53 F.2d 549 | D.C. Cir. | 1931
Appeal from a judgment for the defendant (appellee here) sustaining his motion to strike in an action by plaintiff (appellant here) to recover back $1,500 alleged to have been paid without consideration.
The facts -as stated in the first count of the declaration (admitted to be true by the motion to strike) are substantially as follows: On August 27, 1928, plaintiff entered into an agreement in writing with the defendant, the material parts of which are as follows:
“Received from Christina F. MaeNamee a deposit in the sum of one hundred dollars to be applied as part payment of purchase price of lot 828 in square 56, with improvements thereon known as premises 728 22nd Street NW.
“Price of property, $12,500.00.
“Terms of sale: Cash $5,250.00 and purchaser to assume an encumbrance of $7,000, payable March, 1931, with interest at rate of 6% per' annum, payable annually, secured by first deed of trust on property sold.
“Purchaser agrees to comply with the terms herein of sale within 60 days from the date of acceptance hereof by owner, or as soon thereafter as a report can be obtained on the title, or the deposit will bo forfeited, in which event one-half of said deposit shall be paid to James Morris Woodward. This contract is made in triplicate subject to the approval of owner who agrees to pay the usual commission to the agent and contains the entire agreement between the parties thereto.
“James M. Woodward, Agent.
“We, the undersigned, hereby ratify, accept, and agree to the above memorandum of sale, and acknowledge it to be o-ur contract.
“Christina F, MaeNamee, Purchaser.
“Otto Hermann, Owner.”
Thereafter, plaintiiFs husband became seriously ill, and plaintiff found she could perform her agreement, if at all, with great difficulty and embarrassment; she was in -a highly nervous condition and her health in a precarious state. Thereupon, and within the sixty-day period, she so informed the defendant and told him of her difficulty and embarrassment, “and that she could not purchase said property.” Being ignorant of the legal effect of the agreement, she requested defendant to release her therefrom and to cancel and surrender the same. The defendant knowing that she was ignorant of the effect of the agreement, and designing to ag~
Under our view of the ease, it is immaterial whether the agreement evidenced a mere option to purchase (Block v. Ryan, 4 App. D. C. 283) or an absolute sale (Hazleton v. Le Due, 10 App. D. C. 379; Griffith v. Stewart, 31 App. D. C. 29; Id., 217 U. S. 323, 30 S. Ct. 528, 54 L. Ed. 782,19 Ann. Cas. 639), because it is averred that defendant claimed the deposit as forfeited and thereafter exacted from the plaintiff payment of $1,500 to release her from her agreement. When plaintiff notified defendant that she could not carry out the terms of the contract, the defendant was at liberty to treat the contract as breached. Landvoigt v. Paul, 27 App. D. C. 423, 430; Roehm v. Horst, 178 U. S. 1, 7, 20 S. Ct. 780, 44 L. Ed. 953; United States v. Purcell Envelope Co., 249 U. S. 313, 320, 39 S. Ct. 300, 63 L. Ed. 620. Claiming forfeiture of the deposit constituted an election so to treat it. By claiming that forfeiture, the defendant- deprived himself of any further relief, legal or equitable. Hazleton v. Le Duc, 10 App. D. C. 379, 391; Barnette v. Sayers, 53 App. D. C. 169, 171, 289 E. 567. It is apparent, therefore, that the $1,500 was paid without consideration.
But defendant contends that the misrepresentation which is alleged to have induced the settlement and payment of $1,500 was one of law and that, therefore, the money paid under the settlement cannot be recovered back. Undoubtedly such is the general rule (Upton v. Tribilcock, 91 U. S. 45, 23 L. Ed. 203; Jordan v. Stevens, 51 Me. 78, 81 Am. Dec. 556), but there are exceptions to this rule.
Thus, in Wheeler v. Smith, 9 How. 55,13 L. Ed. 44, a bequest had been made to trustees (executors) for such purposes as they considered might promise to be most beneficial to the town and trade of Alexandria, which bequest was void. The executors, men of standing and for whose abilities and character the heir at law (a young lawyer, but inexperienced in business affairs) maintained a profound respect, advised'the heir at law that the bequest was valid. He thereupon at their suggestion executed a release in consideration of the sum of $25,000. The court said (page 82 of 9 How.): “But in making the compromise, the parties did not stand on equal ground. The necessities and character of the complainant were well known to the executors. * * * We are to judge of this compromise by what is stated in the bill, the facts being admitted by the demurrer. And it appears to us that the agreement, under the circumstances, is void. It cannot be sustained on principles which lie at the foundation of a valid contract. The influences operating upon the mind of the complainant induced him to sacrifice his interests: He did not act freely, and with a proper understanding of his rights.”
See also Ryon v. Wanamaker, 116 Misc. Rep. 91,190 N. Y. S. 250, affirmed 202 App. Div. 848, 194 N. Y. S. 977; Jordan v. Stevens, 51 Me. 78, 81 Am. Dec. 556; Freeman v. Curtis, 51 Me. 140, 81 Am. Dec. 564; Union Trust Co. of New York v. Gilpin, 235 Pa. 524, 530, 84 A. 448; Northrop v. Graves, 19 Conn. 548, 50 Am. Dec. 264.
In the present ease, the plaintiff, while in a highly nervous condition and in a precarious state of health and ignorant of her rights, notified the defendant of her inability to fulfill her agreement, and requested a release therefrom. The defendant, with full knowledge of her condition and that she was ignorant of her rights, took her request under consideration, and subsequently and for the purpose of deceiving her and inducing her to pay a large sum of money, demanded of her as an alleged consideration for surrendering the agreement the sum of $1,500, having already claimed the “payment of one hundred dollars as forfeited.” We think it apparent that the parties were not on an equal footing. Under the admitted facts, the defendant’s demand was not made in good faith, since he knew that by declaring the forfeiture of the $100 deposit he had exhausted
Judgment reversed, with costs, and cause remanded for further proceedings not inconsistent with this opinion.
Reversed.