Keene v. Lowenthal , 83 Miss. 204 ( 1903 )

Calhoon, J.,

delivered the opinion of the court.

This is a proceeding in chancery by Lowenthal for specific performance of an alleged contract of sale of real estate with Mrs. Keene. By amended bill Eeld and his wife are made parties to a controversy whether Mrs. Keene shall be compelled to convey to Lowenthal or to Mrs. Eeld. Lowenthal claims that there was a prior valid contract to convey to him. Eeld asserts that there was no such binding contract, and that, if there was, it could not affect him or his wife, and that the conveyance should be to Ms wife. The question we decide is whether Low-enthal could compel specific performance if Eeld had never appeared upon the scene. Mrs. Keene was an aged lady, resident in Virginia, but owned a house and half a square of land in the city of Vicksburg, Miss. This property was occupied at the commencement of these proceedings, and had been for ten years before, by Mr. Eeld and his family as her tenants. The tenancy seems to have been quite satisfactory to Mrs. Keene, the rent being always promptly paid. Mr. Paxton was a real estate agent living in Vicksburg, where also Mr. Lowenthal resided. The first movement on the placid surface of the situation is a letter from Mr. Paxton to Mrs. Keene, of date September 22, 1902, saying that he could sell the property for $4,500 cash, and asking prompt answer. Sbe answered September 25th, declining, and saying ber lowest cash price was $5,500. On September 30tb be writes ber in reply that “my client” bad examined tbe residence, and found it “in very bad repair, and will cost at least $1,000 to fix upthat $5,500 would be reasonable but for tbe necessity of repairs, but, considering tbis, be offers $4,700. On October 6tb sbe answers, declining, and says sbe “could.not possibly take less than $5,200 for tbe place,” and “I would bave to know wbo desires to purchase tbe place,” and tbe amount of Paxton’s commissions. Tbis ends tbe correspondence on tbis branch of it, and it appears from tbe testimony that Paxton’s letters bad reference to a man named Hall. The matter then slept for a month, when Lowenthal came to Paxton, wanting to buy the property. Therefore, • on November 6th Paxton wrote Mrs. Keene that be bad “interested another party in tbe property,” wbo offered $5,000 in cash for it; that be thought it a good price; and says (the italics being ours), “I advise that you take it, as the property will soon be vacated, Mr. Peld having bought tbe old Methodist parsonage on Grove street, and anyone else renting the house, will want it put in thorough repair before they move in, which will cost several hundred dollars;” and be puts bis “fee” at $100 On November ,15tb Mrs. Keene answers tbis letter of tbe 6th saying (italics ours) : “I am willing to take $5,000 cash for my place, but I must know more about it, toho it is that wishes to purchase the place, and when he will want to lake possession, as I will bave to give notice to Mr. Peld. !Also I bave a good deal of furniture that would have to be removed. I am willing to give you $100 if you make tbe sale.” On November the 18th Mr. Paxton replies, giving ber tbe information that Meyer Lowenthal was tbe party making tbe offer; that be would allow 60 days to remove the furniture; would want nominal possession at once, but would allow Mr. Peld to occupy “until he was ready to move into tbe parsonage which he has recently bought. To prevent his backing out, I bave required him to make a deposit of $25, which I enclose herewith, same to be credited on purchase money as soon as deed is signed. Deed will be sent you as soon as title is examined, the $25 to be returned if the title is not good. You will of course have to pay the taxes as they are now dueThe “deposit” referred to is a check by a bank at Vicksburg on a New York bank, for $25, payable to the order of Mrs. Keene, which was never cashed, and bears the date of the letter, November 18th. On that same day Paxton gave Lowenthal a receipt for the $25 “in part payment” of the purchase price, and reciting that “the balance of the purchase price, $4,975, to be paid after examination of title by attorney for Lowenthal and the- delivery of a deed conveying a clear and unincumbered title by me to the said Lowenthal.” This receipt is signed simply, “O. B. Pax-ton, Agt.,” and could not bind Mrg. Keene, as it was not authorized by her, and she was not informed of its execution. This is conceded. But, aside from this, Mrs. Keene answered that letter of November 18th on November 22d, telling Paxton that she coud not sell to give possession until January 1st, and that she would “have to give Peld notice,” and did not care to dispose of the property until the first of the year. Manifestly, Mrs. Keene was not bound by any contract up to that time. The next thing appearing is a letter