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Record No HARRY BARR. T. MILES MacGLOT HLIN. In the Supreme Court of Appeals of Virginia at Richmond
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Noel Kevin Hoover
1 170 I Record No. 2274,( In the Supreme Court of Appeals of Virginia at Richmond HARRY BARR v. T. MILES MacGLOT HLIN FR OM THE CIRO-C IT C'0R'l.' 0 1? T IIE CITY OF NORFOLK. RULE 14.,r5. N 1; :mmr oi; CoPrns To ne F I LED AN"D DELIYERED To Qpposrno CouxsEL. Twenty copies of eacl1 brief shall be filed with ihe clerk of the rourt. and at l<~ast iwo copies mailed or delivered to opposing counsel on or before the clay on which the b rief ii:; filed. 1f6. StzE AXD TYPE. Briefs shall be printed in type not less i 11 si.r,o than small pica, tmu sb:111 be nine inches in lengib and Rix inches in width. so as to conform in dimensions lo the printed records. The record nurnher of the case shall Le vrinf:cd on nll l,r icfs. The foregoing is printccl in small pica type for the i11forrn n t ion of counsel. M. n. ""\VA TTS, Clerk.
2 INDEX TO PETITION (Record No. 2274) Page Statement of Facts * Assignments of Error * Arg t1ment Concl11sion * Certificate ~ Authorities Ca.dy v. Straus, 97 Va * Definite Contract Building, etc., Ass'n-. v. Tivmin, 158 Va. 771, 783, 164 S. E * and 9)!: Durnlop v. Baker, 239 Fed *' Kibler v. Ja1nes, 94 Va ~... 12* McDaniel v. Daves, 139 Va. 178, s Mitndy v. Garland, 116 Va * Whitaker v. Lane, 128 Va
3 IN 'fhe Supreme Court of Appeals of Virginia AT RICHMOND. Record No HARRY BARR, Plaintiff. in Error, versus T. MILES ]\facglothlin, Defendant in Error. PETITION FOR WRIT OF ERROR. To the Honorable Justices of the Supreme Court of.appeals of Virginia: Your petitioner, Harry Barr, respectfully represents that he is aggrieved by a final judgment rendered against him by the Circuit -Court of the City of Norfolk on the 18th day of December, 1939, in favor of T. Miles MacGlothlin for t~e sum of $2,150.00, with legal interest thereon from November 2nd, 1939, together with the costs, in an action pending in said court wherein the said T. Miles MacGlothlin was plaintiff and your petitioner was defendant. We will hereinafter ref er to the said T. Miles MacGlothlin as plaintiff, and to your petitioner as defendant, in accordance with their respective positions in the lower court. A transcript of the rooord, with the exhibits, is herewith filed, to which reference is hereby made. This petition, which is adopted as the opening brief, a copy of which was delivered to counsel for the plai11:tiff on the 26th day of January, 1940, will be filed with the Honorable Justice John W. Eggleston, at his office in the *City of 2 8 Norfolk, and simultaneously with the filing of said petition, a check for $1.50,- payable to the order of the Clerk of this Court to cover costs accrued up to the time of grant-
4 2 Supreme Court of Appeals of Virginia. ing or refusing this petition, will be tendered, and oral argument in favor of granting this petition is requested. F:ACTS. This was au action at law brought by the plaintiff against the defendant to recover damages for alleged breach of con- tract to purchase real estate. On Friday night, February 17th, 1939, plaintiff and defendant entered into a contract for the sale by plaintiff to defendant of real estate located in the City of Norfolk, including shrubbery, screens, shades, Venetian blinds and an electric cooking stove, all for the sum of $12, A written memorandum of said agreement was signed by both parties at that time, dated February 18th, 1939 (Exhibit l}, and defendant paid plaintiff $ on account of the purchase price. Defendant was unfamiliar with the neighborhood wherein the above-mentioned property was located. He wanted to buy a home close to a school on account of his small children. Defendant testified that before.he signed the aforementioned agreement, plaintiff represented to him that the above property was very close to a school; that he would not have agreed to buy the property if it were not close to a school, and that he relied on plaintiff's representation that the property w as very close to a school (R., p. 125). Defendant also testified, without objection, that it was agreed between the parties that the agreement was not to become effective until plaintiff's wife also sig ned it, because at that 3* *time plaintiff and his wife were living apart and plaintiff was not certain as to whether she would agree to the sale of the property. On the following day, plaintiff's agent, on the advice of his counsel, prepared a more formal eontract (Exhibit 2), setting out the terms previously agreed upon and a more detailed description of the property, which last mentioned contract was executed on the following Sunday morning (R., p. 140). On that Sunday afternoon, defendant and his wife ascertained for the first time that the nearest school to the above property was about eight-tenths of a mile therefrom, and that it was very difficult for small children to travel from said property to said school and back (R.., p. 128). So on the following Tuesday night, defendant informed plaintiff and his agent that he was not going to purchase the prope1 ty, because plaintiff and his agent had misrepresented to him the location of the school, since the school was very much further away from the property than plaintiff and his agent had represented it to be. On the following day, to-wit, February 22nd, 1939, plaintiff, through
5 Ha-rry Barr v. T. Miles MacGlothlin. 3 his agent, inserted in the Ledger Dispatch, an evening news~ paper published in the City of Norfolk, a small advertisement for the sale of said property (Exhibit B). On Feb-. ruary 28th, 1939, nearly a week after the publication of said newspaper advertisement, plaintiff's agent had defendant write her a letter authorizing her to sell said property and to retain 50% of what it sold for in excess of $12, Defendant wrote the letter at the urgent request of plaintiff's agent, who stated that she had to have the letter on account of the written contracts then outstanding. This letter 4* *was introduced in evidence by the plaintiff as Exhibit 3 (R., p. 18). The trial court refused to permit defendant to explain the purpose for which the letter was written and the representation made to him as an inducement for writing it. Plaintiff's wife did not sig'il a deed for said property until several months after defendant advised plaintiff he was not going to buy it. Long after defendant refused to purchase the property for the reason heretofore set out, he was notified by plaintiff's counsel that plaintiff would resell said property for the account of defendant and would seek to hold the latter liable for the difference between the agreed price and what the property was resold for. Plaintiff did subsequently sell the property at a private sale to a l\fr. Brinson for $10, (R., p. 47), and thereafter brought this action against defendant to recover the difference between the contract price and what the property was resold for to Mr. Brinson. The uncontradicted evidence was that at the time the defendant rescinded the contract and at the time the property was resold to Mr. Brinson, said property was worth as much as what the plaintiff agreed to sell it for to the defendant. In fact, the plaintiff and his agent both testified to that effect. Ou page 56 of the record, the plaintiff testified as follows: - '' Q. Was there any difference in tbe house between the time you sold it to Mr. Barr and the time Mr. Brinson bought iu" '' A. None to my observation, no.'' '' Q. No difference in the value Y'' '' A. I don't think so.'' '' Q. In fact~ it was in a lot better shape, was it not, as far as the shrubs were concerned 1 '' "A. The grass may have been cut a couple of times, but I don't think anything had been spent on it.'' 5* '' Q. It was worth just *as much when Mr. Brinson bought it as when Mr. Barr ag-reed to buy it?" '' A. Yes, I think so."
6 4.Supreme Court of Appeals of Virginia. At the conclusion of the evidence, defendant moved to strike out the plaintiff's evidence on the ground that even if the plaintiff were entitled to recover in this case, he had suffered no damage for the reason that at the time defendant rescinded the contract, the fair market yalue of the property was as much as the contract price and, hence, the plaintiff had proven no damage, as he was required to prove under the law applicable to the case at bar (R., p. 177). The errors assigned are : ASSIGNMENTS OF ERROR. 1. The court erred in refusing to set aside the verdict of the jury because it was contrary to law and the evidence. 2. The court erred in granting instructions "1" to "7", inclusive, asked for by plaintiff (R., pp. 185, 186, 187, 188, 189, 190, 191). 3. The court erred in refusing instructions '' 3D '', '' 4D '', "5D'', "6D'', "7D", ''8D" and "9D" requested by defendant (R., pp. 192, 193, 194, 195, 196, 197). 4. The court erred in refusing to p~rmit defendant to testify as to the representation made by plaintiff's agent as an inducement for said letter. 5. The court erred in refusing to. sustain defendant's motion to strike out plaintiff's evidence (R., p. 177). 6* * ARGUMENT. vve will treat the aforementioned assignments of error in the order in which they are above set out. 1. The verdict of the jury was contrary to law and the evidence, and the court should have set a.side the verdict pn that ground and entered a final judgment for the defendant. The record discloses that the plaintiff's case is predicated upon the existence of a binding contract for the sale of real estate, which the defendant was alleg ed to have breached without legal excuse, after which the plaintiff resold the property for the account of the defendant at a private sale for $2, less than the contract price. He proceeded on the theory that be,,,as entitled to.recover from the defendant tbe difference between the contract price and what he resold the property for to Mr. Brinson, regardless of the fair market value of the property either at the time the defendant rescinded the contract to purchase or at the time it was resold
7 Harry Barr v. T. ~files l\facglothlin. to Mr. Brinson. This theory of the plaintiff's is supported by the allegation in his notice of motion (R., p.. 2), the view of counsel for the plaintiff expressed on page 144 of the record, and the evidence hereinafter quoted. In the notice of motion above ref erred to,. the plaintiff alleges as follows : '' When you failed to carry out the terms of the contract, the undersigned was forced to seek another purchaser, and after many attempts found a purchaser for said property for a sum less than you contracted to pay with the result that the undersigned has been damaged in the sum of $2, by reason of your failure to purchase the property in accordance with the terms of your contract." 7 *In arg11ing an objection to certain evidence on page 144 of the record, counsel for the plaintiff contends that after the defendant rescinded the contract, the plaintiff had the right to resell the property for the account of the defendant and sue for the difference. Furthermore, the plaintiff's own testimonv and that of his witnesses shows that after the defendant refused to purchase the property, he resold it for the account of the defendant and was seeking to hold him liable for the deficiency in this action. on page 4.7 of the record, plaintiff testified as follows : '' Q. After the extension period had expired, you were noti fied Mr. Barr would not take title?" "" "Q. What did you do with reference to it?" '' A. I went to see Mr. Barbour Rixey about it and he said we would have to give them notice that if they did not take it, we would l1ave to resell it ancl expect the difference from him, 1\fr. Barr.'' '' Q. You finally did sell it T" '' A. I told Mr. Truitt to go ahead and try to get the money for it and this was the best off er he got.'' l\fr. I. F. Truitt, plaintiff's agent, testifying on behalf of the latter, page 91 of the record, says: '' Q. For whom did you sell it?" "A. For J\fr. MacG1othlin." "Q. You so]d it for Mr. MacGlothlin and not for Mr. Barr?" s
8 6 Supreme Court of Appeals of Virginia. '' A. No, not for :M:r. Barr.'' We resp~tf:ully submit that the plaintiff had no right to resell the pro;perty for the account of the defendant, and that even.if there had been a binding contract which the defendant breached without cause and the plaintiff resold the property, he wou1d be limited in his action for damages to the difference between the contract price and the fair market value of the property at the time of such breach. And if the fair market value of the property at the time of such s breach was no *less than the contract price, then there would be no damages recoverable. It would be solelv a case of darrvnivm absq~te in.furia. The law in this state fixing the remedies a vendor of real estate has against a. vendee for a breach of contract to purchase real estate is well settled. In McDaniel v. Daves, 139 Va. 1.78, on page 193, '-Tudge :Burks lays down tl1e fallowing rule in a case of this type and says:. ''The question of the measure of damag es for the breach of a contract for the purchase of real estate by the vendee has generally arisen bet.ween a vendor in possession of the land and n. purchaser from him. The rule generally prevailing is that the measure of damages for a purchaser's refusal to perform a contract for the purchase of real estate is ordinarily the difference between the contract price and the market value at tlle time of the breach, with interest from the date of the breach, iohere the title re1nains in the vendor and the r,ioney -in the pierch aser." (Italics ours.) In Definite Contract Bitildin_q, etc. Ass'n. v. Titmin, 158 Va. 771, 164 S. E. 562, this court on page 783 of the Virginia Reports sets out the remedies afforded a vendor of real estate against a vendee thereof who has breached his contract to J?Urchase the same, and says : "As a general rule where the owner of real estate has made an executory contract to sell it to the Yendee, if the venclee fails or refuses to accept a deed tl1er(~for and pay tl1e purchase price, the vendor has no authority to niake a resale of the vroverty for the account of and at the risk of tlze venilee. He is limited to one of three remedies: (l) He may sue for specific p~rformanfc and in such snit have the property resold at the risk of the vendee. (2) In Virginia and some
9 Harry Barr v. T. Miles MacGlothlin. 7 other states, he may, if he is ready, willing, and able, to comply with the contract on his part, bring an action at law against the vendee for the unpaid purchase money *. (3) He may retain the property, or sell it to another, and 9~ bring an *action against the vendee for damag es for the breach of the contract. "If he elects to pursue the third coitrse, _qenerallv the m,eas 1,1,re of his daniages is the difference between the contract price and the salable or market vafoe of the property 1 at the time of the breach, against which the vendee is entitled to eredit for any sums pa.id by him on the purchase price. The vendor has no authority to niake a resale of the property for the account of and at the risk of the vendee, o r vou cr to ffo; conclusfoel:lj the amount of da.mages by makin,q a re.~ale of the property. But the amount received therefor at a rerale, public or private, fairly made, within a reasonable time nfter the breach, is admissible on the question of the Ralable or market value of the property at the time of the breach * * "'. ''1Vhere the vendor is the owner of pro17erfy sold and is entitled to the vossession anr~ beneficial use of it, this rule as 1 to t,,.e measu-1 e o f d.ama.ges is. f air. an d JUS. t * * * " (Tt a 1 1cs ours.) The faw is, therefore, well settled in this state that if a vendee in an executory contract for the purchase of real estate brp.a.ches his contract, and the i;rendor seeks to bring an action for damages instead of a suit for specific performan<?e, or an action at law for the purchase price, then the vendor has no right to resell the property for the ac~unt of and at the risk of the venclce. If he does resell the property, then he is only entitled to tlw diffewmce between the contract price a.nd the fair market value at the time of the breaeh, regardless of the amount he actuallv resells it for. In tlrn case at bar. tlh~ plaintiff l1ad three different 1~emedies, nny one of which he could have pursued. He elected and procp.eded to stw for damages. Hence, under the authorities above cited, he was limited to such damages as he could prove, namely, the difference between the contract pric(j 10* *and the fair market value of the property at the time of the breach of the contract. If the fair market valu(l of the property at the time of the hreach of the contract was as much as the contract price, then the plaintiff sustained 110 damages and was not entitled to recover any. The uncontradicted evidence, including the plaintiff's own testimony, was that at the time the defendant refused to purchase
10 8 Supreme Court of Appeals of Virginia. the property and at the time of its resale, the fair market value was as much as the contract price. Hence, the plaintiff has shown no damages, and the verdict of the jury allowing him as damages the difference between the contract price and what the property was resold for by the plaintiff was contrary to law and should have been set aside. And since the evidence showed that the plaintiff sustained no damages, the court should have entered a final judgment for the defendant. The plaintiff may argue, as he did in the trial court, that this case is different from the cases above cited on account of the letter which the defendant wrote to the plaintiff's agent, apparently authorizing her to sell the property and to retain 50% of the purchase price in excess of $12,000.00, (Exhibit H). We are, therefore, answering that argument in advance. "\Ve seriously contend that said letter in no way takes the instant case out of the rule laid down in the aforementioned cases. In the first place, the above letter, which we - were prevented from explaining, merely'authorized the plaintiff's agent to sell the property at a definite :fig'ure. It did not make her au agent to sell the property as the defend- 11 * ant's, because the *latter was not the owner thereof. In the Recond place~ the evidence clearly shows that the plaintiff did not sell the property to Mr. Brinson because he was expressly authorized so to do by the defendant, but he resold it "for the account of and at the risk of'' the defendant. There is not a scintilla of evidence in the record that the property was sold by anyone as agent for the defendant, but the evidence of the plaintiff, himself, and his witnesses was that it was sold by the plaintiff for the account of the defendant. On page 33 of the record, Mrs..Clrnpman, the plaintiff's agent, says: '' Q. According to your letter, he wanted to sell it above $12, and not below that Y '' "" '' Q. Why did you sell it for $10, Y ' '' A. I didn't.,;;ell it the la.cit time. l nm 'not farniliar 1vitli tli,p. last transaction at all." (Italics ours.). And on page 37 of the record, Mrs. Chapman further tes. tified:. "Q. You never advised Mr. Barr you had a customer for $10, Y"
11 Harry Barr v. T. Miles MacGlothlin. 9 '' A. I didn't because I didn't handle the last transaction. You see, M,r. Truitt handled that." (Italics ours.) The learned trial judge, in his opinion (R., p. 200), agrees with our contention that where the vendee in a contract for the sale of real estate breaches it, the vendor is limited in his damages to the difference between tlie contract price and the market value at the time of the breach; but he took the view that the sale was authorized by the defendant and based his decision on the case of 1111.tndy v. Garland, 116 Va. 922, to sustain his view. A.n examination of the last mentioned ease will clearly show that it is not at all applicable to the case at bar. In the case of M U'l'tdy v. Garland, supra, a 12 contract was,,entered into between the vendors and vendees for the sale and purchase of real estate, and two days thereafter the same parties entered into another written contract whereby the vcndees expressly authorized and directed the vendors to resell the property, and they agreed with the vendors that if the property sold for less than the contr8:'ct price that they, the vendees, would pay the vendors the difference between the contract price and what the property was resold for. There was, therefore, in that case an express authorization for a resale of the property and a promise to pay any deficiency. But in the case at bar, the property was not resold because of any authority from the defendant, but for the account of the defendant by reaspn of his alleged breach of contract. We, therefore, respectfully submit that this case is controlled by the aforementioned cases of DP,finite Contract Buildin_q, etc. Ass'n. v-. 1l1t1nin, supra, and McDc11nicl v. Da1;es, supra,, and that the case relied on by the learned trial judge, as aforesaid, is not in point. The nlnintiff ma;y also rely on the cases of I(ibler v. James, 94 Va. 16n, and McDaniel v. Daves, suvra, both of which cases are cited in the opinion of the case of Definite Contract.Buildi1io. etr:..a.<;s' n. v. Twmin,,.<;wpra. An examination of said cases will clearly show that thev are not in point. In the case of Kibler v. Jmnes, supra, as in.the case of McDaniel v. Da.ves. s1mra, the plaintiff had only one remedy to pursue, and in n~ither c:1se was there an,1ction between a vendor of property in his possession against a purchaser thereof, and, of course, in those cases an action for breach of contract for the 13* recovery *of damag es necessarily flowing- therefrom was upheld. In fact, in the case of McDaniel v. Daves, supra, this court lays down the same principle as that laid do'\vll in the ease of Definite Contract Bidldin_q, etc.. Ass'n. v. T1.l/mfo..,.<;upra, as to the amount of damages a vendor can
12 10 Supreme Court of Appeals of Virginia. recover from a vendee when property is. resold, and points out that. the questiqn involved in that case is not such a case. We, therefore 1. submit that the evidence dearly shows that th~ pl!l... intiff resold the property for the account of and at the risk of the defendant,. and having done so, he was be,nnd by his election and could only recover the difference, if any, between the contract price and the fair market value of the p1 operty at the time of the breach; that there wa.s no difference between the contraet price and the value of the property at the time of the breach, and, hence, the verdict of the jury permitting the plaintiff to recover the difference between the contract price and what the plaintiff resold the property for, rcgardlcsa of its fair market value, was erroneous and should have been set aside. We have rliscussed the first assignment of error at length because we feel that it goes to the crux of the case, and is ampfo ground for a reversal of the judgment rendered against the defendant and for the entry of a judgment in favor of tile latter. 2. ']~he court erred in granting instmctions "1" to u 7 ", inclusive, asked for by the plaintiff (R., pp. 185, 186, 187, 188~ 189, 190, 191 }. 14* The defendant testified, without objection, that at. the time lie signed the agreement, it was expressly understood between the partier that the same was not to t.a.ke effect until the plahi.tiff "s wife signed it (R., pp. 126, 127). The evidence was tlrn.i: the dpf enda.nt rescinded the contract before the plaintiff's wife signed it or sig ned a. deed for the property. Of course, the plaintiff denied sucl1 agreement. If the defendant's testimony as to tlie condition upon which the contract was signed was trne; then he had the right to rescind the contract at any time before the plaintiff's wife signed it. The defendant"s signature was merely an offer to buy tile property if and when accepted by the plaintiff's wife. In Cady v. Straus, 97 Va. 701, the court says: "That an offer mav be withdrawn at anv time before its acceptance is settled law and is, we think, indisputable. Since an offer unaccepted creates no rights and is not binding upon the party making it, it follows that it may be revoked at any time before acceptance.''
