Poer v. Zagamine

4 Pelt. 345

• Court: Louisiana Court of Appeal
• Decided: July 1, 1920
• Docket: NO. 7954
• Status: Published

Opinion

DlnkolBulel. J.

This litigation arises out of tho following facts; plaintiff, a real estate ordinary oo-partnership, allege, that defendant ia indebted to them in tho full sum of J575.OU, with intaraat and Attorneys foes, for tule, to-witj-

Thut on June 19th. 1S17, they entered into a written oontraot with defendant, whereby she engaged their aorvioes, as real estate agenta, for tho sale of a oextain tract of land, described in the petition, and tint for 'he services they wore to receive the sum of throo per oent aomalaaicn, and taut they had an exclusive agonoy for the sals for a poriod of one year from the date of the agreement.

That on ¡Jay, 18tu. 1918, the defendant sold the property in question for the aura of §19.000.

T.iat in addition to tho foe of three per oent, fox the servioca rendered, they were aleo entitled to 30p Attorneys fees in the event of tiio non-payment of said ooiri.r.ission. That thore claim v/aa plaoed in the liando of an Attorney for oolloction, therefore, they olaira judgment for Attorneys feos in tho sum of §114.00, and for ooim.iission on tho 3ale of tho property in tho urn of §570.00., making a total sum due x>laintiff of §684.00.

Allowing amicable demand in vain thoy prayed for judgment aooordingly.

Annexed to, and made part of the jíotltion ia a oontraot signed by defendant with her mark, and par--tioular attention is oallod to said oontraot in tho provisions printed and partly erased, to-v;it;~

" Yon are autnoriaed to accept a dogosit of not loso than ICp of contract price to bind the salo and deposit same to your uooount until sale ia aonauraatad and in oase sala oannot be completad, you are authorized to return aald deposit*.

Again;- * I agreed to give you the same and exclusive agency for the term ofnix «4»- 13 months from date h.reof, to offer and sell said property".

" ily failure to notify you in writing during the terra of thia contract to discontinue same, shall operate as a renewal thereof, and extend said oontrdot to an additional six- 13 months on the same terras and conditions.*

Defendant, in her answer, admits that she entered into the oontraot referred to, but the term of said employment was for six months from the date thereof. Further admits, plaintiffs employment, and as now appears from said oontraot annexed, for the terra of 13 months, but avers, that at the time, the oontraot was made and consented to it was for a terra of six months, and as she at the time understood was so written in the said contract; that she signed her X mark with the full understanding and belelf Uiat the term of plaintiffs employment, as written in the dooument, was limited to six months, and it now appears that the word six written in tho oontraot had been blurrod up, thereby leaving the twelve as printed standing as the terra of the oontraot.

That id if the oontraot was at the tiras as now stated in the petition, she made her mark to it in error, and with the full understanding and beleif that the term of plaintiffs employment stated therein was six and not twelve months as alleged.

That she is illiterate, unable to read, writo, or sign hor nomo} that sha Is quita old and feeble, and that oho made hor X mart for signoturo to the oontrsiot for plaintiffs employment for a terra of six months only! that the flrat agreed to employ them for three months, but through the porslstanoy of said pin lntl i'f 3, she was lnduoed to consent to a term of oix months for their employment, and that oho signed said a on t mot undor the firm belief end convlatlon that the oontraot so rooited, and that ahe never consented or agreed to their employment for a term of twelve months as alleged by plaintiffs.

She admits further the sale of said property by hor on Hay 19, 1918, long after the term of alx months given end presented by her to plaintiffs had expired.

That a few days before December 19, 1917, the expiration of the six months given plaintiffs to find a puroh-"i3er for her undfer her agreement^ pi-.lntlffe applied to her for extension of the term of the oontraot to lnolude the ensuing six months, whloh she refused to do, for the re1 son th'-t plaintiff had shown no activo o’fort or diligence to find any prospeottve purohnsor of the property and further that plslntlffs had apparently done nothing to find a purchaser} that they did not even visit the property or oall upon her In refor-enoa to any sale until they applied to hor just prior to Deoomber 19, 1917, to extend the torn of s."ld oontraot.