from Paxton to Mrs. Keene of date November 25th, inclosing a deed to Lowenthal, which he asks her to sign, acknowledge, and send to a Vicksburg bank, with instructions to it to deliver to Lowenthal on the payment of $5,000, out of which the bank should pay a $1,000 mortgage and interest to Mrs. Gilland, and the $25 check, and Mr. Paxton’s fee of $100. The letter then calls- attention to a provision in the deed he incloses that she should have the rents to January 1st. It then states that “Mr. Lowenthal consents to your giving Peld notice.” This does not appear in the deed, which is a warranty deed, to take effect at once, subject simply to Mrs. Keene’s right to collect rents. Prom the date of that letter, November 25th, 1902, there is a profound silence until December 13th, when Paxton writes, asking Mrs. Keene as a special favor to him to sign and return the deed, so he can get his commissions. .She answers on December lYth that personal letter of Mr. Paxton about his fee, saying that as yet she had not heard the amount of her taxes ; that Mr. Peld had written her that he had not bought the parsonage, and did not seem to care to make any change; and proceeds thus: “Mrs. Gilland has to be paid $1,000 and interest for six months and the taxes have also to be paid. Mr. Feld has to have thirty day’s notice, unless Mr. Lowenthal wants to retain him as a tenant. As soon as I receive notice from the bank that the money is there waiting for me I will sign deed, and then yon will get your money by the first of January.” Unless Mrs. Keene is bound by this letter, it is plain that she is nowhere bound to Lowenthal. It was in answer to the letter of Paxton above referred to of December 13th, which it is well to set out in full. It is as follows: “I would ask as a special favor, which means nothing to you, that you sign and return the deed sent you on Nov. 25th. Christmas is approaching and I have a place where I can put my fee where it will add very much to the pleasure of several people. Awaiting a reply, I am,” etc. We think the matter of these two letters has reference to a subject purely personal to Mr. Paxton. It has no concern with any agency of Paxton for either Lowenthal or Mrs. Keene, and Lowenthal can base no right whatever on these letters. Now, when Mrs. Keene wrote that letter of December llth to Paxton in answer to his personal request, we next find a letter of date December 20th, from the bank to Mrs. Keene, informing her that the $5,000 were in the bank to be paid for the deed which had been forwarded to her for signature “some time since.” This' Mrs. Keene never answered. The next development is on December 24th, when Mrs. Keene writes Paxton: “You should not have written me that Mr. Feld had bought the Methodist parsonage, as of course thinking .that I would lose my tenant made me agree to sell. Mr. Feld had been 'a tenant for so long, I did not care to compel him to give up the house. I have decided not to sign the deed, but will send you. tbe $100 so you will not be tbe loser. If tbis is satisfactory wire me at once and I will send you a money order.” Undoubtedly, Mr. Paxton, not with any purpose or intent to do so, bad so far misrepresented tbe facts as to induce ber to think sbe would lose ber tenant, whereas Feld bought tbe parsonage as an investment, and bad no purpose to vacate bis bolding and occupy it. Mr. Paxton’s answer of date December 27th expresses bis satisfaction in ber promise to send tbe $100, .and explains that when be wrote tbe agreement to buy tbe parsonage was closed, though no deed bad passed; that then, on question as to size of tbe lot, tbe trade was about to fail, when, afterwards, tbe trade was closed; and be again says, “You will certainly lose Mr. Feld as a tenant as soon as be can get into tbe parsonage.” There is no answer to tbis letter. On January 5, 1903, be again writes ber, saying tbe transfer of tbe parsonage was complete, and saying, “Tbe minister moved out and tbe Felds were given possession on tbe first of January.” On January 16th be again writes ber, answering a letter of bers of January 8th, which has been lost, but agreed to be of no importance to tbe case, saying Feld bad paid him tbe $100, that Lowenthal did not know of ber sale to Feld, and was asking him every day or two if be bad beard, and that be each time told him tbe deed bad not been returned. On January 20th be writes ber that be bad returned the Lowenthal deed and $25 check, but they were refused to be accepted, and legal steps would be taken by Lowen-thal.. Before sbe got tbis, sbe wrote on tbe same day — January 20th — complaining that be bad accepted tbe $100 “without making arrangements with Mr. Lowenthal about releasing me from tbe sale of tbe property.” Tbis reference to tbe matter as a “sale” is a mere opinion (if that) after the fact, and could not bind Mrs. Keene.