13 Harry Barr v. T. Miles Ma~Glothlin In Whitaker v. Lane, 128 Va. 317, the court says: ''.A contract under seal for the sale of real estate can be delivered,by the purchaser to his vendor on condition, and parol evidence may be received to show the condition upon which it was delivered had not been complied with.'' The defendant had the right to have his side of the case presented to the jury as to whet.her or not the contract was not to become effective until the plaintiff's wife signed it. Instruction '' 1',. granted for the plaintiff precluded the jury from passing on that question because it told the jury as a matter of law that the contract was a binding contract 15* and left out of *consideration by the jury the condition upon which tlic parties executed it. For like reason, Instruction "2" g-ranted for the plaintiff was bad because it precluded the jury from passing on the condition upon which the contract was executed and the defendant's right to rescind the contract before its acceptaneo by the plaintiff's wife. Instruction '' 3'' granted for the plaintiff was likewise erroneous in that it told the jury as a matter of law that tlie contract was binding- on the defendant even before the plaintiff's wife had signed it. Instruction "4" granted for the plaintiff was erroneou~ because it was not supported by the evidence. It told the jury that Mrs. Chapman was the defendant's. agent to sell the property, whereas the evidence shows that Mrs. Chapman did not sell the property to Mr. ijrinson and bad nothing to do with the sale (R., pp. 33, 37, 160), and if the letter referred to as Exhibit 3 could in anv wav he construed as authoritv to Mrs. Chapman to sell, it,vas only a limited authority pe; mitting her to sell at a certain figure. :Furthermore, the defendant was not the owner of the property and could not authorize Mrs. Chapman to sell it for him. Instruction '' 5'' granted for the plaintiff was likewise bad in that it precluded the defendant from relying on the falsp. representation made by the plaintiff as to the location of the school. Defendant and his wife testified, without objection, ah to that representation (R., pp. 97, 125, 129), and 16* since *that evidence was before the jury, it was errol' to take away from the jury the issue raised by that evidence, namely, whether such representation was made, and if it were untrue and defendant relied on it. Instruction '' 6'' gtanted for the plaintiff is manifestly erroneous becau~e it is clearly contra.ry to the law, as laid down by the authorities heretofore cited by us. By that in:.
14 12 Supreme Court of Appeals of Virginia. struction, the jury is told that as a matter of law the plaintiff was entitled to rp.cover the difference between the contract price and what the plaintiff resold the property for to Mr. Brinson for the account of the defendant. It did not submit to the jury the proper measure of damages in cases of this type, namely, the difference between the contract price and the fair ma.rket value of the property at the time of the breach of the contract. We have heretofore shown the uncontradicted eyidence was that the plaintiff resold the property for the account of the defendant, and as additional proof that the plaintiff resold the property for the account of the defendant. we quote further from the testimony: ''By :Mr. Rixey: '' Q. Mrs. Chapman, what effort did you make to sell this property for the account of Mr. Barr after Mr. Barr Rigned this letter of February 28th 1" (R., p. 163.). (Italics ours.) And in tl,e letter written by c.ounsel for the plaintiff to counsel for the defendant (Exhibit 12), they say: "Mr. McGlot.hlin, following tl1e refusal of your client, Mr. Barr, to accept title to the property purchased by him from Mr. McGlotb1in in Algonquin Park, hns attempted to reselj the property for $12,000.00, the purchase price which Mr. Barr was to pay for the property. He has been unsnccessful in finding a purchaser at that figure, and ~l1as now, 17* as we l1ave advired yon heretofore, found a purchaset for tbe sum of $10, and the sale will now proceed for the account of Mr. Barr, and we will look to him for the loss sustained by Mr. :McGlothlin.'., Hence, since the evidence showed that the plaintiff resold the property for the account of t.he defendant, the court should have told the jury tha.t if the plaintiff w~as entitled to recover any damages, it should have been for the difference between the contract. price and the fair market value of the property at the time of the alleged breach of the contract. Furthermore. tl1e instruction left out of consideration by the jury the question whether the sale wa.s fairly ma.de, although there was ample e-vidence in the record to show that the sale was a forced sale because of the estrang ement between plaintiff and Jih:; wife. On page 1.64 of the record, Mrs. Chapman testifies in part ar follows:
15 Harry Barr v. T. Miles. MacGlothlin. -13 '' Q. Do you think $10, under the circumstances was a fair price? '' '' The way it came about, how. it happened, it 1 was _ a question of a forced sale and it was sold for his account." '' Q. what do you mean by a. forced sale 7'' "A. Mr. Rixey notified us we would have to sell it for his ac~ount." (Italics ours.) If properly instructed, the jury may have found that the sale was not fairly made. The instruction was also bad because it made the defendant liable for commissions of several hundred dollars which the plaintiff paid on a resale of the prop~~, Instruction '' 7 '' g-ranted for the plaintiff is likewise objectionable for the reasons her-etofore set out. 3. The court erred in refusing to grant instructions '' 3D '' to ''9D ", inclusive, requested by the defendant (R., pp. 192 to 197. inclusive). 18~ *Instruction ''!-ld'' should have been grant.ed because there wai:; evidence on thp. part of the defendant that the contract was not to become effective until the plaintiff's wife si,5rned it (R., pp. 99, 126). It was for the jury to say whether thp. ag reement was signed on such condition. Instruction ''4D" should have been granted because there was evidence of misrepresentation on the part of the plaintiff as to the location of the ~c.hool and defendant's reliance thereon (R.. pp. 97,)24, 125). That evidence was not objected to and it was up to the jury to say whether there was such misrepresentation. Instruction '' 5D '' should have been g-ranted because there was evidence that at the time of the proposed settlement of the property, the plaintiff was not in position to deliver a deed executed hv his wife. fostruction "6D'' should have been granted because it c1cmrlv states the law a.s to the measure of damages in case$ of thi8 type. Instruction "7D" should have been granted because there was evidence to show that the contract was executed on a Sundav. and that t11e execution of such contracts was within l\fr~. Chnpman 's usual employment. See Dunlop v. Baker, 239 Fed. Hl7. Instrnction ''SD'' sl10ulcl have been gtanted because there was evidence fonding to r;how that the plaintiff did not make any ciff ort to minimize the defendant's damages and sold the
16 14 ~preme Court of Appeals of Virginia. y,roperty hnrdedly for the reason heretofore set out. 19 *It was for the jury to say whether the plaintiff made a reasonable effort to obtain the highest price he could get for the property. :b-,or like reasons, Instruction '' 9D" should have. been granted. 4. The conrt erred in refusing to permit the defendant to testify ns to the representation made by plaintiff's agent as an indul~ement for said letter. The defendant would have testified that said letter was obtained by a fraudulent representation (R., p. 184). We deem it unnecessary to cite authorities for the well settled proposition that parol evidence is always admissible to show fraud or misrepresentation. 5. The con rt erred in not sustaining the defendant's motion to strike out the plaintiff's evidence for the reasons given in discussing the first assignment of error. For tlle reasons above set forth, the Circuit Court of the City of Norfolk, as your petitioner is advised and now charges,. erred to his prejudice in its ruling a.nd judgment aforesaid,. and for the errors so made and other errors apparent on the face of the record, the judgment of the Circuit Court of the City of Norfolk should be reviewed and reversed, and your petitioner accordingly prays that this Honorable Court will grant him a writ of error to the judgment aforesaid, and will review and reverse said judgment, and either enter final judgment in favor of your petitioner or remand, the ease to 20ii the Circuit Court of the *City of Norfolk for further proceedings according to law, as this court shall deem advisable. And as in duty bound, your petitioner will ever pray, etc. HARRY BARR, By BERN.A.RD GLASSER, 125 W. Berkley Ave., Norfolk, Va. HERMAN A. SACKS, 507 Bank of Commerce Bldg., Norfolk, Va. His counsel. We, Bernard Glasser and Herman A. Sac.ks, attorneys practicing in the Supreme Court of Appeals of Virginia, do certify
17 Harry Barr v. T. :Miles MacGlothlin. 15 that in our opinion the judgment complained of in the foregoing petition should be reviewed by the Supreme Court of Appeals of Virginia. BERN.A.RD GLASSER, 125 W. Berkley Ave., Norfolk, Va. HERMAN A. SACKS, 507 Bank of Commerce Bldg., Norfolk, Va. Received copy of this petition this 26th day of January, R.eceived Jan. 26, RIXEY & RIXEY, Attorneys for T. Miles MacGlothlin..T. W. E. February 21, Writ of error awarded by the court. Bond $300. VIRGINIA: RECORD M.B.W. Pleas before the Circuit Court of the City of Norfolk, at the Courthouse thereof, on the 18th day of December, in the year, Be It Remembered, That heretofore, to-wit: In the Circuit Court aforesaid, on the 5th day of August, in the year, 1939, came the plaintiff, T. Miles Ma.cGlothlin and docketed his Notice of Motion for judgment against the defendant, Harry Barr, in the following words and figures, to-wit: Virginia: In the Circuit Court of the City of Norfolk. T. Miles MacGlothlin v. Harry Barr
18 16 ~upreme Court of_ Appeals of Virginia. To Harry Barr 1040 Brandon Ave. Norfolk, Va., NOTICE OF MOTION. Take notice that a.t 10 :00 A. M. on the 5th day of August, 1939, or as soon thereafter as counsel can be heard, the undersigned will move the Circuit Court of the Qity of Norfolk, Virginia, at the courthouse thereof for a judgment and award of execution against you for the sum of Twenty-five Hundred Dollars ($2,500.00) and the costs of this proceeding, for this, to:.wit: That on the 18th day of February; 19'39, you entered into a contract with the undersigned to purchase from page 2 ~ the undersigned certain property mentioned in said contract., copy of which said contract you retained, for the sum of Twelve Thousand Dollars ($12,000.00). That in accordance with th~ terms of tl1e contract the undersigned was ready to deliver to you the title to said property and called upon to make settlement in accordance with said contract, but you have failed to abide by the terms of the contract. and accept the title to the property and make settlement without giving any excuse therefor. Tliat when you failed to cari:y out the terms of the contract,. the undersigned was forced to seek another purchaser, and after many attempts found a purchaser for said property for a sum less than you contracted t.o pay. That you were advised of the said prospective purchaser for a sum less tl1an you contracted to pay, and finally the undersigned sold the property to one W. G. Brinson, with your knowledge and consent, with the result that the undersig-]!ed has been damaged in the sum of Twenty Five Hundred Dolfars ($2,500.00) by reason of your failure to purchase the property in accordance with the terms of your contract. T. MILES 1\faoGLOTHLIN, By RIXEY & RIXEY, His Counsel. The following h~ the Ser~ eant 's return on the fore going notice of motion : Not finding the def"endant Harry Barr at his usual place of nbode I executed the wit.bin in the City of Norfolk, Virginia,
19 Harry Barr v. T. l\files MacGlothlin. 17.this 12th day of July, 1939, by clelive.ring a copy hereof and giving information of its purport to Miss A. N. page 3 ~ Barr, his daughter, found there, she being then and there a member of his family and above the age of sixteen years. LEE F. LAWLER, Serg eant of the City of Norfolk, Virginia. By W. CARMINE His Deputy. And on the same day to-wit~ In the Circuit Court aforesaid, on the 5th day of August, in the year, 1939: Upon the motion of the plaintiff, by counsel, it is ordered that this notice of motion be docketed. And thereupon came as well the plaintiff, by counsel, as the defendant, by counsel, and thereupon said defendant pleaded the general issue to which said plaintiff replied generally and issue is joined; and the fnrtl1er hearing is continued.... t\..nd on another day, to-wit: In the Circuit Court aforesaid, on the 9th day of October, in_ the year, 1939: This day came again tbe parties, by counsel, and on the motion of snid plaintiff it ir ordered that said defendant file herein the statement of his GrQunds of'defens e;.and the further h~arin,g is continued. And ori another day, to-wit: In the Circuit Court aforesaid, on the 25th day of October, in the year, 1939: This da.y came again the defendant, by counsel, and with leave of Court filed herein the statement" of his Grounds of Defense; find with like leave of,court filed herein his Plea of Set-Off; and the further hearing is continued. The following is the Grounds of Defense filed by leave of tlrn foregoing order: In addition to all defenses provable under the pag e 4 ~ g eneral issue, which the defendant intends to rely on, the said defendant intends to relv on the following defenses:..
20 18 S:npte~e Court of Appeals of Virgi~a. 1. That the contract refened to in the notice of motion was procured by fraud and false representations. 2. That said contract was not to become in force until its acceptance by the plaintiff's wife, and that before such ac.. ceptance the defendant notified the plaintiff of the withdrawal of his offer set out in said contract. 3. That the plaintiff was unable to deliver to the defendant a good and sufficient deed of bargain and sale for the propf rty set out and described in said contract at the time for settlement. 4. That the said plaintiff was not in position to deliver to the defendant said property free from iiens or claims,. ancl es1,ccia1ly the contingent dower of the said plaintiff's wife. HERMAN A. SACKS, BERNARD GLASSER. The following is the Plea of Set-off also filed by said or.. der on the 25th day of October, in the year, 1939: The said defendant, by his counsel, comes and says that on the 18th day of February, 1939, the defendant paid to the plaintiff the sum of One Hundred ($100.00) Dollars on account of the purchase price of certain real estate set out and described in the contract entered into between the plaintiff and the defendant on said date; that said contract was not to become effective until executed by the saiq. plaint.iff 's wife; that before said contract was executed by the plaintiff's said wife, the plaintiff rescinded said contract; that said page 5 ~ contract wa.s obtained by fraud and misrepresentations on the part of the plaintiff, and that the plnint.iff could not comply with the terms of saia contract even if the same had not been fraudulently obtained, as aforesaid, by reason whereof the defendant is entitled to recover the One Hundred ($100.00) Dollars paid to the plaintiff, as aforesaid. Wl1erefore, The defendant prays that judgment be entered in his favor against the said plaintiff for said sum of One Hundred ($100.00) Dollars, with interest thereon from February 18th, 1939, until paid. HERMAN A. SACKS, BERNARD GLASSER, p. d. The following are th<? additional Grounds of Defense, filed in the Circuit Court aforesaid on the 1st day of November,
21 Harry Barr v. T. Miles :M:acGlothlin. 19 in the year, 1939, by leave of the order which follows the statement; In addition to all defenses provable under tl1e general issue, which the defendant intends to rely on, the said defendant intends to rely on the following defenses : 1. That the contract. referred to in the notice of motion was procured by fraud and false representations. 2. That said contract was not to become in force until its acceptance by the plaintiff's wife, and that before such acceptance, the defendant notified the plaintiff of the withdrawal of his offer set out in said contract. 3. That tl1e plaintiff,vas unable to deliver to the defendant a g ood and sufficient. deed of bargain and sale page 6 ~ for the property set out and described in said contract at the time for settlement. 4. That the said plaintiff was not in position to deliver to the~ defendant said property free from liens or claims, and especially the conting ent dower of the said plaintiff's wife. 5. That the resale of said property was improperly made. 6. That the plaintiff sustained no damages. HERMAN A. SACKS, BERNA.RD GLASSER, p. d. And on the same clay, to-wit; on the 1st clay of November, in the year, 1939; in the Circuit. Court aforesaid: This day came ap;ain the parties, by counsel, and thereupon said defendant with leave of Court filed herein his statement of his Grounds of Defense, a.nd thereupon came a jury, to~ wit: FJ. A. Pitts, W. E. Brite, W. L. Piedmont, H. W. Person. "\V. L. Prieur, Sr., J. C. Padgett a.nd L. M. Whitehead, who we1 e sworn to well and truly try the issue joined, and l1aving fully heard the evidence at five o'clock P. l\l, the hour of nd:ionrnme:at havin~ been reachp-d, WP.re adjourned until tomo1~row, Thursday morning, at ten o'clock A. M. for the fnrther consideration of this case. Aud on another day. to-wit: on the 2nd da.y of November, in t]ie )Tear, 1939; in the Circuit Court aforesaid: This day came ag ain tlie parties, by counsel, and pursuant to adjournment came the jury, he.retofore sworn herein on
22 20, Supreme Court of Appeals of Virginia. yesterday, and having fully heard the evidence and pag e 7 ~ argument of counsel returned their verdict in the following words and figures, to-wit: "We the Jury,. find for the plaintiff in the amount of $2,150.00". And thereupon said defendant, by counsel, moved the Court to set aside the verdict of the jury and grant him a new trial on the grounds that the same is contrary to the law and the evidence; and the further hearing of which motion is continued. And on this day. to-wit: in the Circuit Court aforesaid, on the 18th day of December, in the year, 1939, the date first hereinabove written: This da.y came again the parties, by counsel, and the motion for a new trial heretofore made having been fully heard and maturely considered by the court is overruled; whereupon it is considered by the court that the said plaintiff recover against the said defendant the sum of twenty-one hundred and fifty ($2,150.00) dollars, as by the jury in_ its verdict ascertained, with legal interest thereon from the 2nd day of November, in the year, 1939, till paid, and his costs about his suit in this behalf expended to all of which the said defendant, by his attorney, duly excepted. And thereupon the said defendant. having signified his intention of applying to the Supreme Court of Appeals of Virginia for a writ of error and supersedeas. to the foregoing judgment, it. is ordered that execution upon same be suspended for the period of Rixty (60) days from the end of this term of the court, upon the said defendant, or someone for him, entering into and acknowledging a proper suspending bond before the clerk of this court in the penalty of twenty-five hundred ($2,500.00) dollars, with surety to be approved by said clerk, and conditioned acc~rding to law. page 8 ~ And thereafter, to-wit; In the Circuit Court aforesaid on the 15th day of January, in the year, 1940; This day came again the parties, by their attorneys, after 1 easonable notice in writing to the plaintiff, and the defendant presented to the Court a stenographic report of the testimony and other incidents of the trial in this case to be authenticated and verified by tl1e Court, and on motion of the defendant, the same is accordingly done within the time prescribed by law. The following is the stenographic report of the testimony
23 Harry Barr v. T. Miles MacGlothlin. 21 and other incidents of the trial mentioned in the foregoing_ order: page 9 } Virginia: In the Circuit Court of the City of Norfolk. T. Miles MacG lothlin v. Harry Barr NOTICE OF APPEAL. To Rixey and Rixey, Attorneys for T. Miles MacGlothlin. PLEASE TAKE NOTICE That on the 15th day of January, 1940, at 10 :00 o'clock A. M., or as soon thereafter as I may be heard at the Courtroom of the Circuit Court of the City of Norfolk, the undersigned will present to the Honorable A. R. Hanckel, Judge of the Circuit Court of the City of Norfolk, Virginia, who presided over the trial of the above -,mentioned case in the Circuit Court of the City of Norfolk, Virginia, on November 1st and 2nd, 1939, a stenographic report of the testimony and other incidents of the trial in the above case to be authenticated and verified by him. And also that the undersigned will, at the same time and place, request the Clerk of the said Court to make up and. deliver to counsel a transcript of the record in the above entitled cause for the purpose of presenting the same with a petition to the Supreme Court of Appeals of Virginia for a writ of error tl1erein. HARRY BARR, By HERMAN A. SACKS and BERNARD GLASSER, Counsel. Senrice accepted this 9th day of January, RIXE.Y & RIXEY, Attorneys for the plaintiff.
