Harten v. Loeffler, 212 U.S. 397 (1909)

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Harten v. Loeffler

No. 91

Argued January 26, 1909
Decided February 23, 1909
212 U.S. 397

ERROR TO THE COURT OF APPEALS

OF THE DISTRICT OF COLUMBIA

Syllabus

In an action by the vendee for damages, although the amount recovered is less than $5,000, if the vendor not only disputes the judgment but claims more than $5,000 as balance of purchase money, this Court has jurisdiction to review the judgment of the Court of Appeals of the District of Columbia.

Where its meaning is not clear, a contract is to be construed in the light of circumstances surrounding the parties when the contract was made and a practical interpretation given thereto. Lowber v. Bangs, 2 Wall. 728.

"About" is a relative, and frequently ambiguous, term, the precise meaning of which is affected by circumstances, and oral evidence is not inconsistent with, or contradictory of, a written contract which simply identifies property as shown on a diagram annexed thereto, and is admissible to show the intent of the parties in the light of the surrounding circumstances.

Where the vendee sues for breach of a contract to sell real estate and the benefit of the business and goodwill as well, the measure of damages is the differences between the purchase price and the market value at the time of the contract and evidence as to the value of each item is admissible.

A hypothetical question of value of property is not admissible when there is no evidence to support the hypothesis on which it is based.

29 App.D.C. 490 affirmed.

The defendant in error, hereafter called the plaintiff, commenced this action against the plaintiff in error, hereafter called the defendant, in the Supreme Court of the District of Columbia to recover damages for the refusal of the defendant to perform a written agreement made between the plaintiff and the defendant and his wife, by which the defendant agreed to convey certain premises on Brightwood Avenue, or Seventh Street, in the District of Columbia, to the plaintiff for the sum of $12,000.

The defendant denied the alleged agreement, and also pleaded a set-off to recover $20,000 damages against the plaintiff for the plaintiff’s own failure to perform the agreement set up by defendant.

The plaintiff replied, denying the defendant’s averments as to set-off, and the latter joined issue on plaintiff’s replication.

A trial was had before a jury, and terminated in a verdict for the plaintiff for $1,250, with interest on $250 from April 27, 1905, upon which judgment was entered.

Upon appeal to the Court of Appeals of the District, that court affirmed the judgment (29 App.D.C. 490), and the defendant sued out a writ of error from this Court.

The material facts in the case are as follows:

The defendant, on the twenty-seventh of April, 1905, was the owner of a lot or parcel of land on Brightwood Avenue, or Seventh Street, a half mile north of Brightwood in the District of Columbia. On the date named, the parties entered into an agreement, and the defendant and his wife signed the same, as follows:

For and in consideration of the sum of twelve thousand dollars, two hundred and fifty dollars whereof is hereby acknowledged, I hereby agree to sell to Ernest Loeffler the property, goodwill, license, and fixtures, located on Brightwood Avenue near Battle Ground Cemetery, fronting on Brightwood Avenue about sixty feet, with a depth of about two hundred feet, title and transfer of license guaranteed or deposit refunded. I agree to use my best efforts to secure the signers for the transfer of said license, and to give said Loeffler a clear title to all of above property.

To understand more readily the applicability of the evidence, a diagram showing the shape of the lot and the location of the building is given below.

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The principal questions on the trial arose in regard to the admission and exclusion of certain evidence by parol and upon exceptions taken to the charge.

The opinion of the Court of Appeals was delivered by the late Mr. Justice McComas, who made a synopsis of the facts and evidence, which is herewith inserted:

The appellant owned a parcel of land on Brightwood Avenue, or Seventh Street Road, a half mile north of Brightwood, in this District. He there kept a saloon and country tavern in a building erected on a lot triangular in shape, fronting 85 feet on Seventh Street Road. As appears in the diagram, the front line and the south line of the triangle formed a rectangle, and the south line was 224 feet long. The hypothenuse, or north line, was 239 1/2 feet long. The improvements fronted on the Seventh Street Road and comprised a frame building standing fifty-one and a half feet along the road. At the northeast corner was a small lot of ground with a front of thirteen and a half feet, the house line running back at right angles nearly joined the north line, making this lot a triangle. On the south side was a driveway about twenty feet wide. At the south end of the building was a barroom, and adjoining it on the north was a serving room for guests. A hallway came next on the north, and on the north side of the hall was a storeroom for liquors, above which, on the second story, was a ballroom. The remaining upper rooms of the house were used as living rooms for the family of the appellant. Back of the storeroom on the ground floor on the north line of the premises was a kitchen, and in the rear of that, on the same north line, was a billiard room for guests. In the rear of these structures, and all adjoining the north line, were various stables, sheds, and outhouses.

