Zlotnick v. Crisp

185 F.2d 502, 87 U.S. App. D.C. 339, 1950 U.S. App. LEXIS 3319

• Court: Court of Appeals for the D.C. Circuit
• Decided: October 23, 1950
• Docket: 10443
• Status: Published

Opinions

EDGERTON, Circuit Judge.

In August 1948 Broadmoor Co-operative Apartments,' Inc., hereafter called Broad-moor, bought the Broadmoor Apartments building. Appellant Zlotnick had occupied apartment 102 for over 20 years. It and the adjoining apartment 100 originally had one bedroom each, but in 1931 the bedroom of 100 was detached and added to 102.

Broadmoor set out to restore the building largely to its original condition, sell the apartments to individuals, and operate on what is called a “cooperative” basis. Floor plans and a prospectus were prepared describing the apartments and the proposed alterations. They showed that the bedroom which had been added to 102 was to be returned to 100, so that each would have one bedroom. Copies of the floor plans were posted on the wall of the office where sales were made and on the desk where contracts were signed. There was testimony that copies were handed to each purchaser or prospective purchaser. Copies of the prospectus were put in the mailboxes of tenants.

Apartments 100 and 102, as one-bedroom' apartments, were priced at $13,000. Other one-bedroom apartments ranged from $10,-000 to $14,000. Apartments with two bedrooms ranged from $17,500 to $20,000. These prices were advertised in the prospectus.

• On September 24, 1948 Broadmoor sold apartment 100 to appellee Crisp for $13,-000. Both Crisp and Broadmoor understood that one bedroom was to be detached from 102 and restored to 100. Zlotnick refused to surrender this bedroom. Crisp. filed a complaint against Zlotnick, for possession of the room, in the Landlord and Tenant Branch of the Municipal Court. Zlotnick answered that he owned the room and that the Municipal Court had no jurisdiction because the issue involved title to real estate. The case was transferred to the District Court and Zlotnick made Broad-moor a third-party defendant.

Zlotnick claims that apartment 102 as it stood, containing the room in dispute, had been sold to him and that the subsequent sale of the room to Crisp was therefore invalid. It is not disputed that on August 25, 1948 Zlotnick signed a deposit agreement which described the apartment only as “apartment 102.”¹ He testified he had not seen the prospectus and that he did not know a bedroom was to be detached. But the witness Flynn, Broadmoor’s president, testified that Zlotnick had a prospectus in his hand when he came in to sign the deposit agreement and that they discussed the number of bedrooms as well as the range of prices. A “perpetual use and equity contract” bearing Zlotnick’s signature, dated August 25, 1948 but actually signed at some later time, states that the apartment has “foyer, kitchen, dining room, porch, living room, bedroom and bath”. Zlotnick testified that this contract was in blank when he signed it. But he admitted he had been in business over thirty years without ever signing a contract in blank. Fie testified that no floor plan was attached when he signed this contract, but according to the witness Flynn all use and equity contracts were filled out and had floor plans attached when they were signed, and they were always gone over with purchasers; no purchasers signed in blank.

Zlotnick paid $13,000 for apartment 102. He testified he thought this enough, though he believed the apartment had two bedrooms, because it was on the ground floor near the service entrance, and noisy, and because it had rented for $30 or $35 a month less than other two-bedroom apartments.

The District Court found in substance that Broadmoor intended to sell to Zlotnick a one-bedroom apartment and Zlotnick intended to buy a two-bedroom apartment. The court concluded that this essential misunderstanding as to what was being bought and sold prevented any valid contract of sale from being made. The contract of sale, if any, was the deposit agreement. The court evidently thought that because of the unusual circumstances, the term “apartment 102” in the deposit agreement was ambiguous and might mean either (1) apartment 102 as it then was or (2) apartment 102 as (a) both parties knew it had been, (b) one and perhaps both of the parties knew it would be, and (c) a published prospectus and floor plan showed it would be; and that Zlotnick reasonably understood the term in the first sense and Broadmoor in the second. We do not think this view of the facts clearly erroneous.² It supports the court’s conclusion. In law as elsewhere, what would be unambiguous in ordinary circumstances may be ambiguous in special circumstances. As Mr, Williston says: “If every word and every act had but one permissible meaning, it would never be necessary in considering the formation of contracts to inquire into the intent of a speaker or actor; but since this is not the case, if an expression, in view of the circumstances under which it was used, may fairly mean either of two things, each party is at liberty to attach his own meaning * * Williston, Contracts (1936 ed.) § 95.

Since the sale of apartment 102 to Zlotnick failed it follows, as the court found, that Crisp became the owner of the disputed bedroom and was entitled to its possession. The District of Columbia Emergency Rent Act authorizes a landlord to recover possession for his immediate personal use and occupancy. D.C.Code (1940) Supp. VII, § 45 — 1605(b) (2).

The court held Zlotnick responsible 'for the full rent of apartment 102, with credit for certain payments made by him, “until the date of surrender of possession of said apartment * * *.” We think he should have been required to pay the full rent only until he surrendered either the apartment or, the disputed room. If he occupied what was left of the apartment after surrendering this room, the rent should be determined in accordance with law.

Modified and affirmed.

1 . On the same sheet of paper, but not in the agreement, and, as undisputed testimony showed, merely to indicate that “references” were unnecessarjr, Zlotnick was identified as “present tenant of Apt.”

2 . It is of course immaterial that the same might be said of various different views of the facts, one or another of which we might have chosen. For example, my own view might have been that both parties understood “apartment 102” in the second sense. But the question whether the term was ambiguous and, if so, what the parties reasonably understood it to mean was eminently one for the trier of the facts.