24 22 ~np~.enuf Court of Appeals of Virginia.. page 10 ~ Virginia : JJ,frs. M. E. 0. Chaprnan. In the Circuit Court of the City of Norfolk.. T. Miles MacGlothlin v.. Harry Barr RECORD. Stenographic report of all the testimony, tog etller with all the motions, objections and exceptions on the part of the respective parties, the action of the Court in respect thereto, all the instructions granted, amended and refused, and the objections and exceptions thereto, and all other incidents of the trial of the case of T. Miles MacGlothlin v. Harry Barr,. tried in the Circuit Court of the City of Norfolk, Virginia,. on the 1st and 2nd of November;1939, before the Honorable A. R. Hanckel, and Jury. Present: Messrs. Rixey & Rixey (Mr. John S. Rixey) for the plaintiff. Messrs. Herman A. Sacks and Bernard Glasser for the defendant. J. M. Knight, Shorthand Reporter, Norfolk, Va. page 11 r Note : Witnesses were excluded, and opening statements made by counsel for the respective partie s.. MRS. M. E. 0. CHAPMAN, sworn on behalf of the plaintiff, testified as follows: By Mr. Rixey: Q. Mrs. Chapman, please state your name.. A. Mrs. M. E. 0. Chapman. Q. What is your occupation? A. Real estate agent. Q. With whom are yon connected? A. I. F. Truitt, Truitt Realty Corporation. Q. How long have you been a real estate salesman connected with Truitt Company!
25 Harry Barr v. T. iyiiles MacGlothlin. 23 Mrs. M_. E~ 0. Chap'f!l,an. A. I don't know, but I guess about nine or ten years. I am not positive about that, but i would" say nine or ten years. Q. Do you remember the occasion of Mr. MacGlothlin, tho gentleriia'n who sits here, plb;cing his 'house and "lot out ~n Algonquin Park with vour company fo1; sale f. ''.A.. That is right. page 12 ~.. Q. Do you reca.11 when. that was donet.. - A. I won't say positively, Mr."Rixey, but I think ln.tanuary some time. Q. January, '1938?.. A. I' trunk so. I am not positive about the date, but J anu ary or F'ebruary,? one or ~e ot~er... Q. January or February, 1938 or 1939?! :,.?, A ,. I' Q (.. A. That is r~ght,,january, 1~39.. Q..A.t_~vhat price, do )~OU recall, that he pl~ced it with you, the original pr~ce?.,,.,. A. When he called us out there to look at the house it was $15,000.00; and after talking it over with him he decided on $13, :.,..., :.. Q. Did you take anyone out there to look at the 1:>roperty to try to sell it?,... A. I did. Q. How many people. did you take~ do you recall? Mr. Sacks: Is that' mat~rial f The Court:. what is the materiality of iu Mr. Rixey: I don 't know that it is: Mr. Sacks: Then I object.. By Mr. Rixey: Q. Coming down to the transaction with Barr, page 13 } tell the jury, please, whether or not you got in touch with Mr. and -Mrs. Harry Barr with reference to the property. A. No. She called ffip,.. Q. Who called you?-. A. -Mrs. Barr called me on Thursday or Friday, I won't say positively which, and said she had looked at the house of Mr. Bonney 's over on Trouville avenue in Meadowbrook, and asked me wha.t J had to compare with that in price, and I said, "I have one but it is right much more money," and she said, "Could I see it today f" and I took her out and
26 24 Supreme Court of Appeals of Virginia. ill.rs. M. E. 0. Chapman. showed her the house. I don't remember whether it wasi around one or t.wo o'clock in the afternoon. Q. One or two o'clock in the afternoon Y A. I don't remember just what time. Q. Do you recall the day of the month and the month Y A. I just could not say the da.te. I don't remember the date, but I remember the- Q. Let me show you these contracts and see if that will refresh your recollection. See if your recollection is refreshed by these papers. A. Was the 18th day of February Thursday or Friday, do you remember? Q. The 18th was on Saturday. A. I would say it was Friday, F,riday or Saturpage 14 ~ day. I don't remember whether it was Friday or Saturday, but the same date this rig ht here was written.. Q. And the date on that is what? A. The date on this is the 18th. Q. February 18th, 1939! So I took her out and showed her the house, just one house, and she said it suited her if it did Mr. Barr, and she called me back and asked me to prepare a contract for sale and I said it would be kind of hard to do, that I didn't know whether Mr. Barr wanted to assume a mortgage or give a mortgage, and she called me back and made an eng ag-ement and said Mr. Barr was going to see it and would meet me there or would come bv mv house and take me out. Instead of that he met us there:., Q. Met you at Mr. 1\facGlothlin 's house? A. That is right, and so she called up that afternoon, her daughter did, and wanted to know if I had prepared the contract and I said it would be impossible to draw a contract for a man who had never seen the house, that I didn't know whether he wanted to pay cash or what terms, and after showing the house to Mr. Barr he made him an offer of this price. Mr. MacGlothlin didn't want to accept this at first Q. What is the price you refer to in there? A. Twelve. page 15 ~ Q. $12,000.00? A. $12,000.00; and he said. "I can't sell it at that price," and Mrs. Barr called me aside and said, "If you will get him on the line tonight I will give you the best gold watch in the store." I said, ",Just forget that," and they finally got together on this price and l\fr. MacGlothlin said,
27 Harry Barr v. T. Miles MacGlothlin. 25 ljfrs. M. E. 0. Chapman. '' Have you got a blank contracu" I said, "No, I haven't." Mr. Barr said, '' I am going to pay cash,'' and he said, ''I havq had so much experience with people backing out of contracts,'' and he pulled this out of his pocket and wrote it himself and made Mr. MacGlothlin sign it, sign a copy of that. Mr. Rixey: I would like to introduce that in evidence and a.sk that it be marked "Exhibit 1." It is dated 2/18/39, $12, purchase price, including venetian blin,ds, electric. range, building and lots, shrubbery, screens and shades, and general warranty deed. '' Herewith check $ to bind bargain. Settlement to be made on or before March 20th, 1939." It is signed T. M. MacGlothlin and Harry Barr. Over in the left in pen is "Western half of site 55, Algonquin Park." By Mr. Rixey! Q. If I understand it, that all occurred that same night that you met Mr. and Mrs. Barr there? page 16} A. It all happened the same day in the same evening. Q. Tell us the circumstances under which this second paper was signed. A. It was signed because they wanted a contract and that was done that night, you understand, and the next day-i have forgot.ten-i don't remember whether Saturday or Monday, but that contraet was prepared and Mr. Barr signed it. Q. Do you know who prepared it.? A. Mr. Truitt prepared that. Q. And Mr. Barr and Mr. MacGlothlin A. Mr. Barr signed it, yes, sir. Mr. Rixey: I intro duce that in evidence and ask that it he marked "Exhibit 2." Bv Mr. Rixev: Q. Mrs. Chapman, was there any doubt of the act that that wa.s a. legitimate sale? A. I don't think so. I didn't hear anything in regard to anything different.. Q. When did you next hear from Mr. Barr or Mrs. Barr ~th reference, to the matter? A. Mr. Rixey, I don't remember whether Mr. M:acGlothliu
28 !'. l - 26 ~~pr~~e Co1:1rt of :Appe~s of Vir~.. '..., }f.1 s~ JJ( E.J;J. G_liap'!J~O!»- called 01: 'Yhe.ther'Mr~.. B~rr. called me a11:d. ~aid they wanted to back out of the transaction on account of their page 17 ~ p.~1:1gp.t.er. g ett~ng ~a_rried ~nd, th~y.c~ui4. not affor.d to hve there 1f she was not there. Q. You SijY: you don't know whethe.r Mr. MacGlothlin called yquf. I,... :..,. : :.., ~.. I d~n~t know.whether he call~d me.an~ g~y~ _11:\e notice first., 1,,... :...,. Q. Did you ever have. &~Y notice that Mr. MacGlothlin wanted t9.back out. of the contracu:.,, A. Not. that I kno,v of, in any way, shape or ~rm: Q. You ~on 't know ~vhe:q. that µiessag~ ~me to you, that the Barrs.wanted to back out t A. I don't remember whether :Mr.. MacGlothlin called me and said Mrs. Barr was out-to the house fi~ st or whether Mrs. Barr called me and wanted the check back..,..... Q. Do.you recall,vhen tiiat was?.. A. No, but' after Sunday, after the claug hter-the danghte1: was going to get marric'd and go to Richmond to live. Q. I {ake.it that it was a few days after these contracts were signed f... :. A. I think it was a week afterwards that she called UJ.> and said- I don't know which one notified me first. Q: What' reply did you make.to. thau {..... A. I told her.i had nothing to do with it as agent, and Mr~ MacGlothlin had the check for $ and she page- 18 ~ would have to see him..q~ When was the next time you heard from Mr. and Mrs. Barr with reference to the matter? A.. Mr. Rixey, I can't recall just when the next period was, but Mr~ Barr said he would g et me to sell, resell, the property for his account and a.11 above. $12, :we would split the difference. In other words, if I got $13, l1e would give me $500.00, and if I got $ inore he would give me the difference. -.. Q. Is this the contract in reference to t.hau A. That is right. Mr.- Rixey: I offer tl1is in evidence and ask that it be marked '' Exhibit 8.'',.., I, J '' ti. t - J By Mr. Rixey: Q.' Wl10 prepared this letter, do yon know? A. Mr. Truitt, I think, prepared that. It looks like it.
29 Harry Barr v. T. Miles l\facglothlin. 27 Mrs E. 0. Chapman. By the Court: Q. Mister who? A. Mr. Truitt. By Mr. Rixey: Q. Is it signed by Mr. Harry Barr? A. That is rig ht. Mr. Rixey: I will read this. Note: Exhibit 3 was thereupon read. page 19} By Mr. Rixey: Q. Now, after receipt of that letter what did you do -with reference to trying to sell the house for the account of Harry Barr? A. I just kept on showing it just as if I had it before, and advertised it. Q. Did you have a.ny request from Mr. Barr after the receipt of that letter that I have just read with reference to extending it, extending the time, for settlement, on the Mac Glothlin contract t A. He called me and asked me if I had sold it and I told him no but that I had one or two g ood prospects, and he said he thoug ht it would be a good idea to ask for an extension, and I called Mr. M:acGloth1in and asked for an extension. We kept on advertising it. Q. Do you recall how long he asked for an extension? A. 30 days. Q. Did you call Mr. MacGlothlin and ask for it? Q. what did he reply? A. He said l1e would call you, but he thought it was all rig ht. Q. Diel you subsequently receive information that it was satisfactory to Mr. MacGlothlin to extend it! A. Tha.t is right. Q. Did yon transfer that information back to page 20 ~ Mr. Barr? A. That is right. Q. Do you recall, Mrs. Chapman, how long it was after the receipt of that letter of February 28th that you tried to sell the property for the account of Mr. Barr? A. Well, we advertised it during March and April and if
30 28 Supreme Court of Appeals of Virginia. Mrs. M. E. 0. Chapman. I am not mistaken I think it was sold around the first of May, but I don't remember positively because I don't remember the dates. Q. Did you finally sell it at the request of Mr. Barr or at the request of Mr. MacGlothlin A. At Mr. Barr's request., Q. You :finally sold it at Mr. Barr's request? A. Yes, sir. Q. To whom did you finally sell it? A. I didn't sell it the last time. Mr. Irving Truitt sold it. Q. He is the one who made the sale? A. The last time, that is right. OROSS EXAMINATION. By Mr.. Sacks : Q. Mrs. Chapµ1an, you liave been a real estate agent around Norfolk for how long? A. I would say since-i don't know, Mr. Sacks. I would say-i was with Leslie Measell aboutpage 21 ~ Q. At least 20 years 7 A. Let'"s see. It is I don't know, but I think a.round 24 or 25, something like that. Q. Shortly after the War? A. I know it has been a right good long time. Q. You are familiar with the real estate business and real estate values, are you not? A. Well, sometimes I think I am and sometimes I don ''t think I am. Q. And with real estate transactions T Q. You do know'that whenever a person sells a. piece of real e~tate his wife has to sign the deed; is that correct? A. Do they have to do that every time? I don't know that" to be perfectly frank. Q. You don't know that f A. Not necessarily. Q. That when a man sells a piece of real estate his wife doesn't have to sign? A. No, I don't know enough about law to know it. Q. Have you ever had any sales when the wife didn't have to sign? A. I am not familiar with that. I go out and sell page 22 ~ the property and Mr. Truitt attends to the business part of it.
31 Harry Barr v. T. Miles MacGlothlin. 29 Mrs. JI. E. 0. Chapman. Q. This property was placed in your hands by Mr. Mac.. Glothlin at $15,000.00Y A. No. He said he wanted to get that, but Q. And it was reduced to $13, A. That was the last price, that is right. Q. Did you know who Mrs. Barr was, Mrs. Harry Barr t Did you know her before that Y _ A. No, I didn't, never knew who she was until she called_ me. Q. How did you list that property for salet under whose name? A. Whose name 7 Q. Yes. A. I don't exactly follow you. Q. How did Mrs. Barr know that you were the agent for that property 7 A. She called me and told me she was about to make a purchase on Trouville avenue of M:r. Bonney's home and wanted to know what I had better than that, something in that same neighborhood. Q. Did Mrs. Barr know you prior to this t A. I could not tell you. Q. You didn't know her 7 page 23}.A. No, I didn't. Q. How did she happen to get in touch with you? A. I could not tell you. Q. Did you have any for sale sig u with your name on it on the property 7 A. No, I didn't.. _ Q. Did you have an advertisement of that property with your name on it f A. Not in my name. Q. In the newspaper? A. No. Q. Then she could not have found out about your having it for sale from the advertisement Y A. Mr. Truitt had an advertisement in the paper, Q. But not you Y A. No. Q. Did you know Mrs. Phillip BarrY A. No.. Q. Did you try to get in touch with Mrs. Phillip Barr? A. I called her and talked to her several times but never had an appointment with her. I would not know her today.
32 30 Supreme Court of Appeals of Virginia. Mrs. M. E. 0. Chaprnan. Q. You knew she wa.s in the market for a piece of property? A. I had heard it a couple or three years. page 24 f Q. Yon had tried to interest herf _A. I had called her on the phone but never got an appointment with her. Q. Di~'-t:you happen to get Mrs. Harry Barr on the telephone thinking that yon were calling or talking to Mrs. Phillip Barr? A. No, no mix-up at an. Q. None at allt.a. Not a partic.ie. Q. How did Mrs. Harry Ban.. get hold of you that dayt A. As I say, she called me over the telephone about noon time. Q. Where did you meet her f A. I went up there. She told me where she lived, and I think she was in an apartment called the Melrose on Brandon avenue. Q. You calied there and tool{ I1er out f Q. And she told you sl1e wanted her husband to see iu Q. And she said she would be around with her husband that night f A. No..She said she didn't know wi1ether he could go as he was so busy, but would get in touch with me in the afternoon. page 25 f Q. Did she call you f A. She made an appointment with me to meet them out there that evening. Q. He was going out to look at the propertyf Q. When did she tell you to prepare a contract for the propel"tyf A. She told me to prepare a contract for the property in less than an hour after I carried her home~ Q. Before Mr. Barr saw it?.a. Absolutelv. Q. Did the contract recite all the terms and the purchase pricef A. She told me to prepare a contract and Mr. Truitt said, '' There is no way I can prepare a contract. I don't know whether he wants to pay cash or assume the mortgage''.