Beginning at the south line of this parcel of land, if one measured sixty feet northward on the front line, the end of the 60-foot line was at a point in the hall doorway near the middle thereof, and only the south forty feet of the building would be included within the sixty feet, while eleven and a half feet of the north end of the building and a small triangular lot before described would be excluded. All the premises were occupied and used in their entirety by the appellant.

From the record, it appears the appellant told Charles D. Hood, a liquor dealer, that he wished to sell his property and business for twelve thousand dollars; that he wished to get out of the neighborhood because he could not do business there, and the protests made it difficult to renew his license. Hood communicated this information to the appellee, who sent his agent to purchase the property. This man introduced himself as a real estate agent to the appellant and asked him what he wanted for the place, and the appellant said he would take twelve thousand dollars for the property, fixtures, and everything excepting pool tables and stock. Later this agent called with the appellee, who came as a prospective purchaser, and the appellant, with knowledge of that, conducted the appellee over the premises, showing him over the whole building, upstairs and downstairs and into the kitchen and billiard room.

Several days later, on April 27, 1905, after the appellee had sold his saloon in Georgetown, he notified the appellant that he would visit him to "make the deal;" and the two parties and this agent met on the premises the same afternoon. The price asked by the appellant was finally agreed to, and it was agreed that Mr. Richard, a wholesale liquor dealer, a friend of both parties, who had helped the appellee to sell his saloon, and had driven out with him, should write the agreement.

During these negotiations, the appellant did not suggest that he did not intend to sell the whole premises, or that he intended to reserve any portion, but said that the stock of liquors and the pool or billiard tables were not included in the sale. Richard wrote the following paper, which was signed by the appellant and his wife.

[It is the agreement above set forth.]

Richard testified when he had written as far as "license and fixtures located on Brightwood Avenue near Battle Ground Cemetery," he turned and asked, "What is the size of this place?" and there followed a discussion between the two Loefflers, Harten, and himself. One of the party suggested it was about sixty feet, and Harten said, "That is about right," and Richard so wrote it. Nothing was said by Harten or by Loeffler to indicate that only a portion of the premises was to be sold, and it was understood that the whole of the premises was covered by the description.

The appellee testified that in this discussion the appellant stated that the lot had about sixty feet front and about two hundred feet in depth; that, when Richard was writing the contract "he asked Mr. Harten how much ground was in this place. We all were guessing, and Mr. Harten said, `Put it down about sixty feet front, and about two hundred feet deep,’ and Mr. Richard said, `All right, we will put it down that way.’" That, when the paper had been prepared, Harten called to Mrs. Harten and said to her, "I want you to sign this contract, I sold the place." Before the contract was prepared, and while they were discussing the price, the appellant said to the appellee, "I will sell everything here."

Andrew Loeffler, the agent, testified that when we came down to describe the place, Harten told him it was described in the license. Harten brought the license. The description in the license is opposite "Battle Ground Cemetery." Richard put that down and said we should describe the property a little plainer; he said, "What is the square number or what is the number of the lot?" Harten said, "There is no number to the lot;" he did not know the number of the square, so he said, "We had better put down the number of feet you have here." Somebody asked me what my idea was, and I said about sixty feet; I looked out of the window to size it up; Mr. Loeffler made a guess, and we all made a guess. Harten said, put it down about sixty feet; we estimated about sixty feet front and about two hundred feet deep.

Peter J. May testified that he met the appellee and his wife at Harten’s place on the day after the sale, and Harten stated that Loeffler had bought him out; that he had sold the whole place -- everything -- ground and all, and was going out of business, and this witness and Mrs. Loeffler were shown through the house by Harten, who then described how she was going to fix up the house, and Harten conducted them into many rooms, including the liquor store room and the ballroom above it. Later, the appellee asked the appellant to indorse the license paper and sign the application for its transfer. The appellee or his agent or attorney frequently repeated this request. Harten always refused to sign at one time saying he did not want family trouble. Finally, when urged by the appellee and his attorney, and being charged with attempting to back out of his agreement, the appellant replied, "I won’t sign a damn thing."

Subsequently the appellee tendered to the appellant the purchase money and a deed of the premises, and, without reading it, the appellant refused to sign, and immediately after offered to the agent, Loeffler, $100 "to get me out of this."