On tbe case stated tbe decree below is reversed, and decree here dismissing tbe original and amended bills, with costs of tbis court and tbe court below on appellee.

Reversed.

SUGGESTION OE ERROR.

Brunini v. Hirsh, for appellee, after the delivery of the foregoing opinion, filed a suggestion of error in this ease, reviewing the correspondence between Mr. Paxton and Mrs. Keene. They say: “The court misconceived the facts in the case. The facts are Peld, on January 20th, 1903, when the original bill was filed, had only paid $100 on account of the purchase money, and has not paid the balance, and never has received a deed to the property. If these are the facts, neither he nor his wife are subsequent purchasers. 23 Am. & Eng. Enc. of Law, p. 572. Lowenthal filed his amended bill, and this was notice to Mr. and Mrs. Eeld of the contract under which he claims. Eeld and wife therefore had notice before they completed the sale by payment and conveyance, as they have not paid the balance or received a deed to this date. We shall now proceed to examine the other question in the case: ‘Was there a binding contract between Mrs. Keene and Lowenthal ?’ .We say there was.” Counsel here enter into a lengthy discussion of the correspondence between Paxton and Mrs. Keene, contending that Mrs. Keene’s letter of December 17, 1902, which is as follows: “Your letter of December 13th received. Would have answered sooner, but have been waiting to hear from Mr. Kelley in regard to my taxes. As yet have not heard from him the amount. Mr. Eeld wrote me that he had not bought the Methodist parsonage, and did not seem to care to make any change. Mrs. G-illand has to be paid $1,000 and interest for six months, and the taxes have also to be paid. Mr. Eeld is to have thirty day’s notice, unless Mr. Lowenthal wants to retain him for a tenant. As soon as I receive notice from the bank that the money is there waiting for me, I will sign the deed, and then you will get your money by the first of January. Mr. Eeld will owe me for December rent” —in reply to Paxton’s letter to her December 13, 1902, creates a binding contract. They say further: “Mrs. Keene had not replied to Mr. Paxton’s letter of November 25, 1902. Her letter of December 17th was also a reply to that letter. Does not the language, 'Would have answered sooner, but have been waiting/ taken in connection with, the facts that she had not made reply to the November 25th letter, that she had not returned the $25 check, and the other contents of the December 17th letter show beyond question that the reason why Mrs. Keene did not reply earlier to the November 25th letter was because she had not determined to sell or not to sell, because she was waiting to hear from Mr. Kelly in regard to her taxes before she would determine ? The contents of the December 17th letter throws some light upon the construction to be placed upon this point. She answers, not the letter of December 13th, but the letter of November 25th. The fact is irresistible that the letter of December 17th was in reply to the November 25th letter in largest part, and to the December 13th letter in smallest part. If we are correct in this conclusion, the next step is the question as to whether or not the letter of December 17th, taken in connection with the previous correspondence, and with the fact that the $1,000 deposited by Lowenthal in the American National Bank as directed by Mrs. Keene, makes a complete contract. We deem it necessary to call the court’s attention to that part of the decision about the misrepresentation of Mr. Paxton that Mrs. Keene would lose Peld as a tenant. Let us concede that the letter of December 17th completed the contract between Mrs. Keene and Lowenthal. What is there in Paxton’s letters .on this subject? We first find mention of it in a letter dated November 6th: 'This, I think, is a good price, and if you will allow me to I would advise that you take it, as the property will soon be vacant, Mr. Peld having bought the old Methodist parsonage on Grove street.’ And in his letter of November 18th he says: 'Lowenthal will want nominal possession at once, but would allow Peld to stay until he was ready to move into the parsonage, which he has recently bought.’ This is all Mr. Paxton ever wrote on the subject prior to the letter of December 17th. He writes subsequently to this letter about it, but it is with the view of satisfying Mrs. Keene that he had told the truth as far as he understood. If it be true that the letter of December 17th completed the contract, then the representation made by Paxton at this date cannot affect it. We maintain that when Mrs. Keene wrote the letter of December 17th she was in possession of these facts from Peld himself. Feld did not buy the Mtehodist parsonage, and, moreover, did not care to make a change. This is shown by the letter itself.”

OalhooN, L,

delivered the opinion of the court in response to the suggestion of error.

We thank counsel for calling our attention to an inadvertence in the last clause in the original opinion in this case. That clause is this: “When the deed came for delivery to Feld on paying the balance of the purchase money, he did not pay until Pax-ton assured both him and his attorney that there was no written agreement to sell between Mrs. Keene and Lowenthal, or any one else.” This might be misleading, inasmuch as the fact is that Feld never did pay the balance of the purchase money, being prevented by this suit, and all that he ever did pay was $100 to Paxton. Our opinion stands notwithstanding this. Really, the court decided the case on the sole question whether Lowenthal could compel specific performance, regardless of the transaction with F.eld; and we decided in the negative, and adhere to that decision, and we shall modify the opinion so as to show this, and nothing more. In fact, the decree ordered in the opinion shows that that, and that only, was decided, and we need not have continued in the opinion to say anything whatever'in reference to Mrs. Keene’s transaction with Feld. We have examined with much care the suggestion of error, the argument in support of which is presented with great force, but fail to be convinced.

Suggestion of error overruled.