33 Harry Barr v. T. Miles MacG lothlin. 31. Mrs. M. E. 0. Chapman. Q. Could you have asked Mrs. Barr Y A. She didn't know. Q. But just to prepare the contract Y Q. Mr. Barr came out with Mrs. Barr that same night! A. That is right. Q. On Friday night t A. I can't-i don't remember whether Fridav page 26 ~ or Saturday, but the same night this slip here was written. Q. The bargain was made at that time! A. That is right. Q. Where was Mrs. MacGlothlin f A. I have no idea. Q. WhatY A. I have no idea. Q. Did you know theny A. I did not. Q. Do you know nowt A. Where she is? Q. Yes. A. No, I haven't the slightest idea., Q. Did you know Mr. MacGlothlin was a married man f A. Sure, I knew he was a married man. Q. Did you ask him where his wife was so that you could get her signature! A. It was none of my business. because I turned the contract over to Mr. MacGlothlin. Q. Let's see if it wasn't your business. You work on a commission T Q. And if the sale goes through you get paid f Q. And if it doesn't go through you don't get page 27 } paid? A. That is right. Q. And it is to your advantage to see that it goes through Y Q. Why wouldn't it be up to you to see that everybody signed? A. Because Mr. MacGiothlin said the property was in his name and he listed it for sale. Q. Do you mean to tell the Court and jury that you have been selling real estate since 1924 and that you don't know
34 32 Supreme Court of Appeals of Virginia. JJf.rs. M. E. 0. Cha1nnan. a married person who sells real estate must get his wife to sign? A.. No, because I didn't know any woman was in the house. Q. You knew he was a married man? Q. Did you ever sell any property of your own while you were married? Q. Did your husband sign the deed Y Q. WhyY A. Because we were living together. Q. Did he sell any property of his own Y. A. Not that I know of, since we have been married. Q. You didn't ask Mr. MacGlothliu where his page 28 ~ wife was knowing that he was a married man? A. No, because I knew she was not living at the house that was being sold. Q, Did you know that divorce proceedings were pending, or anything like thau A. No. Q.. And you didn't ask him f A. No. Q. I want to ask you this and see if I can refresh your memory: Do you recall telling Mr. Barr, or Mr. MacGlothlin telling him in your presence, that Mrs. MacGlothliu was at the hospital or a sanitorium l A. I didn't get the first question. Q. Did you hear Mr. MacGlothlin tell Mr. Barr that Mrs. MacGlothlin was either at a hospital or a sa.nitorium f A. No, I didn't. Q. Did you hear Mr. MacGlothlin say he was going to try to get Mrs. Mac.Glothlin to sign? A. Not in my presence. Q. And he thought the deal would be all right so far a~ he was concerned, and he was going to try to get Mrs. Mac Glothlin to sign the deed 1 A. I never heard it. -Q. Do you know whether he tried to get her sigpage 29 ~ nature? A. No, because the contract was turned over to Mr. MacGlothlin. Q. And after that you lost all interest Y
35 Harry Barr v. ~. Miles MacGlothlin. 33 Mrs. M. E. 0. Chapman. A. As I told you before, my business is to sell. property and Mr. Truitt attends to all of the :finaneial details of the contract after it is signed. Q. As agent, wanting to consummate your ideal, don't you follow it up so that you can get your commissions t A. No. After the contract is signed that is the end of my affair. Q. When is the first time you heard that the Barrs didn't want the property? A. As I said just a while ago, I can't remember whether Mr. MacGlothlin called me and said they were out there or whether Mrs. Barr called me and asked me for the $ It 'is one way or the other, but I don't rem~mber which. Mrs. Barr did call me and said, "Mrs. Chapman, I ~ant my $ back". Whether Mr. MacGlothlin called me first and said t.hey were out there or whether she called :first, I don't- remember. Q. How many days after the contract was signed was that t A. As well as I remember, the following week. Q. The following week f A. Yes, the best I can remember. page 30 ~ Q. When they told you that what did you do? A. I didn ;t do anything. I told Mrs. Barr that as far as the transaction was concerned it was up to Mr. MacGlothlin. Q. You didn't try to induce Mr. Barr to change his mind and take the property, did you 1 A. No, not in any way, shape or form. Q. You did afterwards re-advertise the property for sale 7 A. Yes, after I got this letter. Q. After yoti got that letter? A. Yes, that is right. _ Q. You would not have adverti.sed it before you got that letter? A. I don't remember that. Q. I say would you have done it if you had not gotten authority? A. Would I have advertised iu Q. Yes. A. It was already sold. Why would I advertise a piece of property already sold? Q. I am asking you if Mr. Barr had told you the deal was off would you have advertised the property? A. I would have to get in touch with Mr. Barr.,..,;=;-
36 34 Supreme,' Court of Appeals of Virginia. ~rs.. M. E.. 0. Ohapma;n. Q. You would have had to have gotten written page 31 ~ authority for that purpose and that is why you got him to sign the letter,. is itt A. I would not have gone out and tried to sell a piece of property unless I had gotten authorization from somebody.. Q. would you want a. written or verbal authorization! A. Written. Q. You would not have advertised it if it had been verbalt A. I dontt know.. I would go and consult Mr. Truitt, of course. Q. If yon advertis ed on a verbal authorization yon would not want anything in writing? A. It depends. The legal part of tlie transaction I have nothing to do with it.. Q. When did you first advertise the property for sale t A. I don "t remember, :Mr. Sacks. Q. After- t.iiis date (handing pa.per to witness)? A. The property was advertised at tlle time Mr. MacGioth- Iin gave it to ns until it was sold to. Mr-. Brinson. Q. There was a break in it f.' A. I don't remember the date. Q..After yen sold it to Mr. Barr you discontinued advertising, or did yow continue the advertisements after the prop. erty was sold f page 32 r A. Not after it was sold the first time. We discontinued until Mr. Barr decided he wanted to resell it. Q. And that was after this date? A. I could not tell you about that. All I can tell you was we adve:rtised it the seeond time, but I don't remember thedate. Q. Was it before or after that dater A. I could not tell you. Q. Could it I1a.ve been before this dater A. I could n0t tell you because Mr. Truitt has charge oi the- advertising department and it is for him to advertise and I don't know. Q. You say you sold to<mr. Brinson Y A. I didn't sell it. Mr. Truitt made that transaction. Q. Everything was sold by Mr~ Truitt as agent, and yon were merely sub-agentf' A. I sold it the first time. Mr. Truitt had nothing to do with that. Q. Look at your contracts. Isn't this contract between
37 .. '..,..,. /.: ~. I ',. I. Harry Bafr ~- T. J\fil~s MacG1othlin..... ]frs_., M. E. 0~ Olidpman. 1' H~rry Barr as. v~ndee,.t._ Miles. J\facGlothlin, vendor, and 1 1 the Truitt Re_alty Corporatibn ~~ agent?.. ' :, :. : Q. It is a fact that when you handled a trahsactioh you. ~alfdled it for t1ie Truitt Realty Corporation? page 3~}. ~~ Yes..... : 1...Q. And not for your~elf?.. A. That.is. right Q. Si ply )ts agent to sell. tl~e proper_~y to Mr. Bair, and in the sam~. ~~~er,. h? sold the properiy ~?- M.r. Bri~son Y... A.. Mr. Ttmtt sold 1t, but I was agent m tlie first transaction and was not in the last. transaction... Q. r ~µ say. you.sold it.to Mr., Bri~SO~l ~t.mr. Barr's request!, A. He wanted to ~ell it but he didn't khow anything abo11t '.Mr.. Brinson, but. that is the man who bought the last time. Q. A.ccoi ding.to ''your conten~ion he wa~~~d tp _sen it tor pver $12,00Q~OO and not $ : A. A~k me that again. Q. According ~9 your lette.r he wanted to sell it above $ and not below that?.. Q. Why did you sell it for $10,000.00?.... A. I didn't sell it the last time. I am not familiar with the last transaction. a.t all.. ' Q. In addition. to the real estate that you lgreed fo sell! fo Mr. Barr, you ag reed. to sell the shrubbery, screens, shades,. venetian blinds, and electric ~~oki::ng 1 ange; is that page 34 ~ correct? _. A. That is dglit.... Q. Ho'Y old was tliat hbus e, Mrs~ Chapman y. A. As far as.. I know and remember, I tllink the house was finished in about Septembe1 01~ Octo~er,.m~y have been last November... Q. Wh:at year? A. In other. words,. prac~ically fl new houf:!~... Q. Practic~Ily a new house? Q. So all of these thi~gs. were p1:~ctically µew~. th~. sh~des and.e~erythingt...,.. :, ',... A. Ev~rytµ.ing i~1. there was new as far as I know. Q. Yott knbw the house was put up in November or preced ing N ovem bet, 1938? A. About that time. 35
38 36 Supreme Court of Appeals of Virginia. Mrs. Iii. E. 0. Chapman. Q. What was the value of that property that you sold to Mr. Barr! A. I don't know. Q. In your opinion? A. When it comes to values, I will admit I don't know anything a.bout values, but it was a brand new house, a beautiful liouse, and had fluted woodwork and things of that kind. Q. Was it worth as much when Mr. Brinson page 35 ~ bought it as w~en you sold it to Mr. Barr? A. When it comes to values I could not tell you. Q. Do you think it fair to say it was worth as much then as when you sold it to Mr. Brinson A. I don't see any reason why it should not have been. Q. The last time was it in better shape than the :first time! In fact it was in better shape, was it nou A. As far as the yard and shrubbery it may have been, of course. Q. It was in better condition when Mr. Brinson bought it than when Mr. Barr purchased iu A. As far as the yard was concerned, but not inside. Q. Mrs. Chapman, I think you testified that Mr. Barr had requested that you get an extension from Mr. MacGlothlin? A. That is after we had had the house and advertised it, and we had had several prospech:; on it, 01ie or two who wanted to trade, and he said he would appreciate it then if we would get an extension on this and keep on trying and '' I believe you can do it'', and I fmid I dicln 't see any reason why I should not because it was a beautiful house and a nice location. Q. Mr. Barr requested the exten~ion Y A. Th.at is right. page 36 ~ Q. Did anybody prepare a written extension A. No extension except just this. Q. I show you a paper dated March 15th, 1939, with reference to a contract to purchase. Look at it. First I want to askyou- A. Just a minute. Q. Have you seen this before? A. I don't remember, to be perfectly frank with you. Q. You don't remember it? A. No. Q. You don't say you haven't? A. I don't exactly get that. Is that an extension for- Q. I will read it. It. is dated March 15th, 1939, and ad-
39 Harry Barr v. T.. Miles MacGlothlin. 37 Mrs.. ljii. E. 0. Chapman. clressed to Mr. T. ]\files l\facglothlin, Norfolk, Virginia.. "Dear Sir:,vith reference to any contract to purchase the property on North Shore road from you, I will appreciate it if you will extend the. date of settlement for thirty (30) days from the time set forth in the contract, subject, of course, to the conditions of the contract. Very truly yours,'' and a line to be signed by Mr. Barr, and also "I agree- to the above extension", and a line to be signed by Mr. MacGlothlin. A. vvho was it signed by? Q. Nobody. There appears this, "I agree to the }Jage 37 ~ above extension'' to be sig ned by Mr. MacGlothlin. Q. The.first part is apparently a request on the part of Mr. Barr to Mr. MacGlothlin and the second was his, Mr. MacGlothlin 's agreement 7 A. I don't know about that.. Q. Don't you know that was sent to Mr. Barr by either you or Mr. Truitt for Mr. Barr to sign it and he refused to sign it?. A. No, I don't know. Q. Yon never advised Mr. Barr that you had a customer for $10,000.00? A. I didn't bec.ause I didn't handle the last transaction.. You see Mr. Truitt handled that. RE-DIRECT EXAMINATION. By Mr. Rixey: Q. Mr. Sacks asked you some questions with reference to anything being said out there on the da:y that the contract was signed between Mr. MaeGlothlin and Mr. Barr which I u~derstand was February 18th, anything being said about Mrs. Mac Glothlin signing the contract. Was anything said about that Y A. If it came up I don't remember. I don't remember a thing in the world about it because Mrs. MacGlotl11in was not living at the house at that time and Mr. MacGlothpage 38 ~ lin had notified us that the property was in his name, and if it was mentioned I don't know anything about it. Q. Do either one of these contracts purport to be contracts with Mrs. MacGlothlin? Look at them, please. A. No, because Mr. MacGlothlin gave us the property to sell and said it-was in his name.
40 2. ~ : i I ~ ~ l.! t. ~ ' l ;. ' 1. : 1 i I. i.. : - I. :,.'. 38 Supreni~ Court of (Appe als of' Virginia.. -. ~ : _ _,_ J~rs.!J~. E.: 0~ Chap~tan: Q. The contract is between Mr. Barr and Mr. MacGlothlin and the Truitt Realty.Corporation Y A. Tha~ i$ right. RE-CROSS EXAMINATION.. - ', ('. ').,'t '' \" ' ' I ' ' {l By Mr. Saekis :,., Q.. Mrs~ Cbapfua~, one tt'1e~jiop z... Yo~: thi,~k.,that, e~~~ married IDfA:P. 1Vho hsts property with your con~e'rn or with any real e.state agent,..as far as that is concerned, who may be living wijh his wife; if,the prop~rty.is in his name he lists it in his name. A. Asli"me that ~gain.,... Q. A ~a. ried mai1 living with his 'wife- A. Yes~.. '. I Q. Wh.o owns a piece of property-.a.. Yes.... Q. In his in~ividual. nam~--., Q~ If he 1 ii~ts the P.roperty wit11 yo:n. to b~. s.9idj1~, ~vih Iis~.,.... it i~ his name and not ip. h~s wi:f~~s.; is-.that coro; page.39 -~ r~gt.y A..I have always found whoever_ come~. m tn~ office.. to.ii.st the,property, whether a ma~ Qr his. wife, we lisf. it in'their name.. If.the man.comes in we 'list it in his nam~ and ffthd'wo:diaii comes in we list it in her name but as far as the legal.pa:rt.of that is- concerned, I have nothing to do with it,.and I never ask tha.t ques_tion B)/Mr..' Rixey:_ _.,. ~..... Q. Do.yq-q li~t.it. in.the nall)e.of the o:wnerf..,.... A., In the name of whoever comes in. If it is a woman we list it..in her. ilame aiid if it is a man we list it in his name. Q. I sh 'v yon. a picture and ~s~ yo_u if you can identify thau.. A. Yes; sir. Q. Is.that a.pich;1re- of t_he prop~rty1... A. Yes : Mr. Rixey: I offei~ that in evidence as "Exhibit 4t;.
41 Harry Barr v. T. :Miles l\facglothlin. 39 page 40} T. MILES MacGLOTHLIN, the plaintiff, being first duly sworn, testified as follows: By Mr. Rixey: Q. State your name, please. A. T. Miles MacGlothlin. Q. vvhat is your occupation, siry A. Warehouse Supervisor at the Naval Supply Depot at the Na val Base. Q. How long have you been employed by the United Statei; Goverlllllent? A. Since December, Q. Prior to February 18th, 1939, were you the owner of this property here shown in this picture marked Exhibit #41 A. Yes, I was. Q. When did you buy the lots, Mr. MacGlothlint A. I bought the lot in January, Q. When did you have the house built? A. The construction of the house was started around the middle of January, Q. I believe you a re married, or were married, were you. nou A. Yes, I was. Q. State whether or not you had trouble with your wife and you and she separated some time in-when page 41 } was it you did separate? A. She deserted on the 30th day of January, Q. 1939? A. This year, yes, sir. Q. About that time what did you do with reference to the property A. Went clown and listed it with Mrs. Chapman. ' Q. After you and your wife separated did you want the property any longer 1 A. No, sir. It was too much room for me. Q. You listed the property with Mrs. Chapman in January, 1939? A. Yes, sir, a day or so after she left. Q. At what price did you list it Y A. I told her I thought I ought to get $15, for it and she said it was a bad time to sell real estate and finally I agreed on $13, Q. Did you continue to live in the house 1
42 40 Supreme Court of Appeals of Virginia. T. Miles MacGlothlin. A. Yes, I stayed there. Q. Coming down to when you had some contact with Mrs. Barr with reference to the property, tell the jury when that was and what occurred. A. That was on Friday, the 17th of February, in the afternoon. Mrs. Chapman called me and asked me to meet hejat the house, that she had a prospect who wanted page 42 r to look at it, and I met her there. - Q. Do you recall about what time that was A. I think around about the middle of the afternoon, the early pa.rt or middle of the aftcffnoon. She called me at my office and I met her there and she brought Mrs. Barr and her daughter, and they went over the house. I showed them all around, all through it, and they wanted to get Mr. Barr over that afternoon. They were anxious to buy it apparently. They called Mr. Barr and he was apparently busy and could not come that afternoon, and they said they would try to get back that night. Mrs. Chapman called me and said they were coming and they came probably around 8 :00 o'clock, possibly a little later, and Mr. Barr came and his wife and I showed him all through the house and told him all about it. Q. Mrs. Barr and her daughter came out in the mid afternoon? A. In the afternoon, yes. Q. Was it the same night that they returned with Mr. Barr? A. That is right. Q. When did they return with Mr. Barr? A. They caine back the same night. Q. About what time? page 43 r Q. About 8 :00 o'clock, probably a little later. Q. State what occurred at the night meeting. A. Mrs. Barr and her daughter had been all through the l1ouse, and, of course, Mr. Barr went all through it, in the attic, and looked all under it, and wanted to know the price and I told him $13,~00.00 and he kept trying to get the price down. I was very anxious to get rid of the place as I didn't want to live out there by myself, and I saw he apparently wanted it very badly, and I finally told him I would let him have it for $12,500.00, and he said $12,000.00, and I sta.yea around there and refused two or three times, and finally I got to thinking it over and I said, "All right, I will take $12, for it". He asked Mrs. Chapman if she had a. formal contract with her and she said no, and I picked up some scrap paper around the house and Mr. Barr wrote this little writing that you ha.ve exhibited to the Court.
43 Harry Barr v. T. Miles MacGlothlin. 41 T. Miles MacGlothJ,in. Q. Is that the paper marked Exhibit #17 A. Yes, sir. He gave me his check for $ and I gave it to Mr. Barbour Rixey the next morning. Q. In whose handwriting is that pencil writing? A. All of the pencil is Mr. Barr ~s own handwriting. Q. Is that Mr. Barr's signature! A. That is Mr. Barr's signature. Q. Is that your signature there f page 44 } Q. Who wrote this over here in the left-hand lower corner in ink T A. He asked me to put the number of the block and lot on here so that he could identify it and I said all right, and I had my pen in my hand and I wrote on there '' Western half of site 55, Algonquin Park". Q. That was the description of the property generally? A. The description, yes. ~ Q. You say you took this paper down to Mr. Barbour RixeyY A. Yes, sir. Q. What advice did he.give you with reference to it! Mr. Sacks: I object to any conversation that took place in Mr. Rixey's office. J\fr. Rixey: I will withdraw that. By Mr. Rixey: Q. Tell the jury what. you did after exhibiting that to M:r. Barbour Rixey and getting advice from him? A. I went back and told Mrs. Chapman to draw the deal up on a f 01mal contract, which they dicl, and I signed it the following day and Mr. Barr. Q. That is the paper marked Exhibit 21 Q. Was anything saicl about your wife signing the contract! page 45} A. No, that wasn't mentioned by anyone. Q. Did 1\if r. Barr desire the property that night? He was very anxious, seemed to be tickled to death with his bargain, and the whole family did. Q. Did he give to you the $ to bind the bargain that has been mentioned here Y ~- He gave me a check, yes, sir, for $ Q. You were the owner of that property, were you?
44 42 Supreme Court of Appeals of Virginia. T. Miles MacGlothlin. Q.,v ere yon prepared to give good title to it-f A. I think I was, yes, sir, and I felt that way about it. Q. Do you know anything about negotiations for your wife to sign the deed? Do yon know anything about that Y A. No, I don't. Q. Mr. Barbour Rixey attended to that!.a. Mr. Barbour Rixey attended to that. I wasn't in contact with her after she left. Q. You did have a report that Mrs. :MacGlothlin required you to do certain things in consideration of her signing the deed? Q. And you knew that l page 46 ~ Q. VVerc you willing and ready to meet her conditions with reference to thatf A. Yes, I was. Q. I believe there was a mortgage on this property, was there not? A. Yes, that is trne. Q. Yon were able and willing to pay off that mortgage out of the purchase price of $12, and give good title 1 A. That is right. Q. Now, after that you were :finally notified by someone that Mr. Barr would not ta.ke title to the property, were you T.A. That is right. Q. Do you recall when that was T A. That was, I believe, along about the time the extension was up and he would not take it. Q. Tell the jnry al)out that extension, if you will, what you know about it. A. Mrs. Chapman called me and said she had been unable to re-sell the property for Mr. Barr and that he wanted an extension of thirty days so I give her a longer time to selj it. I told her at first I didn't want to do it because I was anxious to get out of the house and get some place more convenient for me, but after thinking it over I page 47 ~ sa.id, "Well, if it will help him out I will agree to it". Q. So you agreed to extend that time at the request of Mrs. Chapman, which she told you came from :Mr. Barr? 1 Q. You agreed to extend it thirty days Y
45 Harry Barr v. T. Miles MacGlothlin. 43 T. Miles MacGlotluin.. A. Yes, sir. I really didn't want to. Q. After that extension period had expired you were notified Mr. Barr would not take title? Q. What did you do with reference to it, A. I went to see Mr. Barbour Rixey a.bout it and he said we would have to give them notice that if they would not take it we would have to re-sell it and expect the difference from him, Mr. Barr. Q. You :finally did sell it. A. I told Mr. Truitt to go ahead and try to get the money for it, and this was the best offer he got. Q. You finally sold it through Mr. Truitt for how much money? A. $10, Q. Did you pay Mr. Truitt commission on that sale to Mr. Brinson? A. Yes, I paid him the commissions. Q. Now, I ask you to go back to the period of page 48 ~ the signing of these contracts which was somewhere, you say, around February 18th. Shortly after that, state whether or not either Mr. or Mrs. Barr, or both Mr. and l\frs. Barr, came to your house? A. Yes, Mr. Barr and Mrs. Barr and his brother, Phillip Barr. Mrs. Barr called me on the telephone and wanted to know if she could see me a. few minutes, and I told her yes, if. she could come early, and that I would wait, and she came out with her husband and l\f r. Philip Barr. Q. Do you recall how long after tlie first contract was signed that was 7 A. A few days after that, I don't recall how many. Q. What did they tell you? A. They came out and wanted to cancel the agreement, and they told me their daughter had become engaged to some doctor or medical student and she was going to get married and refused to Ii,,e with them and they had depended on her living out there and they could not use the house unless their daughter stayed with them. I told them I was sorry about that but that as far as I was concerned they had bought the house and I expected them to take it. Q. You refused to release them Y A. Yes, I did.
46 44 Supreme Court of Appeals of Virginia. T. Miles MacGlothUn. page 49 ~ CROSS EXAMINATION. By Mr. Sacks: Q. You had a right nice home out there, did you not f A. I thought so, yes., Q. And but for the fact that you had had difficulties you probably would not have sold it at that price? A. WhatY Q. If it had not been for your domestic difficulties you would not have sold it for that price? A. I.probably would not have sold it at all. Q. Where was Mrs. MacGlothlin on the 18th day of February! A. As far as I know, she was out in Meadowbrook where she was living. Q. So far as you know she was in Meadowbrook Y Q. Was she there? A. 'What? Q. Was she at Meadowbrook? A. I don't know. That is where she took up her residence when she left home, but whether she was there on the 18th, or not, I don't know. Q. When did she leave home? A. The 30th day of J auuary, Q. And about a month later you didn't know page 50 ~ where she was. Did you know that she would have to sign the deed Y A. What? Q. Did you know that Mrs. MacGlothlin would have had to sign the deed along with you? A. I expected that she would, y.es. Q. She had to sign the mortgage for you that you gave on the property? A. That is true. Q. What effort did you make to locate Mrs. MacGlot.hlin to get her to sign that deed that you would have had to execute?. A. I don't know-what effort did I make to find her i Q. Yes.. A. Her attorney knew where she was. Q. Her attorney? I found out about that time where sl1e was living, too.
47 Harry Barr v. T. Miles MacGlothlin. 45 Q. Where did you find out_she was f A. On Runnymede Road in Meadowbrook. Q. On the 18th of February? A. I didn't know where she was at in February but that is where she took up her residence when she left home. Q. You had not seen her Y A. I had only seen her passing on the street. page 51 } Q. Was she at some sanitorium or some hospital? A. Not that I know of, not then. Q. When did she go there Y A. You mean when she-- Q. To the sanitorium or hospital Y A. She went there on the 8th of J rine the last time..., Q. June of this year1 A. That is right. Q. When was the first time you tried to get Mrs. Mac Glothlin to sign the deed 7 A. I didn't have anything to do with that. That was all handled by the attorneys. I had no contact with Mrs. Mac Glothlin, not personally, after she left home. Q. Did your lawyer get her to sign it on or before the 18th of March? A. I think she signed it, yes. Q. Before the 18th of March T A. Just when she signed it, I don't know, but I understood she was ready. Q. Don't yon know she signed the deed about the time the divorce was granted on condition that you let her have certain furnishings 7 A. I don't know just exactly when she signed page 52 } it, but I lmow the deed was ready. The attorneys were handling that detail. I had no contact with her at all. Q. You were interested in the divorce case 7 A. I guess I was. Q. Your wife got a divorce from you instead of you from her? A. I didn't contest it. Q. She filed a cross bill. Don't you know this matter was ref erred to a Commissioner and you had agreed to give your,vif e the following articles- Mr. Rixey: Ref erred to a Commissioner! Mr. Sacks: Yes, to Mr. Dick Ruffin.