Th t ahe, after request of plaintiffs for extension employed J. L, Onorato, another real estate agent for alx months agreeing to pay him a ooirjr.lsslon of five per oant on the amount of the price for the sale to a purchaser to be prooured by him. That said Onorato soon after December, 1917, proayrod a purahaser, arranged for the sale to Mr. A. D. DensIgor end that she paid the five per cent oommlsslon to Mr. Onorato for his servíaos and that after the 19 of Deoember, 1917, the expiration of the six months ten of their oontraot as oonaented to by her plaintiffs did not take any stepe whatever to find a purOh&scr nor did they to her knowledge ever elalm that they were employed by her during that period to find purohasers for the property in question.

rfh«t she had no Idea or knowledge that plaint If fa claimed after Deoember 19, 1917, the duid oontraot to be enforced with her; that they nevor called on her after that date about said oontraot nor did they ever make any offer to secure a purohaaer for her but on the oontrary remained dormant and Inaotlve In referenoe to the sole of her property from and after Deoember 19, 1917, whloh w&s the expiration of their employment as agent by her and that she was in total ignóranos that plaintiffs claimed any employment by her.

She denies further that ahs was to havs paid twsnty per cent attorney's fee# and finally prays for Judgment in her favor.

One of the plaintiffs. Hr. Poor, snore that the oontraot was In his own handwriting nnd made on the promises of the defendant and that thslx thore were eeveral witnesses preeent who ae suoh witnesses signed in the presence of both plaintiffs and defendant. He further testifies that the entire document, ae It now appears, was filled out at the same time, on the premises, with pen end Ink furnished witnesses by the owner of the property and that the entire oontraot was read aloud and the only question that arose was the one of commissions to be paid witness' firm, the said firm demanding five per oent and finally agreeing to three per oent and that there was sons dlsousslon to the term of the oontraot but that he lnsleted on the twelve months time because the property wee lend lying In the outskirts of the City and It woe finally agreed upon and put in the oontraot as there stated and that he made the usual efforts to sell this property offering It in the usual and ouetomary way.

C. Ii. Solx»* testified substantially that he was a member of plaintiffs firm, that he was acquainted with the defendant, that he was present when the oontraot was made and signed, that he witnessed the signatures to the oontraot, that the oontraot was for twelve months and that he refused to have anything to do with the property exoept If he oould get the signature for twelye months, he heard the oontraot read and it was read loudly and dlotlnotlyj dtseyieg he denies that there was anything said by the defendant fixing the time at three months and finally agreeing to sign at six months, that hie firm would not undertake to attempt to sell this prop» erty se agents for the owner unless they got twelve months time to do so in.

Mr». Tallo, witness for the defendant, testified substantially that ehe well knew plaintiffs' firm and ehe remembered that at about June 10, 1917 when witness vs living on Tulas# Avenue and Carrollton Avenue and defendant lived downtown, one of the plaintiffs Ur.

8elxae opportune! witness to indues the defendant to grant a oontraot to plaintiffs' oompuny for the sale of defendant's property and she Introduced Ur. Soixas to her aunt, the defendant, and"he offered to give me a present of one hundred dollars to buy a dress if 1 oould lnduoe my aunt to sign a oontraot employing plain» tiffs' firm to sell her property. Uy aunt positively declined giving plaintiffs' firm an agenoy to sell the property In question longer than throe months and she lnduoed her aunt to give plaintiffs six months time to get a sale for the property and that her aunt positively and emphatically declined to extend the the time to twelve months, although frequently proniv-d to do no." She further testified that in Deoeraber» 1917, Ur. Sextas came to see her"in trying to get my aunt to extend the oontraot an! he then subsequently made me an additional offer of a present of one hundred dollars if I oould get my aunt to sign the oontraot for twelve montha, whiah I refused to aooept or to bob my aunt at all on the subject.*

Walter Smell testified substantially that *Hr. Solxs.3 spoko to me over the phone and asked me to speak to Mrs. Fallo, .ihloh I did and I hoard Mrs. Fallo tell Ur. Soixna that her aunt would not extend the oontraot one singla doy over the six months whioh hod then expired.*

Mr. Peter 0. Maurer also testified oubst ntially that *Mr. Selxae repeatedly requested of Mrs. Fallo to got the defendant, her aunt, to extend the terra of the oontraot from six to twelve montha whioh was refused moot positively by Mrs. Fallo.*

The next witness, A. F. Zimmerman testified that ■he woo pre 'ent when tho oontraot was entered into and signed and he hoard all the negotiations between plaintiffs and the defendant and positively swears that the first term of tho oontraot was for throe months and subsequently the defendant oonsented to the six months term, but positively assured them that under no olrourautanoeo would she give plaintiffs any longer time to dispose of her property, than six months and ho never heard twelve montha mentioned at all] that he heard the oontraot read and listened to it and it was read for *6* months and he repeated /denleeuiluc* the *6* months to the defendant, because she oould not read or write and taking in his hand whilst on the witness stand he demonstrated, 'you see right here is the *6*4 He never heard twelve and oould not ha mistaken! he wanted to get a oopy of the oontraot and plaintiffs told him It was not necessary that they never furnish OOpleB."

