129 Va. 346 | Va. | 1921
delivered the opinion of the court.
Gardner Investment Corporation, engaged in the real estate brokerage business, through its president, J. W. Gardner, solicited and obtained from Alice T. Barnard the following contract:
“June 27, 1919.
“To Gardner Investment Corporation:
“Por and in consideration of one dollar ($1.00), the receipt of which is acknowledged, I hereby appoint you exclusive agent to make sale of the real property herein described as 715 Boissevain avenue, for the price of $17,000, upon the following terms: $........' cash, $........ secured by mortgage thereon for .... year at .... per cent, and you are hereby authorized to accept a deposit to be applied on the purchase price and to execute a binding contract for sale on my behalf.
“In case the above-described property is sold or disposed of within the time specified, I agree to make the purchaser*348 a good and sufficient warranty deed to the same, and to furnish a complete abstract of title if required; and it is further agreed that you shall have and may retain from the proceeds arising from such sale no commission on the above price and 100 per cent of all of the consideration for which said property is sold over and above price above specified, amount for which said property may be sold.
“This contract to continue until July 27, 1919, and thereafter until terminated by me giving you as agent one day’s notice in writing.”
While the contract recites the consideration of one dollar, the evidence shows that the recital of such consideration is in print on one of the blanks of the company, and that no consideration was either paid, considered or discussed. Before any sale of the property had been made, Mrs. Barnard wrote this letter to the company:
“715 Boissevain Avenue,
“Norfolk, Va,., July 3, 1919.
“Gardner Investment Corporation,
“330-333 Seaboard Bank Building,
“Norfolk, Va.
“Gentlemen:
“Having reconsidered the matter of selling my home on Boissevain avenue, I beg you to allow me to withdraw the option on said property. Thanking you for your kindness, I am, Very truly yours,
(Signed) “ALICE T. BARNARD.”
On July 5th, when Gardner visited the property, Mrs. Barnard refused to allow the prospective purchaser who accompanied him to enter the house or to inspect its interior, and discussed with Gardner her change of purpose and desire to revoke the authority of the company under
One of the cases cited to support this view is Lawrence v. McCalmont, 43 U. S. (2 How.) 452, 11 L. Ed. 366, but what is said in that case is said with reference to a written guaranty of credit, and the court held that the guarantor having expressly acknowledged the receipt of consideration in the contract, could not prove the lack of consideration for the purpose of showing that she was not thereby bound.
The other case chiefly relied upon is Watkins v. Robertson, 105 Va. 284, 54 S. E. 33, 5 L. R. A. (N. S.) 1194, 115
Stephens’ Digest of Evidence (2nd ed.), p. 220, on this subject, states these among the exceptions to the rule excluding oral evidence for the purpose of varying or contradicting a written contract: “Fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, the fact that it is wrongly dated, want or failure of consideration, or mistake in fact or law, or any other matter which, if proved, would produce any effect upon the validity of any document, or of any part of it, or which would entitle any person to any judgment, decree or order relating thereto.”
Statements to the same effect, fully supported by authority, may be found in 2 Elliott on Contracts, sec. 1642; 1 Greenleaf on Evidence (16th ed.), sec. 284.
We think, therefore, that the evidence should have been admitted and that the jury should have been instructed, in accordance with the request of the defendant, that she had the right to revoke the contract in good faith at any time prior to a sale. The refusal of the trial court to take this view is reversible error.
The case of Perrow v. Rixey, 119 Va. 192, 89 S. E. 101, is, in our view, conclusive of this question. The only difference between that case and this is that there the written agreement did not recite a consideration. It did fix the net price and allowed the agent thirty days in which to make a sale; but the court held that inasmuch as it was an agency to sell land, which was neither coupled with an interest nor founded upon a valuable consideration, it might be terminated by the principal at will on giving notice, in good faith, before the agent found a purchaser; and that, “coupled with an interest,” under such circumstances means an interest in the land itself, as distinguished from an interest in the proceeds of sale.
The contract in this case, illuminated as it is by the parol evidence showing that there was no consideration therefor, is identical in its legal effect with the contract which was involved in the case last cited.
This being the state of the evidence, the trial court instructed the jury as follows:
“The court instructs the jury that if they believe from the evidence that J. W. Gardner, president of the plaintiff corporation, was, on June 27, 1919, a dealer in real estate, familiar with real estate values in the city of Norfolk, and that he then knew the value of the defendant’s property mentioned in the contract sued on in this case; that said Gardner, in order to induce the defendant to enter into the said contract, represented to her in substance and effect that said property was then worth not to exceed seventeen thousand dollars and that said sum was as much as she could possibly sell it for; and if the jury also believes from the evidence that defendant was not familiar with real estate values in said city and did not know the value of said property; that she relied upon the representations so made to her by said Gardner, and on the faith thereof entered into and signed the said contract authorizing said plaintiff to sell said property at the price of seventeen thousand dollars; and if the jury further believes from the evidence that said property was then in fact worth much more than seventeen thousand dollars, and that that fact was then known to the said Gardner, then the said contract was not binding on the defendant, and the jury should find for the defendant. When fraud or misrepresentation is relied on as a defense it must be proved by clear and convincing evidence.”
Our conclusion, therefore, is to reverse the judgment, which was in favor of the company, and to enter judgment here upon the verdict in favor of the plaintiff in error.
Reversed.