48 46 Supreme Court oi Appeals of Virginia. T. Miles MacGlothlin. A. None of the real estate was ref erred to Mr. Ruffin. By Mr. Sacks : Q. You got the cook stove, did you not f A. Yes.. Q. Was, tliat the same cook stove that Mr. Barr was to gett That was mine. Q. Did yon get it or did she get itt A. I got it. Q. Did you have another range there f A. No. Q. Whatf page 53 r A. No. There was only one stove and that was. an electric range. Q. Wasn't that given to Mrs. MacGiothlin f A. Not that I know of.. Q. Don ''t yon know tha.t the deed was signed by her at the time she got this stuff which was certainly after the 20th of April, 1939f A. After the 20th of Aprilf Q. Yes. A. No. Q. You don 1 t know that l A. I don't know that, no. Q. Yon say shortly after Mr. Barr had signed that contract they catne to your house and told yon that they didn't want to go through with it? A. That is right. Q. And gave you as their reason that their daughter was getting ma tried T A. Yes, and was not going to live with tl1em. Q. Do you recall how many days that was after the contract was signed? A. Not exactly. It was within a short time though. Q. Was it within a weeky A. I think it was, yes. Q. What did you do about the property? page 54 r A. I didn't do anything. I just told Mr. Barr I was holding him to his contract.. Q. You didn't tell Mr. Truitt to resell it then, did you 1 A. No. Q. At that time f A. No, sir. Q. You didn't get after :Mr. Barr after that to find out why he didn't take it?..
49 Harry Barr v. T. Miles MacGlothlin. 47 T. Miles MacGlotlilin. A. No. I never had any further conversation with him at all. Q. Just let the matter resu A. WhaU Q. You just let the matter rest? A. Yes, I had nothing to do with it. It was his house as far as I was concerned. Q. Were you interested in finding out what was going to happen to your property? A. I naturally expected him to get the house or the money to pay for it. Q. He had told you that he wasn't 7 A. He hadn't told me anything. Q. Didn't you say- A. Other than he came out that night and wanted to back out of the contract and he was threatening to back page 55 ~ out: He wanted me to let him out. He asked me to tear up the contract and I told him I could not do it. Q. Did you expect him to buy it on the 18th Y A. What? Q. Did you expect him to buy it on the 18th? A. Yes, until Mrs. Chapman called me up and told me he wanted an extension and I agreed to it. Q. You agreed to the extension Y Q. Did you sign any agreement for the extension Y A. No. I know nothing about that. Q. You know nothing about that? A. No, nothing about it. Q. You didn't agree in writing to the extension Y A. No. I signed nothing. Q. After Mr. Barr clidn 't buy it, didn't take the property,, you put it in the hands of Mr. Truitt for re-sale; is that correct? A. Yes, on advice of counsel. Q. When was that done, Mr. MacGlothlin? A. Approximately, I would say, probably the latter part of April, somewhere along there. I don't remember the exact date. Q. You lived in that house until Mr. Brinson moved in? A. Yes, stayed there until about a day or so bepag e 56 ~ fore he moved in. Q. Was there any difference in the house be-
50 48 Supreme Court of Appeals of Virginia. J.B. Rixey. tween the time you sold it to Mr. Barr and the time Mr. 'Brinson bought it f A. None to my observation, no. Q. in o difference in the value 1 A. I don't think so. Q. In fact it was in a lot better shape, w~s it not, as far as the shrubs were concerned t A. The grass may have been cut a couple of times but I don't think anything had been spent on it. Q. It was worth just as much when Mr. Brinson bought it as when Mr. Barr agreed to buy iu A. Yes, I think so.. Q. Did you make any improvements on the property between the time you agreed to sell it to Mr. Barr and the time Mr. Brinson bought it f A. No. Q. How long had that house been occupied, 'Mr. MacGlothlin, before Mr. Barr agreed to buy iu A. I moved in in the fall of 1938, the late fall. Q. You had been there probably five or six months Y A. Just a very short time. Q. And it was a new house? page 57 ~ A. Yes, brand new when I moved in it. J. B. RIXEY, sworn on behalf of the plaintiff, testified as follows~ By Mr. Rixey: Q. Please state your name and occupation. A. J. Barbour Rixey, Attorney at Law. Q. Mr. Rixey, were you i epresenting Mr. T. Miles Mac Glothlin, the plaintiff in this suit, with reference to the sale of this property to Mr. Harry Barr after the sale was consummated f A. I was. Q. I show you a paper marked Exhibit #1 and ask you if you have seen that before; and if so, when was the first time you saw it? A. Mr. MacGlothlin brought this to my office I think on Monday following the date on the paper, which I think was on Saturday, I am not certain, but I think February 18th, which was on Saturday, and I think he brought it to my office on Monday morning. I am not positive as to whether it was Monday or what date, but he brought it to page 58 ~ me. He brought it to me and showed it to me and said he had sold his property to Mr. Barr..
51 Harry Barr v. a-'.. Miles MacGlothlin. 49 J.. B. Rixey. Q. What adyice did you give him with reference-to that paper? A. I told Mr. MaeGlothlin I thought it would. be wise for him to have a regular real estate contract signed, and he left my office and came back later, and I don,t know whether it was the same day or several days later, and brought.me a regular real estate contra-0t. : Q. Is that the paper he brought you, marked Exhibit 2T A. Yes, that is the paper he brought back.. Mr. Sacks: This is self-serving. He can testify to what he did with it. You are going to hav:e Mr. Ashburn here, I suppose. By Mr. Rixey: Q. Did you prepare a deed to the property! A. I prepared a deed to the property conveying the property to Mr. Barr. Q. And it was necessary for whom to sign that f A. It was necessary for Mr. MacGlothlin to sign it and Mrs. MacGlothlin to sign it.. Q. At that time were Mr. and Mrs. MacGlothlin living together! A. They were not. Q. Was a divorce suit pending at that time Y page 59} A. A divorce suit was pending at that time and Mr. Willard Ashburn was representin~ Mrs. Mao Qlothlin and I was representing Mr. MacGlothlm. Q. Mr. W. R. Ashburn? A. Mr. w. H. AElhburn with offices in the Citizens Bank Building. Q. He was representing Mrs. MacGlothlin t A. That is right. Q. I show you a paper and ask you what that is. A. That is a letter written hy.: myself to Mr. Ashburn as attorney for Mrs. MacGlothlin acl.vising her o:f the fact that 1\fr. MacGlothlin had sold the property in Alg onquin Park to Mr. Barr. Q. Did, you enclose the deed with that letter t A. I am not positive I enclosed the deed with the letter, but I think I did. Mr. -Rixey: I offer that in evidence and ask that it be marked "Exhibit 5". The Witness-: I know I furnished deed to Mr. Ashburn to
52 50 Supreme Court of Appeals of Virginia. J.B. Rixey. be signed, but whether with that letter I am not positive. The letter does not say so. Mr. Rixey ~. It is -dated March 10th, Note: The letter was read. By Mr. Rixey: Q. What reply did you have from 1\fr. Ashburn? page 60 ~ Mr. Sacks: I think we are going outside of tbe issue here, a letter between Mr. R.ixey and l\fr. Ashburn representing the husband and wife. We are not parties to that. The Court : It is simply to show the efforts on their part to get Mrs. MacGlothlin to sign the deed, I suppose. For that reason it seems to me it is admissible. Mr. Sacks: We save the point. Note : The last question was read. A. Several days after I had written that letter Mr. Ashburn stopped me in the lobby to the entrance of the Citizens Bank Building and said he had talked- Mr. Sacks: Isn't that. hearsay, what Mr. Ashburn told himy The.Court: I suppose so, but it is in pursuance of this same effort. Mr. Rixey: One of their defenses is that we could not furnish good deed. The Court: l think it is admissible. Mr. Sacks: We save the point. A. (Continuing) Mr. Ashburn stopped me in the lobby and said lie had discussed the matter with Mrs. MacGiothlin and she was willing to sign the"" deed conditioned upon Mr. Mac Glothlin turning over to her several thing s which page 61 r Mr. MacGiothlin admitted belonged to her. I said, ''If tliat is true it is fine and we will deliver whatever yon want and the deed can be signed". By Mr. Rixey = Q. Did you take up with Mr. MacGiothlin whether or not he was willing to conform with the conditions placed upon the signing of the deed by Mrs. :M:acGlothlin?
53 Harry Barr v. T. Miles MacGlothlin. 51 J.B. Rixey. A. I did, and Mr. MacGlothlin was willing to comply with the wishes of Mrs. MacGlothlin. Q. Did you follow that up immediately with request that Mrs. MacGlothlin sign the deed 1 A. Mr..Ashburn notified me at a later date that the deed had been signed and he held it in his office. I never went and got the deed because in the meantime Mr. Barr refused to accept title to the property and gave it up entirely., Q. Had you received any notice of the extension date that had been agreed upon?.a. Mr. MacG lothlin came to my office- Mr. Sacks: I am bound to object to this testimony. It is purely hearsay. Mr. MacGlothlin came to his office and made statements to him, and it is simply self-serving. The Court: It is one of the exceptions to the hearsay rule, as I understand it. I understand one of the page 62 ~ contentions here is that Mrs. MacGlothlin would not sign the deed, and it is to show what efforts were made to get her to sign, I suppose. Mr. Sacks: He can prove it by Mr. l\facglothlin but not by what Mr. MacGlothlin told Mr. Rixey. The Court: It seems to me it is different from the hearsay rule. Mr. Sacks: We save the point. 'A. Mr. McGlothlin came to my office and said Mr. Barr wanted an extension of settlement for the property. He stated that he had-was trying to re-sell the property. By Mr. Rixey: Q. That Mr. Barr was trying to re-sell jt? A. That Mr. Barr was and had authorized Mrs. Chapman to re-sell the property for his account and they wanted an extension. Mr. Sacks: Your Honor understands my same objection applies to all of this testimony. The Court: Yes. The Witness: Mr. l\facglothlin asked me if it was all right for him to grant the extension and I told him I could see no reason why an extension could not be granted if it were for the purpose of Mr. Barr selling the property and it would be all right to grant the extension.
54 .. 52.Supreme Court of Appe~ls of Virginia. J.B. Rixey. page 63 ~ By Mr. Rixey : Q. I show you another paper and ask you if you wrote that letter and sent it? A. I wrote this letter. to Mr. Harry Barr on March 2oth, 1939, some time after Mr. MacGlothlin had asked me about the thirty-day extension on the property. I wrote this letter to 1\f r. Barr on March 20th. Mr. Rixey: I offer it in evidence and ask that it be marked "Exhibit 6". I will read it. By Mr. Rixey: Q. Did you receive any reply to that letter 1 A. I received a call from-no, the reply to that was a letter from Mr. Theoflore Garnett. Q. Who did Mi. Gai nett represent t A. Mr. Gai nett was representing lvfr. Harry Barr. Q. I ask you if this is the letter you received in reply? A. That is the letter I received in reply. Mr. Rixey: I offer it in evidence and ask that it be marked ''Exhibit #7". Mr. Sacks: Read that, too. Mr. Rixey: It is on the stationery of Mr. Theodore S. Garnett, and is dated April 6th, Note: The letter was read. By Mr. Rixey : page 64 ~ Q. I show you another paper and ask you what that is. A. This is a l~tter I wrote to Mr. Garnett in reply to his letter of April 6th. Mr. Rixey: I offer that in evidence and ask that it be marked "Exhibit 8''. Note : The letter was read to the jury. By Mr. Rixey: Q. What happened between you and Mr. Garnett after that, Mr. Rixeyt. A. Mr. Garnett crime to my office. I made a note of the date. Q. Do you want that note of it!
55 Harry Barr v. T. Miles MacGlothlirl. 53 J: B. Rw;ey. A. I would like to have my ilotes to refresh my recollection, please. That was on April 12th, Q. wait a minute. That is the first conversation you had. I have a letter here on the 11th. Tell us what that paper is~ A. I wrote this letter to Mr. Garnett on April 11th enclosing a copy of the deed from Mr. l\facglothlin to Mr. Harry Barr and advised him that we would expect a settlement no later than April 18th. Mr. Rixey: "Exhibit 9". I will read this and ask that it be marked By Mr. Rixey:. Q. All right. You say the next was a conversapag e 65 ~ tion Y.. A. The next day, on April 12th, Mr. Garnett came. to my office a:rid the first thing he said when he came in was ''We want to see the deed to. the. property''. I to~d him M:r. Ashburi1 had the deed in hi~ office upstairs abo~e me and the deed was duly executed by Mrs. :MacGlothlin. He said, "That is all. right th~n ". whether he ever went to look at the deed, I don't. know. The deed was never mentioned again betweeti Mr. Garnett and myself. At that time Mr. Garnett said that Mi. Bart could not afforc"l to buy the property, that he, Mr. Garnett, h~d tried ~o secure a loan Ql) the property sufficient to pay the difference between what the loan would have to be and the purchase price and had been unable to do so. We talked for sotne tiine and it was agreed then that Mr. Barr could have a week or two longei" to see if he could find a pm chaser for the property ~nd if, in the meantime, :Mr. MacGlothlin- found o~e he would let Mr. Gar.: nett know. That was the effect of the conversation on that dav. Q. You say that conversation occurred on April 12th T A. rrhat conversation occurred on April 12th. I made a note after Mr. Garnett left my office. Q. what was your next conversation with Mr. Garnett? A. The next conversation was on May 3rd. In the afternoon of that day Mr. Garnett advised me definitely that Mr. Barr would not take the property. page 66 ~ Q. All right.. I show you this paper and ask. YOU what that IS?. A. That ~is a letter I wrote on May 8th to Mr. Garnett.
56 5.~ ~upreme Court of Appeals of Virginia. J.B. Rixey. Mr. Rixey: I will read it and offer it in evidence and ask that it be marked" Exhibit 10". By Mr. Rixey: Q. Is this the 1 eply you had from Mr. Garnett in answer to your last letter t A. It is. Mr. Rixey: I offer it in evidence and ask that it be marked "Exhibit llh. It is dated May 9th, 1939, and I will read it. By Mr. Rixey: Q. What was the next conyersation you had with Mr. Garnett! A. The next conversation I had with Mr. Garnett was on May 20th. At that time I communicated with Mr. Garnett and told him that Mr. l\facglothlin had been trying to sell the property and that he had an offer for the property of $10, and I desired to report it to Mr. Garnett so if his client still wanted to take the property at $12, I thought it could be arranged. Mr. Ga1 nett thanked me for telling him about it and he said he would report it to his client and would let me hear from him. About 30 minpage 67 ~ utes later ~r. Garnett called me on the telephone.and said he had talked with Mr. Barr regarding it and Mr. Barr said he had nothing more to say. Q. Is that the last? A. That is the last conversation. Q. The last conversation Y A. The last conversation, so far as I recall, I had with Mr. Garnett in the matter.. Q. I will ask you to identify this paper. A. This is a letter I wrote to Mr. Garnett under date of June 7th relative to the same matter. Mr. Rixey: I will read it and ask that it be marked '' Exhibit 12' '. It is dated June 7th, By l\fr. Rixey: Q. Did you receive any reply from Mr. Garnett to that letter!. A. I don't think so. Q. This is the last one, I believe. Will you identify that 1 A. This is a letter I wrote to Mr. Garnett on June 16th after sale of the property had gone through to Mr. Brinson.
57 Bar-ry Barr v. T. J\'Iiles MacGlothlin. 55 J! B, Rixey. Note: The letter was read and marked "Exhibit 13". By Mr. Rixey:. Q. Now, Mr. Rixey, was any objection ever page 68 } raised at any time by Mr. Garnett, the attorney for Mr. Barr, to the property being sold, re-sold, or $1(),000.00Y A. There was not. CROSS EXAMLNA.TION. By Mr. Sacks: Q. Mr. Rixey, you are a brother and a partner of Mr. John Rixey, are yqu not? - A. That is right, sir. Q. On March 10th, 1939, when you wrote Mr. Ashburn ask - ing him to try to get Mrs. ~~acglothlin to sig n that deed, what was your reason for calhng on J\fr. Ashburn? A. Mr. Ashburn was the attornev for Mrs. MacGlothlin and I didn't think it was wise for :rite to go directly to her when she was represented by an attorney. Q. W ~:mldn 't the wife ordinarily sign a deed unless there was some trouble Y A. Mr. and Mrs. MacGlothlin were not living together at the time and a divorce suit was pending, and I would not go over an attorney's head and interview his client. Q. She actually refused to sign it Y A. Mr. Ashburn stated she refused to, but later she agreed to sign it. I haven't talked to her. Q. Don't you know she agreed to sign that deed after the matter was settled in Court, which was around the 20th of April? page 69 } A.. No, before. Q. When did she actually sign it? A. I think the ack~owledgment of her signature is April 11th. I think I am correct in that. I haven't the deed before me. In the meantime Mr. Barr had requested an extension and was not in a hurry to get the deed signed. Q. Did you know that an extension had been asked for and g ranted t, A. I knew Mr. MacGiothlin told me an extension had been asked and I know he said he W})S going to grant it. Q. Did you ever see this before (handing paper to witness)? These are copies. A. These aje copies f
58 56 Supreme Court of Appeals of Virginia. J.B. Rixey. Q. These are copies of that. A. I never saw that before, sir. Q. Ypu never did 1 A. No, sir. Q. You don't know that someone pr~pared this? A. I don't know who pre pa red it and I don't know where it was prepared. I have never seen it before. Someone had that drawn, I suppose, but I didn't prepare it, Mr. Sacks. Q. You never had the deed signed by Mrs. MacGlothlin in your possession until after he had settled with page 70 ~ her f A. Mr. Ashburn still has the deed in his possession as far as I know. Q. Do you know why :Mr. Ashburn never turned the deed over to you so that you could deliver it to Mr. Barr? A. As I told you, Mr. Sacks, Mr. Ashburn said at -first that Mrs. l\faoglothlin didn't want to sign it and then said she would on condition that Mr. MacGlothlin turn over some items, arid I don't recall what they were, and Mr. l\facglothlin said he would, and when Mr. Barr refused to take the property I just never went for the deed. Q. You never tendered the deed to Mr. Barr? A. No. I was ready to tender it but he turned it down and refused to go through with it. Q. Were you or your client in position to tender deed to Mr. Barr at any time before this suit was brought Q. When was the first time you could have tendered a deed A. We could have tendered the deed at any time Mr. Barr would have asked for it. Q. Suppose he had asked for it March 18th A. The deed would have been delivered to him on March 18th if he had asked for it. Mr. Ashburn advised me that his client was willing to sign the deed prior to page 71 ~ March 18th. Q. You are not familiar with Mrs. l\facglothlin 's testimony. You were not there when she testified? A. I was not there. Q. When did Mrs. J\facGlothlin get the personal property from her husband f A. All the personal property? 'Q. All the personal property she got as a result of the Court proceeding s in the divorce case? A.. I could not tell you the exact date. We had a hearing
59 Harry Barr v. T. }\,files MacGlothlin. J. B. Rixey. before Mr. Richard Ruffin and his report will speak better than my memory.. Q. His report was filed May 30th, A. If that is the date it was filed, that is the correct date~ I don't know the date. Q. Mrs. MacGlothlin didn't get the furniture before that time A. She didn't ask for any furniture, l\fr. Sacks. Q. Would she have signed the deed if she had not gotten these- A. One of the items was keys to an automobile she wanted, and one of the other items was a plat to some property in Maryland, and another item was title to the automobile,. I think, which Mr. MacGlothlin had in a lock box.. She didn't demand any furniture.... Q. Whatever she said she wanted, she wanted page 72 ~ it before she would sign the deed?. A. No. She wanted it before the deed was delivered. She signed the deed; so l\ir. Ashburn said, and was ready to sig n the deed at any time and deliver it when he would turn over those little things. Q. That was not done until after May 31st, 1939? A. The actual turning over of the property-i don't know when it was effected. Q. Being in the same building with Mr. Garnett, your conversati01is with him were casual; you would just meet him and discuss it? A. No, they were not casual meetings. The one on May 12th was when he came to my office that I have mentioned, and on May 3rd I think L went to his office, and on May 2oth I know I went to his office and reported it. They were not casual meetings but were for the specific purpose of dis- <mssing this matter.. Q. All of these steps were preparatory to bringing suit for Mr. MacGlothlin against Mr. Barr? A. No steps were necessary to be carried on unless Mr. Barr failed to go through with the sale, which I understood he was refusing to do. Bv Mr. Rixev: ~ Q. I don't know whether I asked you whether or not you took up with Mr. Mac.Glothlin the question of page 73 }- whether he was willing to meet the demands of Mrs. MaeGlothlin made through her attorney, Mr.