Mies Catharine Za.trama swesrs positively that *she Is the defendant In this oaee end th.'-t Mr. Seixas together with her nleoe, Mrs. Fallo, oame to see her In referenoe to getting a oontraot to sell her piece of property and that she wanted to give them the oontraot but for only throe months and finally through persuasion(at page 34 of her testimony) /(I give it for 0 months'.

Q. Did you give It to them for twelve months?

A. Ho sir¡ no air,

Q. What did you say about twelve months.

A. Ho alr| Mr. Zimmerman who was present told me that the oontraot read for six months and they read it loudly, for six months,

She further testified that she never agreed to extend the time; that the oontraot expired the 19th day of Beoombor, 1917 and she subsequently gave the oontraot to Mr. Onorato and after the expiration of the plaintiffs oontraot, they oalled upon her In December begging for furthor time and *1 told them that the 1 had gave ray property for sole to Mr. Onorato.' 1 put my mark as I oan nails neither read nor write firmly under the belief that the oontraot was for only, six months. *

Mrs. A, F. Zimmerman was present when the oontraot was read end signed;*1 heard It read aloud, the term was read as six months! the oontraot was read by Mr. Peer.*

The testimony of defendant gives the entire olroum-stanoes of this transaction, oloarly, foroeably, and In our opinion truthfully, and It is as she alleges m her answer, to the effeot, that desiring to sell the property in question she employed plaintiffs aa her agent#

All of the testimony in this ease without referring to the testimony of eaoh witness apeoifioally prove# beyond the shadow of a doubt that the defendant, Kütilx wanting to sell her property was persuaded through the efforts of her nieoe and others possibly to piaos same in the hand# of plaintiff for «ale.

At first it was her earnest determination not to permit any agent to have her property in charge for more than three months but was finally oonvinoed that that was not time enough and under the oirouostanoee she extended the tin# from three to six months but from the witnesses' information the defendant positively refused to extend the time to twelve months and that when she signed the oontraot whioh wae read in a loud voice it was read to her "for 6 months" and under tito firm belief that this was the duration of the oontraot with the plaintiffs she made her mark for she could neither read nor writs and this testimony of hers is oonflrms* kiss by every witness produced exoept plaintiffs themselves,

Under these oiroumetanoei there MX oan be no doubt that the termination of the oontraot had long sinoe expired before she gave another oontraot to Ur. Onoro.tr who finally sold the property for Slneteen Thousand Dollars to Ur. Danslger and for whioh sho paid Ur. Onorato his commissions, five per oent of the sale.

The Judge of the Court segsmxMxmxaKM aquo heard end saw all the witnesses in this oaee and he has given us his written reasons for his judgment and which we now adopt me our own In addition to that wo have heretofore written.

•the defendant an Illiterate and aaed peraon agreed to give the plalntlffe an exoluatve agency for elx monthe to Mil a certain piece of property belonging to her. there la no doubt In ay alnd that thle waa the epeolflo agrément between all the partlea and that defendant apeóla!, ly eo understood, then thle agency was established by proper written authority there was no ohange of Intention to Ilia. It the agency to a period of six months, but the written authority to sell contained a written stipulation, that the period would be extended a further period of six months unless the defendant by written notloe to plaintiffs Informed plaintiffs to the contrary.*

•this was not the contract contemplated, and looks peculiar in view of the foot that defendant was illiterate, unable to write and unable to read the document.*

■During this letter period of six months, the defendant herself wlth^the said aid or sgenoy of plaintiffs sold the property In question, and this suit Is to rsoover the fee of plaintiffs as real estate agente based on the unknown (to her) pretended stipulations.*

•This is an error, and looks like a trlok to entrap by a written contract different from that whloh woe consented to.*

•She le not liable beyond her ooneent. Suit dismissed.*

for tho reaeona herein assigned, It Is ordersd, adjudged sad deoreed, that the judgment of the lower Court, he and the sane le hereby affirmed with ooete of both Courts,

Judgment Affirmed.