence or pass upon the credibility of witnesses or override the trial court's findings where there is substantial evidence to support them. See Yellow Cab Co. v. Sutton, D.C.Mun.App., 37 A.2d 655, and cases there cited.

Under Point 2, appellants argue that the judgment is contrary to law, but here again their argument is confined to a consideration of the evidence and the claim that the weight of the evidence is in their favor. We cannot reweigh the evidence.

Under Point 3, it is argued that the court was in error in refusing to grant a directed verdict for appellants at the close of all the evidence. The ground for this argument is that appellees failed to prove a contract by a preponderance of the evidence and failed to maintain the burden of proof. The findings of the trial court are conclusive on these matters.

Under Point 4, it is argued that a new trial should have been granted because the findings of the trial court were plainly wrong, contrary to the evidence and to the weight of the evidence. For reasons already stated we cannot review this question.

Under Point 5, it is argued that the trial court denied appellants the opportunity to argue the case on its merits before the court made its findings of fact and conclusions of law. Appellants say that when all the evidence was in there was argument on a motion for a directed verdict but no argument on the merits of the case, that the argument was confined to the question as to which party had the burden of proof as to the existence of the contract. This statement, however, is not borne out by the record. The record shows that the appellants argued that appellees had failed to maintain the burden of proof to establish the existence of a valid contract between the parties and that appellees had failed to prove a case by a preponderance of the evidence. The record does not show what points were developed in the course of the argument but it is not apparent to us that such an argument would not be an argument on the merits of the case. The trial court understood it to be a final argument on the merits and took the case under advisement and after briefs were filed by both parties rendered its findings of fact and...