60 SS SuprelJ}<3 Court 9f App~fl,ls of Virginia. W. 11,~.Ashburn,. Ashhµ.r~, f\s a condition precedent to the deed being d~liv. ered. Did you take that up with him? A. You did ask me that question, an,d, I did tak~ it up with him.. _. Mr. Sacks: I object to tbat. The Court: He testified to that on direct examination... W. R~ ASHBU~N, sworn on behalf of the plaintiff, testified as follows : l3y 1\!r. Rixey :. Q. l\fr. Ashburn, you are an Attorney at Law, are you not,. sir! A. Yes; sir. Q. You repr~scnted, I believe, Mrs. l\faeglothlin-i don't know her first name-the former wife of Mr. T. M. Mac Glothlin? A. Yes, I was her attorney. Q. I show yon a copy of the letter marked Ex. page 7 4 ~ hi bit #5 which p-qrports to have been written by Mr. Barbour Rixey to you on March 10th and ask you if you received that letter! A. I haven't looked in my file for that, Mr. Rixey, but I think I did receive it. Q. Do yon recall whether or not yon received deed to the property with that letter? A. I received a deed to the property, which is in my file, but whether it came with the letter, or not, I am unable to state froin nieinory. Q. Tell the jury what you did in reference to taking the. matter up with Mrs. MacGlothlin about her signing the deed. A. I took it up with her, as to whether she was willing to si~ the deed. We discussed it at some length. -Of course, she and her husband were having domestic differences at that time, and my recollection is that a suit for divorce against her was then pending. The Court papers wili show,vhether that is a fact. Q. What decision did Mrs. MacGiothlin arrive at with reference to the request for her to sign the deed 7 A: Iler ultimate decision was that she would sign the deed and she did sign it. Q.. Do you recall when it was that you first notified Mr. Barbour- Rixey she would sign the deed?
61 Harry Barr v. T. Miles MacGlothlin. 59 TV. R...A.slzbu-rn. page 75 ~ A. I don't. recall, Mr. R.ixey. It was during the time the matter was under discussion. Q. "\Vou~d this let1er of March 10th mean anvtbing to you with reference to that?... A. Not a great deal. It was probably late in March or early in April. I have only looked through my file in the last few minutes. I have nothing in there to indicate when I informed Mr. Rixey that she would sign it. Q. Did Mrs~ MacGlothlin agree to sign and deliver a deed unconditionally or were there some conditions placed upon itf A. My reco11ection is that tl1cre were some conditions placed upon the signing and delivering of deed by her. I think that before she agreed to sig11 the deed she wanted him to deliver to her certain things as to which they had a difference of opinion. Q. Did you report that to Mr. Barbour Rixey? A. Yes, I am quite sure I did. Q. what reply did he make to you with reference to l\ir. J\facGlothlin being willing to comply with those conditions? A. 1\fr. Rixey, my recollection is that Mr. Barbour Rixey, having first delivered the deed to me, afterwards advised me that J\fr. 1\:facGlot.hlin would comp]y with the conditions, and I am of that opinion because the deed was page 76 ~ siimed by lier and I am quite sure slw would not havp. sig ned it without s11ch an understanding-. Q. You have the deed which was actually signed by Mrs. J\facGlothlin t The deed was never delivered, however, to Mr. Barbour Rixey. It has remained in my possession. Q. I understand you had authority and would have delivered the deed to )fr. Rixey upon l\fr. ~f acglothlin 's complying with those requirements that Mrs. Mac.Glothlin had made? A. That is mv recollection. Q. Can you say offhand what those requirements were? A. Mr. R.ixey~ I have to rely nnon my memory. and I can't sa_\r t]int these are the exact requirements hut I think at least they are some of the 1 equirements, perhaps all. These parties, the best I can recall, were then separated and a suit for divorce was pending. I am even of the impression that suit for divorce had been partiallv heard. It was heard ore tenu.s, and there was an adjournment of several weeks between the first and- last hearing. There was an automobile as to which there was a difference between tliem. The automobile was titled in Mrs. MacGlothlin 's name and she con-
62 60 Supreme Court of Appeals of Virginia. W. R. Ashburn. tended it was ber property and Mr. MacGlothlin contended he had some -financial claim on the automobile, and my recollection is that Mrs. MacGlothlin wanted the car, page 77 ~ wanted him to waive any claim or interest in it, and she wanted him to agtee to deliver the c~rtificate of title to the car, which was in his possession, and the keys to her. I think she wanted him to pay some furniture bill that had been incurred with one of these antique furniture dealers for the repair or manufacture of some household furniture, as to which he contended she had made the debt and she ought to pay it. She contended, however, that the furniture was for the household and he ought to pay it. The amount involved was not large, as I recall it, but there was a difference as to that. I think there was a difference as to some small :financial item, perhaps involving as much as $200.00, the details of which I have forgotten. Q. And you knew Mrs. MacGlothlin did actually sign the deed? Q. Have you the deed there with you? Q. Do you object to our introducing it in evidence? A. I have no objection. I suppose the deed ought to be left in the papers in the case and ultimately returned to me. Mr. Rixey: I offer that in evidence and ask that it be marked "Exhibit 14". page 78 ~ By 1\fr. Rixey: Q. Thjs deed shows that it was acknowledged by Mrs. MacGlothlin before a Notary Public on April 11th, Is that correct Y A. The Notary Public who took the acknowledgement is my stenographer and it was acknowledged in my office, and I would assume from the date of the acknowledgement that she sig'ned it on the day the acknowledgement is dated. Q. Do you know why that deed was never used f A. Mr. Rixey, I can only answer what M:r. Barbour Rixey said to me. Q. All right, sir. You know, do you not, that t~is same property was subsequently sold to a man named ~rmson Y A. I know Mrs. MacGlothlin was called upon to sign a subsequent deed for sale to.another purchaser, ancl my recollection is she did sign such a deed at a later date. Q. Do you recall whether or not the same conditions and
63 Harry Barr v. T. Miles MaoGlothlin. 61 JV. R..A.shbuni. precedents were placed on her delivering the Brinson deed as were placed on this f A. I think the same conditions were placed on the-was the later sale made to Brinson t Q. Yes. A. I think the same conditions were placed on page 79 } it and one or two additions to it. The reason I make this last suggestion is by that time these people had-the Court had straightened out for them their domestic difficulties and there were one or two things that had come up in the meantime that wer~ theretofore undiscussed. Q. Those conditions were met, were they not 7 CROSS EXAl\UNA.TLON. By Mr. Sacks: Q. Mr. Ashburn, Mr. and Mrs. MaeGlotblin were having a good bit of tl"ouble? Q. There was some feeling between them and she at first would not sign the deed at all? A. I think she objected to signing it, Mr. Saekts. Q. And after she signed it she instructed you not to deliver it until Mr. MacGlothlin had complied with certain conditions f A. That is my recollection. Q. Antl tliose conditions were not complied with until Mr. Brinson bought the property f A. I think that is right, sir. Q. Although Mrs. MaeGlothlin had said she would have signed the deed and let you deliver it if Mr. Macpage 80 } Glothlin had complied with the conditions, he didn't do it? A. I don't think they were actually complied with until the necessity arose to deliver the Brinson deed. Q. Do you recall whether or not that took place after May 31st, 1939? A. When you say "that'' you mean what? Q. I mean Mr. MacGlothlin complying with Mrs. Mac Glothlin 's conditions. That is the date Mr. Ruffin filed his report. A. I wouldn't know the date but I would assume t'b.e date
64 62 Supreme Court.of Appeals of Virginia. l rving F'. Truitt. that Mrs. MacGlothlin delivered deed for the sale to Brinson. It was ultimately delivered. Mr. Sacks: Can we agree that the Brinson deed was acknowledged June 15th? Mr. Rixey : I don't know. The Witness: Mr. Sacks, I don't Imow and I have no independent recollection, that that was the identical date which ]\fr. MacGlothlin complied with the conditions because I have nothing here to.show on what date he did. By Mr. Sacks : Q. You know this, that even the deed that was drawn for Mr. Brinson you were not supposed to deliver until he_ had complied with those conditions l A. I don't think that is entirely correct for this reason: It seems to me that the decree of divorce was enpage 81 ~ tered prior to that time and when Mr. Rixey first asked that she sig n the deed to Brinson I took the position that there was no necessity for her to as she had obtained a divorce, and I tllink he took the position that the purchaser wanted her signature, and it may have been that those things she wanted him to do had been done, but I can't say. The Court: We will take a five minute recess. -Note: At the expiration of a short recess the case continued. Mr. Rixey: The plaintiff rests, sir. Mr. Sacks: I would like to call Mr. Truitt as an adverse witness. IRVING F. TRUITT, called as an adverse witness, being first duly sworn, testified as follows= By 1\fr. Sacks: Q. Your name is Irving Truitt f.a. Irving F. Truitt. Q. You are connected with the Truitt Realty page 82 ~ Corporation? A. Secretary and treasurer. Q. Mrs. Chapman is one of your agents Y
65 Harry Barr v. T. Miles MacGlothlin. 63 lr ving F. Truitt. Q. She handled this transaction between Mr. Barr and Mr. ]\facglothlin for the Truitt Realty Corporation, did she nou.a. Yes, she made the sale; that is, she made the sale to Mr. Barr. Q. After this contract was signed you were notified that Mr. Barr wasn't going through with it, were you not? A. No, I wasn't notified by Mr. Barr. I learned through Mr. Rixey after-let's see-i learned from Mr. Rixey after Mr. Barr had gotten an extension of time to comply with the contract and after he had authorized us to try to sell it for him. We were advised not that he was not going through with it but he wanted to sell it again and he authorized us to sell it again. Q. Let's see if we can go back and bring this out. You had advertised for sale prior to the 18th of February, had you nott A. Advertised the property for sale frequently. I have a record of the times..at that time I would say-we first started advertising it for ::M:r. MacGlothlin and sold it for Mr. MacGlothlin to Mr. Barr, and then ::M:r. Barr page 83 ~ asked us- Q. Wait a minute. Mr. Rixey: Let him finish. A. (Continuing) then Mr. Barr said he had decided that the need he had for it was-this didn't coble directly to me but through :M:rs. Chapman because she had had most of the transactions. By ]\fr. Sacks : Q. Don't tell what Mrs. Cliapman told you. A. Let me explain the sequence. Q. Your answer may be wrong. A. I was trying to explain what I know personally. Q. I think you can explain thoroughly if you will just answer the questions. Mr. Rixey: I think he has a rig ht to answer the questions in his own way. Mr. Sacks: But it will be hearsay. The Court: He can't give hearsay testimony.
66 a4 Sttjjfatti~ Gefirt et Appeal of Irving F: TtitiU:, By Mr. Sacks:. ~- I have na objection to. your aliswefirlg tllt~ I!till gbihg to put tu you: A. I will answer them in the way I feel is correct to ans-w-~f therrt. Q. Prior to February 18th, 1939, you had ad.:, pag;e 84 ~ vertisetl tlie pfljpefty for 1\n~ MacGiotlilirl in the newspa pefa, hatl you ntjt,.. A~ I,vill_liave fo answer that tliis way: By. detailing the eteiits,. ds I recall them; withtnit fl~fe1;erice to dates; beeaiis~ I would have to-= Q. I. don't c~re about the dattis; 1 want w get you to ttii~ swef the quastiofis:. A; I #ill b far as I ain conce1;hetl. -. Q. Is there any trouble in your answering w:hetliet or hot yoii advetthwd tlie property beftwe tlie 18th of Febrttary for Mr: I\UltiGldtlilirl f A._ I. will have to answer it in this way:. we, firs.t.aa~~f.: tise8 the pfotjei'ty fcfr l\lfr. MacGlotlilin and sold it to Mr. Batr. Q. Let's stop th«jte; Mt~r ybu soid it to Mf. Bart did you diseonthiue advertising f. A. We discontinued it until such time as 1\fr. Barr asked us to sell it for him, you see; Q. Stop there. A. I don't remember the date of the paper; but lie gave us a }Laper authorizing us to sell it... Q. Sttip figlit tll~re. We ate getting along all fight. A; What is th(' date of that papefl Q. Februafy 28tli; 1939~. page 85 ~ A. We advertised the property a few clays fie.; fore that because he verbally authorized us to go ahead and s~ll it, and that w~s a written a:ntliotiza~ tion that I asked to get so tliere woula be no question about that we were trying to sell if for Mr. Barr at that tim~.. Q. Weren't you satisfied t<ritfi liis vetbal atihorizatiori 7 A. I pi:~ferretl to liave it iii that form. Q. Wh y..., A. It was good sound business to have arl authorization from him to sell it. Q. Yon didri 't want to seil di try to sell until that written authorization was given by him 1.,,. A. I wanted a direct tiiitlibri~aiimi from hirri td sell the property.
67 itarry Iiarf v: r; 1\1:ile :M:ac<l1tH:lilliL 65 i tbiti.d F: Tfhitt: ~; Atta alter yoti liad gohett the autl1tlrity yoii stariea advertising? A. I started advefiisirig H: Q. Iit tlib iie"ttsjiaper, A~ Y~s: ct In. ytfar iiafue i 1t lri t>tlr naitie:. Q= Ydii kne~ Mi\ Bilrt- liitt1 bbtlght Uie property ftir His _own use, did you not Y, A. I u11de1:stood ft tij He fdt liis OW1l use., Q. Were you surprised to find out a d~y br tw~ page 86 } later he didn't wa~t it but wariteb. yiju, W ~eii it T. 1t Qtilt~ nattirally I. w~s ~ritprised _th krlo- he itas not going- to b.se it tdr hilit.self, b'tlt tliat '*its liis Utisiiless and not mine. Q; H~ tdia yoti ithy lie tliflrl 't w~:ftt it f. A. Yes, I understood his daug1itef was oni-i wi11 iihve to give you heatsaji,.ii ytln. warlt i{. Q. What did Mr: Batt!ell fd~f A. Mr. Barr didn't tell me atjyfhiiig~ Q. Is this the advertisemerih A. What is the date of that pape~?.... Q. ~itst 1 am a~lii~g tbii thw, and th~n t mn rl-if~.ion the a:af~. tt says, i l Nurth Shore Rdad. A vetf d~sif aule property''. ~. x~~s, that is the pr9perty. o.. T~i~ is ih~ prop~tty1 I. t~s. Q. :(i'ebru~ry 22iici, 1989?.... W11at i~ th~ mhe & that paper? Q. F.ebruary 2 2nd..., A. We w~fe anthdflz~tl 'Hy Mr. IMtr a few tlhys before that time. Q. l\fr. Truitt, don't you know that in orde~ for you tq tldvertise p'ropefty fdr safo you get a wfifteri authorizattoi1 from page 87 ~ the ownerf A. Not necessarijy. Q. Do you ao ih A. We do frequently..,. Q. Did you get an~ f fom Mr. MaoGibtlilin, A. No.... Q. You never aid 1 A. No. Q. How did h~ list the property witn ybn f... A. If you tell me to sell a pi~ce bf property I go down
68 66 Supreme Court of Appeals of Virginia. Irving F. T rititt. the street and sell it, and that is a perfect authorization in the real estate business. Q. "'Why did you want it from Mr. Bard.A. Because M:r. Barr was so anxious for it to be sold and he gave us special terms on it. That shows a special arrangement I had of profit sharing, and 1 felt, when they get to that point, or if he had arrived at that point, and he was so anxious for it to be sold that the best thing to do was to get it in that form..;. Q. You knew that before the 22nd, did you Y A. No. Q. You did noty A. I can't say as to the 22nd and 28th. The exact dates in there I can't answer. At the time I didn't keep any particular record of the dates. Q. Now, are you familiar with that property page 88 ~ A. Yes, indeed. Q. Is it well worth the money Y A. What price are you talking abouu Q. The l\facglothlin house! A. vv ell, worth what figure! Q. $12,000.00? A. I would say that the property was worth $12,000.00, possibly some more. We first offered it at more money than that. I would say that was a fair figure for it. Q. A fair market figure? A. Yes, I think somewhere around in that neigborhood probably. In property in that neighborhood, a variation of $1, is a matter of individual judgment. Q. $12, you would say was a fair market value for the property T A. Somewhere in that neighborhood. I mean $12, to go out and market it on an orderly basis having plenty of time. Q. Who prepared this (handing paper to witness) Y A. I think I prepared that. Q. You prepared thau A. I think I prepared that in the office. Mr. Sacks: I will introduce this in evidence. Note: The paper was marked "Exhibit A". By 1VI r. Sacks : page 89 r Q. There is an original and two copies t
69 Harry Barr v. T. Miles MacGlotlilin~ Irving F. Truitt. Q. Why did you prepare an- original and two cop1es Y A. When I prepare a paper of that sort I usually prepar~, Q..One for each of the parties and one for you?. Q; It is dated March 15th, 1939, and addressed to T. Miles MaeGlothlin, Norfolk, Virginia (reading paper). Who was supposed to sign here, Mr. Barr T A; Yes, Mr. Barr. Q. Asking for an extension? Q. And belo,v that you have, "I agree to the above extension". That was to be signed by Mr. MacGlothlin Y Q. Why did you send this written paper to Mr. Bard A. Because for two or three reasons. Iri 'the first place time was getting along and in order to have the matter-the record reasonably clear, I felt that was the correct way of doing it, however, the request for an extension had come in in verbal form, and a verbal extension or contract, I understand, is valid, although I am not a lawyer and can't answer that. page 90 ~ Q. You wanted him to agree to this in writing, to this extension t A. I prepared it because I felt that was a good way of doing it, but I didn't think it was so important if he didn't. Q. YOU conld- A; Wait a minute. There was another reason whv I felt like an extension sho u.ld be granted, and that was because we had been working 011 the property for Mr. Barr and we had several prospects that looked reasonably good; and I feh like it-that it would save liim expenses of going ahead and s(~ttling f dr the property if lie g-ot that extension. instead of put.ting up expenses for settling for the property. It would save him some expenses. Q. Any other reason T A._ That was the principal reason, in order to save expenses f di settling for the property.. I understood he was going to pay cash and I felt that Mr. MacGlothlin would be willint to wait a few days. Q. This was never signed by him. You mailed this to him, didr,.'t you? A. I don't remember about that.
