Ruedy v. Twigg

281 F. 418, 52 App. D.C. 58, 1922 U.S. App. LEXIS 2092

• Court: Court of Appeals for the D.C. Circuit
• Decided: June 5, 1922
• Docket: No. 3722
• Status: Published

Opinions

VAN ORSDRL, Associate Justice.

Appellants, plaintiffs below, entered into a contract with defendant, Twigg, contracting under the name of Deeds Manor Orchards, Dimited, on June 23, 1913, under which plaintiffs agreed to sell approximate^ 3,000 acres of land owned by defendant in Virginia. Six hundred acres of the land was then, planted in apple trees, and the remainder of the tract was implanted. It was the policy of the defendant to sell the land in small tracts planted to apple trees.

Plaintiffs were given the exclusive right of sale, and it was agreed, among other things, that the first 50 acres should be sold at not less than $300 per acre, out of which the plaintiffs were to be paid a commission of 25 per cent, out of the first moneys received on each of said sales. When 50 acres were sold the price of the land could be increased by defendant, and when the price was increased so as to net defendant $300 per acre, then the commissions paid plaintiffs were to be increased proportionately^ but not to exceed, on any sales, the amount of 33% per centum. It further provided that, when all the land then planted had been sold, defendant agreed to plant such of the remaining 2,400 acres, more or less, as was practicable, in apple trees, thereby furnishing to plaintiffs additional planted acreage to sell, or -to allow them to sell land subject to planting and guaranteed care for five years.

The title to the property was placed in trust with the Continental Trust Company of Washington, which was to execute deeds for land sold under the agreement. After making the contract, plaintiffs made preparation for the placing of the land upon the market, and had lit-, erature and contracts of sale printed. In pursuance of their employment they sold 35 acres to one Johnson, 25 acres to one St. Julian Marshall, 10 acres to one Mallory, 20 acres to one R. C. Marshall, and 10 acres to one A. S. Carter, all of which sales were made prior to the 1st day of January, 1914. The contracts of sale provided for approval thereof by defendant.

It is alleged that plaintiffs were embarrassed in the sale of the lands by the failure and arbitrary refusal of the defendant to accept the contracts submitted to him by the plaintiffs, though plaintiffs—

“were always, during the time which this contract was in force and effect, ready, able, and willing to perform all of their obligations of any nature whatsoever under it”; but the “defendant has failed and refused to perform his obligations under the said contract, and on or about the 3d day of January, 1914, the defendant notified the plaintiffs that his contract with them was at an end, because of their failure to sell sufficient acreage to make their contract with him a continuing one.” •

As a result of which plaintiffs claimed damages in the sum of $150,-000. Defendant answered, denying liability, and at the termination of the taking of the evidence, the court on motion directed the’ jury to return a verdict in favor of defendant. From the judgment thereon, plaintiffs appealed.

The sole question presented is whether or not the court erred in taking the case from the jury. It is conceded' that the Johnson contract was duly approved by defendant and delivered to the trust company. The contract with Johnson provided for a cash payment of $2,--625. This payment was accepted in the form of a promissory note, for which Johnson subsequently sent his check to the trust company. There was further testimony by one of the plaintiffs that Twigg verbally approved of the making of the contract with St. Julian Marshall; that the terms and conditions of said contract were satisfactory to Twigg. After the contract was made and completed, and turned over to the Continental Trust Company, Twigg refused to indorse his approval thereon.

Considerable correspondence aj)pears in the record, showing that in the latter part of October, 1913, Twigg began to devise ways of avoiding his contract. In a letter dated October 27th, he expressed disappointment at the results attained in the sale of the property and stated that the existing contract—

“is so crude and indefinite that I cannot bring about the results I desire, namely, to sell at least 1,000 to 1,500 acres by the end of 1914.”

It will be observed that the contract had only been in operation a short time, and 14 months remained for operations between the writing of this letter and the end of 1914. Considerable correspondence followed, which did not result in the changing of the contract. It was testified by the plaintiff Jacob Ruedy:

“That he never, in the course of his dealing with this matter, attempted to fix the price without consulting Mr. Twigg. As a matter of fact, in his conversation and discussions with Mr. Twigg about the price, it was understood that no permanent fixed price should be made, as the price might be one thing one month, and as the property was developed and sales made it might be another thing. In the particular cases under consideration, where he made sales beyond the 50 acres, the prices of $350 for which these contracts called were discussed with Mr. Twigg and approved by him. Mr. Twigg agreed to the price of $350 that was made in the Mallory land.”

[1] Unquestionably plaintiffs upon the face of the record are entitled to commission upon the sale of the Johnson land, since the sale contract was accepted by defendant. It was due to defendant’s action and the action of the trust company that Johnson was permitted', after having sent a check for the cash payment which was held over a month by the trust company, to forfeit his contract. As soon as the contract was accepted by defendant, plaintiffs’ right to a commission attached. While the contract required them to sell 100 acres before January 1, 1914, the failure to sell that amount, if such failure had occurred, would not have 'forfeited their right to a commission upon the amount sold. That condition in the contract merely authorized the discontinuance of the contract at that time.

[2] It appears, however, that more than 100 acres were sold prior to January 1, 1914, and there is evidence, as above quoted, that the terms of all the contracts of sale were approved verbally by defendant. He was not in position to arbitrarily refuse to attach a written approval, if before sale was made he had agreed to the terms of the sale, and a sale had been consummated on those terms.

[3] It also follows that, if defendant arbitrarily breached this contract, he would he liable in damages. These, however, are all issues of fact to be determined by the jury, and it was error to refuse to submit them to the jury for its determination.

The judgment, therefore, is reversed, with costs, and the cause is remanded for a new trial.