70 68 Supreme Court of Appeals of.virginia. Irving F. Tru,itt. Q. He got it through the mail and so you must have mailed it to him. He never sig ned it A. I don't remember about that. Q. He didn't sign it. Do you know why he page 91 ~ didn't sign for the extension if he wanted iu If he asked for an extension and that is all it is, a request for an extension, do you know why he didn't sign it? A. No. Q. Did he give you any reason at all? A. No. I never beard from him except I understood-this is hearsay. Q. You can't give hearsay. A. I want to make this statement: The request for an extension didn't come directly to me but throug h my office. I prepared it at the request of Mrs. Chapman. Q. vvere you paid commissions on the sale of the property to Mr. Brinson Y Q. Who paid you A. Mr. MacGlothlin. Q. Mr. MacGlothlin 1 Q. For whom did you sell it f A. For l\tlr. l\facglothlin. Q. You sold it for Mr. l\facglothlin and not for Mr. Barr? A. No, not for Mr. Barr. Q. Why did you not sell it for Mr. Barr; you pag e 92 ~ had authority to sell it for him? A. In the :first place we were advised, I don't know just how long after this time, but some time after we had worked on it and after the time for the extension was up-we were -advised by Mr. MacQlothlin's attorney that Mr. Barr had refused to take the property and that he had advised him be had to take the bert offer available,.and then we went ahead and g ot the best offer we could for Mr. Mac Glothlin. Mr. Brinson, the sale to him was not even thought about or negotiated in any way, shape or form until after we were advised bv l\fr. Rixev that l\f.r. Barr had refused to take it. ~ Q. Mr. Brinson was the first man you offered it to after l\fr. Barr- A. I would not sav he was the first man we offered it to. I could not answer that.. Q. who else did you offer it tot
71 Harry Barr v. T. Miles MacGlothlin. 69 Irving F. Truitt. A. I didn't offer it to anybody else. Note: Advertisement heretofore ref erred to was marked '' Exhibit B.'' CROSS EXAMINATION. By Mr. Rixey: Q. Mr. Truitt, I understand that you personally didn't make the sale to Mr. Barr 1 A. No, sir. page 93} Q. You were not present at the time Mr. Barr signed the contract Y A. No. Q. That sale was made by Mrs. Chapman 7 A. By Mrs. Chapman. Q. Who is a salesman in your office? Q. Who made the sale to Mr. Brinson 7 A. I made the sale to him. Q. You made it personally? A. Yes, I made it personally. Q. For what sum was the property sold to him 7 A. $10, Q. State whether or not you consider $10, a fair JJrice for the property! A. I think, under the circumstances, when you have to go out and get the best. offer you can-i think it was a fair price. Q. And tl1e best price you could have gotten? A. It is the best price I had any possibility of getting. Mr. Rixey: That is all. I may need you on rebuttal, so I will ask you to stay around. RE-DIRECT EXAMINATION. pag-e 94 ~ By Mr. Sacks: Q. How much did you offer the property for before you sold it to Mr. Brinson? A. Do you mean when we offered it for Mr. Barr or Mr. l\facg lothlin 1 Q. Anybody. W11at did you offer it for for Mr. Mac Glothlinf
72 70 _supreme Court of.appeals of Virginia. ljtfrs~ Frances Ba.tr.. A. We first stari'ed for Mr. Ma~Glothlin, I think, originally. for. $14,000.00, originally.. Q: Aftet Mr. Barr refused to buy it what did yon offer the property for sale for Y A. We didn't offer it at any price but asked to get the best off er we could. Q. What did you askf. 4. _We told them the story, of the. situation of Mr. Barr, and I think we started for $13,000~00 when we first offered ' it. Q. Why did you start it at $13, You can't show any authorization there. A. We tried to get Mr. Barr but sd he would not have a loss. Q. Was the property worth $13, Y A. Any real estate values are matters of jndginertt of the man who is buying as much as anything else, and reg ardless of personal opinion of what you can get for a thing has a great deal to do, I thin]i, with what it is worth. page 95 ~ Q. In your opinion, was it worth $13,000.0d then Y A. I thought so at the time, but I found by offerinp: it that it would :µot go for that. Q. It was worth it but yon jrist conla not get iu A. Yes, I thought so. MRS. FRANCES B.A.RR. sworn Ori behalf of the deferiffa:nt, testified as follows : By Mr. Sacks:. Q..Yon will have,to talk loud enough,for all of the~e gentlemen to hear _yon. Your name is Mrs. Frances Barr Y A. Frances Barr. Q. Mrs. Barr, yori are the wif~ of Harfy Barr, the defendant in this suitf.....,. Q. Mrs~ Bart; did you know Mrs. M. E. 0. Chapman before the date yqn went out to look at this MacGiothlin home A. l never met her before. Q; How did you happen to meet her ori that occasion? A,_ She had caued irie on the phone and told me page 96.} she had a house for rtie to look at.. Q. Do you know bow she knew you were foterest~d iii the house f A. I told her she had the wrong Barr, that it was m:y
73 Harry Barr v. T. :.Miles MacGlothlin. 71 Mrs. Frances Ba,rr. brother-in-law who was interested in a house, but I would go out and look at it. Q. Do you remember what day of the week that was? A. That was about January 18th. Q. Do you know what day it was, Tuesday, Wednesday, Thursday, or Friday? A._On Friday. Q. On Friday? A. On Friday. Q. Was it January or February! Do you remember what month it was? A. It was Februarv. Q. Did you go out with :Mrs. Chapman t A. I went out with Mrs. Chapman. She picked me up. 1 Q. what time of day did you go out with her? A. Late in the afternoon. Q. Did you come back with your husband that night? A. I came back that night with my husband. Q. Could you have bought the property without your husband's seeing it T A. No. page 97 ~ Q. Between the time that you went out with :M:rs. Chapman the first time and the time yon came back with your husband that night, did you call Mrs. Chapman up about a contract or anything like that?.a:. I don't remember. Q. Would there be any reason for you calling her up? A. I don't think so. Q. vvbat time did you and your husband go ouu A. Quite late in the evening, between 8 :00 and 9 :00. Q. Was Mr. MacGlothlin there t A. He was there. Q. Did you go through the house Y A. We went through the house. Q. Did you, or not, ask Mr. MacGfothlin and Mrs. Chapman any questions relative to the location of the school? A. I did. I told them I had four children, that one child had no mother and father, that the child was willed to me when his mother passed away. She asked me would I take car~ of the cl1ild and send it to school, and the child is not well at all, therefore, he had to have a school very close by so he would not have to g o in rainy, stormy weather if it was any distance. Q. What were you told about the schooh
74 .72 Supreme Court of Appeals o f Virginia. Mrs. Frances Barr. A. The school was rig ht there, right around the page 98 ~ corner. They had impressed upon me that the school was rig ht around the corner. Q. Who told you that? A. Mrs. Chapman and Mr. MacGlothlin both. Q. Had you ever been in that locality before! A. No. Q. Did you know where the school was at that time! A. No. I would not have asked them if I had. Q. Was the school right around the corner Y A. By no means. Q. How far is that school from that house A. Nine-tenths of a mile. Q. When did yori first find that out? A. After we signed up. Q. What day of the week, or how many days after that? A. Right afterwards some time.. I believe it was when we drove around. Q. What day did you drive around f You signed the contract Friday night? Q. When did you go around there again? A. I believe the next dav or a dav or two afterwards. Q. Did you go a.round there Saturday! A. I didn't go around there Saturday. Q. Did you go around there Sunday Y page 99 ~ A. I don't know. I could not say, but it was very soon after, and as soon as I found out I let them know. Q. You were present when your husband signed that piece of paper? Q. Did you know Mr. MacGlothlin was a married man T A- I didn't know Mr. MaeGlothlin was a married man. He bad two women at the house at that time drinking. T didn't know he was married.. Q. Was anything said to you about somebody signing the contra.ct or deed other than Mr. MacGlothlin? A. Oh, yes, he did. Mr. Rixev: She said she didn't know he was married. The Witness : It comes to me riow. He said his wife was in an insane asylum.
75 Harry Barr v. T. Miles MacGlothlin. ljf rs. Frances Barr. ::By Mr. Sacks : Q. Tell t~e jury what was said with reference to sig!].ing ~ deed, etc., before the paper was signed. A. Oh, Mr. MacGlothlin said, "Don't tell anybody you have bought the house because the house is not sold yet." Those are the very words he told me at that time. I didri 't take my in.other-in-law and father-in-law out to show them the house because we knew it was not sold yet. Q. Why did he say it was not sold Y A. Because he could not g-et his wife to sign page 100 } because she was in an institution. Q. You didn't know him at all f A. No, had never met him before. Q. Or Mrs. MacGlothlin? A. No. Q. And that was tol.d you the same nigl1t f A. The very same night, the night he told us ~ot to tell anybody it was sold because it was not sold at all. Q. Wben you informed Mr~. Chapman or Mr. Mac~lothlin you had found out the school was not as close as they rep~ resented it to be, what did Mr. MacGlothlin say? A. He said he would have to see his lawyer about. that. Q. Would.have to see bis lawver? A. "Y'es. ~ Q. After t.hat time, when you told hhµ you were not going to take the property, did you consider you were tbroµgh 'with the deal Y, A. I considered we were through with the deal when I let him know soon afterwards and,vhen his wife-when' he didn't have her signature on the contract. So we told him we didn't put him out any, that we cµdn 't inconvenieµ'.ce him, and we didn_'t bring anybody to look at the house and didn't come back again to look at the house. ' Q. Would you wanl to buy a home that distance frqm the s~o~i page 101 } A. Absolutely not, not with four -~hildren and they were all sizes. Q. Would you have considered buying the house if you had ]mown it was that far away'? A. Absolutely not. Q. 'rhat is why you backed ouu.a.. That is why w~ baekeq. out...,
76 74 Supreme Court of.appeals of Virginia. lj:lrs. Frances Barr. CROSS EX.AMINA.TION. Q. Now, Mrs. Barr, you say that you didn't call Mrs. Chapman?.A. I didn't call her. She called me and I told her she had the wrong Mrs. Barr. Q. You and your husband were in the market for a home at that time Y A. We were and we were not. Q. 'What do yop ;rµ~a11 by you were and you were not? A. Eventually. "\Ve thought we would buy a l10use eventually. _ Q. You had no intention of buying a house at that time? A. Not especially. Q. What do you mean by not especially? Did you or did you not have any intention of buying a home at that time?. A. We had an intention at that time because page 102 ~ they said the school and everything was close by and everything as represented, the stores and all. Q. You did expect to buy a home at that time Y A. I expected to. Q. Y,ou looked at some other property A. That was the first one I looked at, I believe. It was the first house she showed me, the first time she took me out there. Q. vvere you looking at property called the Bond property or the Bonney property f.a. I was, yes. Q. You had been looking at the Bonney property? A. That was one. It was the only one right close by. Q. I thought you said you h!l,d not been looking at any? A. Nothing to talk about. Q. You( didn't talk about the Bonney property? A. That is not.bing to talk about. They sent out and took me through the property. Q. I asked you if you had looked at any other property and you said no? A. Not with Mrs. Chapman. Q. You were looking at the Bonney placef A. I think tl1at is rig-llt. Q. "\Vhere is that located? page 103 ~ A. I don't know whether it-i haven't been around in that section. It is all new to me. Q. Is it right there in the immediate section where Mr. l\facglothlin 's property was f
77 Harry Barr v. T. Miles l\facglothlin. 75 Mrs. Frances Barr. A. No, nowhere close by. Q. In what section? A. I could not tell you because, as I say, I had never driven around there be.fore. It was all new to me. Q. How long have you lived here in Tidewater Y A. About four and one-half years. Q. About four and one-half years and had p.ever been out in that section before? A. Not in that section. It was new to me. Q. And you can't tell the jury where the Bonney property is Y.A. Not just where, I could not tell them. Q. What is the nearest you can say about iu A. I don't know, as there are so many ins and outs around there. Q. You were all ready to buy it?.l\.. Of course not. Q. How many times l1ad you looked at iu A. Once. Q. And you can't tell the jury or give them any idea where it is? page 104 ~ A. I can't tell them because there are so many ins and outs. Q. Is it on this side of the Lafayette River or the other side? A. I could not tell vou. Q. Do you know wiiere Lafayette River OL' Tanners Creek isf A. I don't. Q. Do you know wbete the Countr.y Club is Y Q. Was it on the north side of the Country Club or on the Naval Base side? A. I just cannot say where it was. Q. You don't know? A.. I am not familiar with that. section. Q. Was this Bond or Bonney house in Brambleton? A. No, it is not in Brambleton. It. was towards that section. Q. Out in that neighborhood? A. It was out in that neighborhood. Q. You had been looking at thau A..Yes, with another agent. Q. What? A. By another agent.
78 'l6 Snprem.ij Gottrt EJf Appeals of Virginia. "JJl rs. Franees Bafr~ Q. Who was the agentf page 105 ~ A. Not Mrs. Chapman. ~~ Who was the agent 1 A. I can't think of the agent's name. Q. How tlo you suppose Mrs: Chapman ]earnetl JOU were looking at that?. A: She had the wrong Mrs. Barr. There a.re fahr Mrs. Barrs in town.- Q. Which Mrs~ BaTr was it who lodked at tlie Boiihey house! A. Me. Q. How did Mrs. Chhpnulrl lemn you were lbolfrng at the Bonney home? A. When she called me I told her and she saitl, '' I guess it is Mrs. Phil Barr," and they were trying to get me intet;. ested in a house there. Q: Did you tell Mrs. Chapman you had been lookirlg.at the Bonney house Y _ A. I guess I did. I told her I was- Q. You went out with Mrs;, Chapman to look at the Mac Glothlin house, you say, on February 18th; 193~, late in the afternoon! A. February 18th, that is rig ht. Q: Alfout what time did ydu g~t out there Y A. I guess it was between 3 :00 and 4 :00. We only stayed there five minutes. page 106 ~ Q. You Went over the house! A. Went over the house, just glanced over it because I was in a hurry to get back. Q. Did you hulkt! arrangements for you and your htlsband to come back? A. I saitl I wobld bring liim back in the evening which I did. Q. The same evening_i A. The same evening. Q. You were very much intefested in the horlse T A. As far as I knew; Q. Htlw far ditl you ltnow; A. It was such a. quick thing, and the man had to go back to his office. He said he had taken time off from th~ Na val Base and he had to rush and get back, arld I didn't go through as vou would when. you are expecting to buy a hdme; Q. You say you and your husband w~nt back; Wl1o else went back out there that evening? A. My daughter.
79 Harrf BEirr ;-. T: Miles Ma~Glathlilli n Q: Wliat.is. her name! A. Estelle Barr. Q. Is she married 7 A. No... _ ij; When 0~ went back that evening Mrs. page 107} Ghapman was there, was shey A. She was there. Q. And Mr. MacGlothlin was there! A. Yes~ Q. When was it that th_~y told yon th~t the school was tight 11r~uild the corner? When did they tell yen tliat Y A. Before we signed up fer tlie place~ Q. That nighu A. That evenirtg:. Q. Did they tell you in the afternoon 7.. A. I didn't talk anything about that in the afterrlooii to them. Q. Which 9ne told youy A. Botli of theni.. Q. Did you go tiut ai1d investigate? _... A: We took her word for it artd Mr. J\facGlothliil's ward for it.. tl Wllat prl~e did _you discuss fbr the property that night when you went out there!... A~ _What do you inean, what price? I don't urtderstan:d- $12, Q. You know what a price is, don't you!.a. $12, _ Q. Is tliat the only p6ce you talk~d 11btfut?_ page 108 }.A. One they had set was a lliileli highe~ price. Q. What other price did you talk about? A. I believe they saitl $18,000.QO... Q. Did you only talk about. the $12, and tlie $13, price T A. As far as I can remember, yes; Q: And finally you and :Mr. Ba.fr _said you wanted th~ property?.. A. We had given thein a deposit on an optidh for pfoperty. Q~ WhaU. _ A. An option on the property given us. That was the un;.. derstanding. Q. What was t1ie undetstanding?. A.. The understanding was the house could not be sold but
80 78 Supreme Court of Appeals of Virginia. Mrs. Frmices Barr. they would take it as an option. That was the understanding that evening. Q. You then deny Mr. Barr bought the property; is that sot A..As fa.r as I know, it was paid on the option, as Mr. Mac Glothlin said his wife was an insane person and he could not get her to sign. Q. What is an option f A. An option was that if I sa-w fit not to take the house I could come back and tell him we were not going page 109 ~ to take it, and that is the way we understood it. Q. Was that the agreemenu A. That was the agreement. Q. vvho wrote up this paper, Exhibit #1 t A. Who wrote thau Q. Yes. A. It looks like Mr. Barr's writing. He wrote that.. Q. See if there is anything about an option in there, A. That is the way we understood it because he said he could not get his wife to sign, and Mrs. Chapman said they were going to have a hard time selling this house "because she just won't sign,'' his wife. Q. Your claim then is that Mr. Barr didn't really buy!t that night but simply signed an option for itt.a..absolutely, an option, becanse we didn't take anybody back and didn't go back to look at it again. Q. Yon didn't think yon had anything to do with it? A. We didn't think it was final. Q. Do you know anything about Mr. Barr signing this other contract, marked '' Exhibit 2!'' Q. You remember his signing that.f Q. Do you think that is an option, too? A. I certainly do because his wife's signature page 110 ~ is not put on. there and here is a space for hif-1 wife's signature here. Q. Wbo is the contract between? Read it. A. It sa.vs Mr. Miles MacGlothlin. Q. Does.. it say anything about Mrs. MacGlothlin being a party to iu A. I understand she could not- Q. Never mind what you understood. Look on there and see if you see anyt11ing about her. A. There are two more signatures to g o on that contract.
81 Harry Barr v. T. Miles MacGlothlin. 79 Mrs. Frances Blirr. Q. I believe you testified first in answer to l\fr. Saoks' question that. you didn't know whether Mr. MacGlothlin was married, or not. You testified that way, did you not? A. For the minute I didn't know at that time but it come back to me what he sa.id to us about his wife. Q. As a matter of fact, there was nothing said about his wife at that time, a.t the time you signed the contract, wa.s there? A. It was. He said he had some trouble with bis wife and she was suing him for a divorce, or something, I don't know just what it was and she was in an insane asylum. Q. Did he say she was in insane asylum! page 111 ~ Q. And "It is not sold f" A. '' It is not sold.'' They were his words. Q. And in spite of that }fr. Barr and Mr. MacGlothlin signed that pa per; is ilia t right Y A. On an option. Q. I believe you first said that same day and then you said a few days afterwards you went back out there and found that the school wasn't "right around the corner?" A. Right.. Q. Can you tell us the day on which you found that out? A. It was the very next day,, I guess. Just as soon as J found out I let him know. I told him I didn't put him to any trouble as long as he hasn't got his wife's signature on the contract and '' you don't know whether she will sign,'' and we were under the impression we were signing for an opt.ion and the deal was off. Q. Your testimony is that the day after the contract was signed- A. When we found out about the school. Q. Wait a. minute. Your testimony is the day a.fter the contract was signed you discovered that the school was not around the corned A. Yes, that is ri~ht. page 112 ~ Q. And immediately upon discovery of such yon went to ]\fr. MacGlothlin and told him the contract was offt A. That is right. Q. Is that correcu A. And we wasn't taking the house. Q. And that you would not t.a.ke the house? A~ Yes.
82 80 Supreme Court of Appeals of Virginia. Mrs. Frances Barr.... Q..And thereafter you considered that was the end of the matter? Q. And Mr. Barr had no further interest in it Y A. That is right. Q. That was your understanding? A. That is the understanding absolutely. Q. when you went back and told Mr. :MacGlothlin a day or so after the contract was signed that the deal was all off, what did Mr. MacGlothlin say to you?, ' A. He said he could see that, why I had changed my mind about "it with the four children, and told me, ''That is something to think about," but be would have to see his lawyer. That is the exact words he said. Q. He didn't consent to your kicking out of the contract? A. I didn't say very much more to him. I came back with the information to let him know that he reprepage 113 ~ sented the school was clos.e by. I let him know that. Q. You told him definitely that "the sale is off?" A. I told him I wonld not consider it., Q. What?. A. I told him I would not consider it. Q. Would consider it? A. I would not consider it. Q. Would not consider taking the property? Q. And Mr. Mac.Glot.hlin said he would have to take the matter up with, his lawyer? R,E-DIRECT EXAMINATION. Rv!fr. Sacks: Q. Just one question. You went out to look at the Bonney place before Mrs. ;Chapman took you out to the MacGlothlin hornet - - A. Oh, yes. Q. And you probably told her you had looked at the Bonney l10me? A. I told her I hacl looked at it, yes. page 114 ~ l\fr. Sacks: If your Honor pleases, we have here the testimony of Mrs. MacGlothlin, the depo-
83 Harry Barr v. T. Miles MacGlothlin. 81 ljtlrs. Hazel Goodwin. sit.ion, and we want to read it. He has a copy of it, I think. Mr. Rixey: I.haven't a eopy of that.. _ Note : Deposition of Thelma Mason MacGlothlin, taken at Proffit, Virginia, on September 2~d, 1939,. was thereupon -read aud marked.''exhibit C." MRS. HAZEL GOODWIN, sworn on behalf of the def~ndant, testi1i(;ld as follows: By Mr. Sacks: Q. You will have to talk loud enough for these gentlemen to hear vou. Your name is whau... :.... A. M1:s. Hazel Goodwin. ~. Where do you live,,mrs. Goodwin? A. At 6121.Powhatan avenue,.edgewater. Q. Do you know Mr. T. Miles ]_\faeglethliny Q. And his former wife, Mrs. MacGlothlin; Q. How long ha.ve you known them 7 A. I have known l\fr. l\f.acglothlin about 17 vears and Mrs..MacGlothlin around 18 or 20:.. Q. Were you closely associated with Mrs. l\facglothlin Y -,. - page 115 } Q. Very friendly t A. Verv fdendlv. Q. Do you know anything about the proposed sale of the property to Mr. Harry Barr? A. I know that other than the house-i understood that the sale had been made - and that Mrs. ]_\facglethlin was asked-. Q. Before you get there, it is alleged that the sale.occurred on tlie 18th of February, Were Mr. and Mrs.--Mac Glothlin living~ together then? A. No, they were not. Q. Do you know whe re she was living? A. Yes, on Runnymede road in Meadowbrook. Q. Did _she g o to Home institution?,a. She is a victim of tuberculosis and she is in Charlottesville now rec.uperating. Q. Do you know \vhen sbe went there Y A. In June. Q. Of this year?
84 8:2 Supreme Court of Appeals of Virginia. Mrs. Haeel Goodwin. Q. In February Mr. and Mrs. MacGlothlin were not living together. Do you know anything about the Barr transaction f A. She was not living with he1 husband at that time. Q. Do you know whether or not Mrs. Macpage 116 }. Glothlin had been approached either by her husband or any real estate agent or any lawyer about signing a deed to that property to Mr. Barr A. No. Q. Do you know w hetber she signed or ref used to sign such a deed.t A. She,retnsed to sign. Mr. Rixey: I object to that. She said she didn't know anyt}j.ing a.bout Mrs. J\facGlothlin being approached to sign, and has also said she refnsed. The Court: I don't. know whether she meant no. Sometimes they say no and mean yes. The Witness : I didn't understand you to say if I knew. By Mr. Sacks: Q. Do you know whether anybody -on behalf of Mr. Mac Glothlin has been to her to try to get her to sign the deed f Mr. Rixey. I imagine this lady was not with Mrs. Mac Glothlin every minute of the day from February 18th until she left here, and how could she possibly know whether anyone ever approached her? Mr. Saeks:.You don't have to be with anybody 24 hours a day to know what happened in their presence. page 117 ~ A. She was in my home, lived in my home. By Mr. Rixey: Q. I understood you to say yon didn't know of anyone approaching Mrs. MacGiothlin about ~igning tl1~ deed Y A. I beg your pardon. I didn't understand Mr. Sacks to say I didn't know. I do know sl1e was approached hy Mr. Ashburn about the deed. Q. Were you present at the conversation Y A. Not at the time, at the eonference. I was out of the office because I drove the car for Mrs. MacGlothlin.
85 Harry Barr v. T. Miles MacGlothlin. 83 Mrs. Hazel Goodwin. Mr. Rixey: She can't testify to the conversation, I submit.. ~Ir. Sacks: Your Honor admitted testimony this morning as to wb.at Mrs. MacGlothlin had said when he had sought to show her attitude in the matter, and I am trying to show by her that she refused to sign. The Court: If anybody took any action i11. consequence of what she has said. I understood Mr. Ashburn to say she did refuse at first until articles and certain things were turned over. Mr. Sacks: Mr. MacGlothlin testified, I think, that Mrs. MacGlothlin didn't refuse at any time. I am prepared to show by this lady that she would not have signed at that time. page 118} The Court: That is contradictory to what Mr. Ashburn said and would not be binding on the Barrs or on Mr. MacGlotblin, but merely to contradict the testimony of Mr. Ashburn. Mr. Rixey: How could this witness contradict Mr. Ashburn when she was not present at the conversation between them? By the Court: Q. Were you present at the conversation? A. No, but Mrs. MacGlothlin told me many times that she would not have signed. Mr. R,ixey: I object to :tha.t. The Court: I sustain the objection. Note your exception. By Mr. Sacks: Q. Did you ever see anybody else go to l\frs. MacGlothlin, come to your house where she was, any real estate agent? A. No. Q. You only know what ~frs. :MacGlothlin told you? A. She told me, and I have a letter. Q. You say you have a letter? A. I have a. letter saying she would not sign. Mr. Rixey: I obje-0t to that, if your Honor pleases. The Court: Disregard that, g entlemen. The lady evident.ly pays no attention to the ruling of the page 119 ~ Court as to what the Iadv said to her. That is not evidence. "
86 84 Supreme Court of Appeals of Virginia.. Mrs. Hazel Goodwin. '. By Mr. Sacks: Q. Do you know whether your husband has been with Mrs. MacGlothlin to Mr. Ashburn 's office. or whether he came to your home and had a conversation in his presence Y A. No. Q. Did you have any conversation with Mrs. Chapman about this transaction?. Mr. Rixey: Wait a minute. The -Court: Mrs. Chapman! Mr. Sacks: Yes. Mr. Rixey: I object to any conversation with Mrs. Chapman. She is not a party to the suit. The Court: She was an agent of Mr. Rixey: Of Mr. Barr. The Court: She was also agent of Mr. MacGlothlin. Mr. Rixey: S4e was not after the contract was signed between Mr. MacGlothlin and Mr. Barr. She had completed her representation upon the signing of the contract, and thereafter she was employed by Mr. Barr as his agent to resell the property.. The Conrt: I overrule the objection." Mr. Rixey: Note an exception. page 120 ~ By Mr. Sacks: Q..You say you did have a conversation with Mrs. Chapman concerning the property Y I was present. with Mrs. Mac.Glothlin and Mrs. Chapman one night at the Bus Terminal, the night after the divorce. ' By Mr. Rixey: Q. The fourth of what T A. W"ith Mrs. Chapman. Q. After the four th of what 7 The Court: The fourth of,t uly, I suppose. They have a celebration then. A. After the divorce. Mr. Rixey: Is that admissible, any statement made by Mrs. Chapman when she was representing Mr. Barr trying to sell the property for him Y
87 Harry Barr v. T. Miles MacGlothlin. 85 Mrs. Hazel Goodwin. Mr. Sacks: She represented Mr. MacGlothlin before that time. Mr. Rixey: Here is the paper signed by Mr. Barr and I haven't heard any denial of it. Is there any denial about that signature Y Mr. Sacks: No. Mr. Rixey: Here is the paper, "I appoint you my agent to re-sell the property.'' The Court: I overrule the objection. Note page 121 } your exception.. By Mr. Sacks: Q. State what the conversation was at that time. The -Court: With Mrs. Chapman. A. She said the property had been sold to Mr. and Mrs. Barr, and imrs. l\facglothlin said, ''I understand they are not going to take it from him,'' and sbe said no, they were not, and she said they had made a deposit of $ Mr. Rixey: She is getting in the conversation of Mrs. MacGlothlin. The witness: I say l\f rs. Chapman said- By Mr. Rixey: Q. Was Mrs. MacGlot.hlin present? Q. I understood you started off to tell what Mrs. Chapman said and then what Mrs. MacGlotltlin said. Didn't you start to tell what 1\frs. MacGlothlin said f A. Yes, naturally she said- Mr. Rixey: That is what I am objecting to. Mr. Sacks: She is talking about Mrs. Chapman. By the Court: Q. What did l\irs. Chapman say t A. She said the property had been sold. Q. To Mr. Barr? A. Yes, and Mrs. MacGlothlinpage 122 } Mr. Rixey: :I ust a minut.e. She is now about to testify to whm Mrs. MaeGlothlin said, and she can ~t do that.
88 86 Supreme Court of Appeals of Virginia. Harry Barr. The Witness: What Mrs. Chapman and Mrs. MacGlothlin said. Mr. Rixey: Does your Honor rule that is admissible? The Court: Yes. By the Court: Q. What did she sayt A. She said, '' The Barrs are not going to take the prop erty." Q. Is that alu.: A. She said they ha.d paid a deposit, and Mrs. MacGlothlin said that-she said that was just an option and they lost the $ By Mr. Sacks: Q. who said it was an option f A.. Mrs. Chapman, and they had lost the $ Mr. Rixey: Of course, that can't bind my client. The Conrt: It is irrelevant, I think. Mr. Rixey: I move to strike it out. The Court: I overrule the motion. Mr. Rixey: Exception. Mr. Sacks: You may cross examine her now. Mr. Rixey: I don't believe there is anything I want tt) ask her. page 123 ~ Thereupon, at 1 :20 P. M., a recess was taken to 2:30 P. M. AFTERNOON SESSION. Met at close of recess. Present: Same parties as l1eretof ore noted. HARRY BARR, the de:f endant. being first duly sworn. testified as f oiiows: By Mr. Sacks : Q. Your name is Harry Barr T A. Harry. Barr, yes, sir. Q. Where do you live, Mr. Barr Y A Woodrow avenue. Q. Mr. Barr, you did sign that little memorandum of con-
89 ~!..,.; Harry Barr v. T. Miles MacGlothlin. 87 Harry Barr. tract that was introduced in evidence here this morning, did you not7 Q. Did you go around to the MacGlothlin house to look at itt page 124 ~ A. In the evening when I got home from work, you know, after dinner, my wife told me she had this house to look at and we drove out to North Shore Road until she pointed out this house to me. Q. Had you ever been there before f A. No. Q. When you went in the house who was there besides you,. Mrs. Barr, and your daughter! A. Mr. MacGlothlin and Mrs. Chapman. Q. Did you go through the house Y A. Yes, I went through the house. Q. Tell the jury what conversation you had about the house, etc., before you signed the paper t A. We went in the house and looked inside, and went out and he was describing t-he shrubbery to me, the trees and flowers. Q. Don't talk so fast. Mr. Knight has to take down your testimony. A. They asked $13, for the house, and I thought, as much as I knew about houses, that was too much, and I offered him $12, for it, ancl we were talking right along there and I had my children in mind, and this little boy I was raising, and my baby who was only a year old, and I had those in mind so far as the school was concerned. We were on the outside, and I was on the porch and we were talking about the school and I said, '' How far is page 125 } the school from here?" and Mr. MacGlothlin said, "Right around the corner," and waved his hand that way-'' a block or two around th(\ corner,'' and being as that sect.ion was new to me I took it for granted that it was, and so after he told me wl1at he was going to give me for my money and all of that I agreed to sign the option, and that is exf.lctly what we thought it was, on a piece of paper, an option to buy the house. Q. Why do you call it an option? A. In the first place, it was only on a little piece of paper and it was my intentio~ to bring my brothers around, and their wives, to look it over. I l1ave three brothers here. That was our intention, that if it was worthwhile and, of course, was good, we would take it. We were looking for a home.
90 88 Supreme Court of Appeals of Virginia. Harry Barr. Q. After you signed this you signed this other pa.per here, this formal contract? Q. When was that signed? A. That was sig ned the next day. Q. The next morning? A. The next morning, the next day. Q. You were there on Friday nig ht 1 Q. That was the 17th? page 126 r Q. Why did you sign this paper? A. I thought it was more of a legal paper than the small - paper than anything else. Q. Was anybody else to sign the paper other than you and Mr. MacGlothlin? A. When I signed the small paper he said, ''Don't forget this is not a sale until my wife signs the contract," and that contract was, together with the big one, and- Mr. Rixey: I object to that. "The paper speaks for itself. The Court: Yes. It is not an option. By the Court : Q. When he said, Mr. MacGlothlin said, his wife had to sign it, who was with you? A. He told my wife and I, and Mr.-or Mrs. Chapman and my daughter was there also. He said, "Don't forget this house is not sold until my wife signs the contract.'' By Mr. Sacks: Q. Did you lmow where his wife was at that time? A. No, bnt we were made to understand that she was sick and in some kind of a sanitorium, and Mrs. Chapman asked him h1. front of me, "Do you think you are going to get your wife to sign it?" and he said, "If I have got to g o page 127 ~ Court I will make her sign it,'' something like that. Q. He led you to believe that this would not be binding until his wife sig11ed it? A. He led me to believe it would not be binding until his wife signed and that I could get $ back if I wanted it. in thirty days. Q. That was on Saturday? A..Yes.
91 Harry Barr v. T.. Miles MacGlothlin. Harry Barr. 89 Mr. Rixey: He said on Friday. By Mr. Sacks : Q. That was on Friday that this paper was signedt By Mr. Rixey: Q. You didn't have any conversation with him about the second paper, did you? A. No. By Mr. Sacks: Q. You were there Friday night? A. Yes, the only time I was in the house. Q. Where did you sign this pa per? A. In Mrs. Chapman's home. Q. At her 11ome 7 A. At her home. Q. The next day? A. The next dav. Q. When did you go out there to the place 7 page 128} A. I drove around Sundav. Q. The following Sunday? A. The following Sunday,. and the streets out there are twisted all around, curves all around, and I drove around out there and we come to the school and I said, ''It looks like the school is far away", and I took my car and set the speedometer at the school and drove right in a straight line to the house and the speedometer said eight-tenths of a mile from the Jiouse, and I said to my wife, ''Yon don't expect ohildren to walk from that house to the school in winter weather". There is no sidewalk from the house all the way to the school. I said, ".They have g ot to cross two bridges over water not even protected, the body". A body of water comes in there. I don't know what it is. It has not even got a rail around it. Q. And when you saw that- A. When I saw that I said, ''It is no place for children living to go to school". I said,." The best thing we can do is to go over there and tell them we don't want the house", and my wife and I went down there with my brother. Q. When did you go over there? A. Tuesday night. page 129} Q. When you say "went there", where do you mean?
92 ~o Supreme Court of Appeals of Virginia. Harry Barr. A. Mr. MacGlothlin's home. Q. Yes. -A. We went in there and he had two ladies in there, and he offered me a drink but I refused, of course, and I told him, my wife and I told him, that we had decided we would not take the house. on. account of the school being so far away and it would be.very inconvenient for the children going back and forth, a-qd._1hen he said, ''Well, I will have to see my lawyer about it. A deal is a deal and I will have to see my lawyer about it". Q. "When you told him the school was farther away than he had told you it was, did he make any comment Y A. That is when he told me that a deal was a deal and ''l will have to see my lawyer". Q. Did yon tell him at that time the reason why yon didn't want the home was because your daughter was engaged to be married? A. No. She was not engaged to be married. Q. How old is your daughter! A. 18. Q. And she is not engaged to be married Y A. No. Q. And yon didn't tell him that f. A. No. I haven't seen Mr. MacGiothlin from page 130 ~ that night we went there, Tuesday night, until this morning, the first time l ever saw him. Q. Under the terms of this contract, if Mrs. MacGlothlin had signed and you had found the property as represented to you with reference to the school, its location, settlement was to be made on or before March 18th Y Mr. Rixey : Read it all. Mr. Sacks: '' All taxes, insurance, rents and interest are to be prorated as of date of settlement and settlement to be made at the above agent's office, on or before 18th of March, 1939, or as soon thereafter as title can be examined and papers prepared, allowing a reasonable time to correct anr defects reported by the title examiner." That is immaterial.. Mr. Rixey: Don't misquote the contract though. Bv Mr. Sacks : Q. When were you supposed to settle according to the terlns of the contractf
93 Harry Barr v. T. Miles MacGlothlin. 91 A. Thirty days after that. Harry Barr. Mr. Rixey: I object to that. The Court:. It says thirty days thereafter. Mr. Sacks: It was in contemplation of the page 131. ~ parties- The Court: I sustain the objection. By Mr. Sacks: Q. Did you at any time ask for an extension of time 7 A. No, I don't see why I needed an extension when I told him I didn't want the house. Q. Did you receive this orig-inal and two copies of the proposed offer for extension Y A. Yes, I received them by mail. Q. Did you sign them 1 A. No, sir. Q. Why? A. Because I didn't have nothing to do with the house. I was finished with it as far as I was concerned. Q. After you had told Mr. 1\facGlothlin the following Tuesday nig ht you were not going to take the property and gave him your reasons therefor, did you haye any conversation with Mrs. Chapman? You said you had not seen l\frs. Mac Glothlin. A. No, I haven't seen l\frr. Chapman either. She called me on the telephone. In fact, when we left Mr. MacGlothlin 's house that night- Q. Tuesday night 1 A. Tuesday night, we stopped in Mrs. Chapmai1 's house because she was on the street going towards where we live, and I told her and she said, "Listen; after all I page 132 ~ can sell the house and I don't blame you on account of the children. It is bad for the children to walk from there to the school so far", and I told her there was no sidewalk on the streets and they would have to walk out in the middle of the road, and she said, "I don't blame you and I can sell it again tomorrow or next day; I can find a customer for it''. Q. What did you tell lier? A. I told her to go ahead and do it, that I was really disinterested altogether then. Q. Do you know whether or not Mrs. Chapman or the Truitt Realty Company advertised the property for sale after you told her that that night?
94 9~ Sapteme Cotttt ef Apt>eals of Virginia. H ar, y Buth A. Yes, I think a day or two afterwards. Q. Tuesday was the 21st. A. The next morning or the day after, J; think, but t ktlow it was not very long, one 01 -two days_ at ttwst, they were advertising the house and my wife said, '' They are advertising it and you don't have to worry any more'\. Q. It appears that on the 28th of February, 1939, which was nearly a week after you had called the deal off that you signed that paper? Q. At,vhose request did you sign it? A. Mrs. Chapman called me on the telephone. page 133 ~ Q, Wht did you sign it Y _ A. She Called me on the telepll.one and said= Mr. Rixey: I object to that. Mr. Sacks:. It was merely a request for her to sell the property. Our position is there was a misrepresentation made, The Court: You mean Mrs. Chapman? Mr. ~ixey: He said he Was deceived by the school. The Court: I think he said something about Mils. Chap;. m~ ; Mr. Rixey! He found out about the school bef th e he wrote that letter, so he could not be deceived by anybody. Mr. Sacks: The reason he wrote it was upon certain represehtations tnade to him: The Court : He had already signed to take the property in the original agreement. Mr..Sacks: Yes. The Court: I sustain the objection. Mr. Sacks : This letter was introduced. in evidence by the plaintiff.. The Coutt: That is the letter authorizing her to sell it Y Mr. Sacks s Yest sh. Our purpose is to show that hgw~ ever the l~ttet was worded that way be was adpage 134 ~ vised ~ hei to sign the letter for an entirely. different purpose. We have a tight to show that it was for an entirely different purpose. The Court : I should not think so. Mr: Sacks: We save the point, sir. By l\tlr. Sacks :. Q. After that time yon washed your hands of the property!
95 Harrt Barr v. T. Miles MacGlothli~ Harry Barh A. Yes, sir. From the day I saw the school.so far away, and I made up m.y mind, and the ne~t time we had a chail.m was Tuesday night when we \vent out there. Q: Did Mrs~ MacGlothlin ever sign the contract that you si~~-. A. No, sir. Q. Before you withdrew from the transaction Y A. No. I never saw Mrs. :M.:acGlotlilin~ Q. Mr. Barr, I think in the beginning rou had beeh consulting Mr. Garnett Y _ A. Yes, sir, and the only reason I consulted him was he is our advi~ot; the advisor of our eorporation. Q. Barr Brothers! A. Yes, sir. Q: Mt. Glasser is your perstmal lawyer? A. Yes; sir~. Q. Did you ever authori2e Mr: Garnett to expage 135 ~ tend any time for settlement t Mr. Rixey: I object to that. He was 1iis attorney) Tht! Coti1't: Y 01:1 can't always rel on what the attorney says. Is there anything here to slidw that Mr: Garnett advised an extension of iu 1\fr. Sacks : I will withdraw it. CROSS EXAMINAT]ON. By Mr. Rixey: Q. Now, 1\fr. Barr, what is your business? A: Jeweler. Q. What is the name of your firm!, A. Barr.Brothers, Incorporated.. Q. You- are one of the owners of that company, are you nou A. No, sir. Q. In what capacity are you connected with it? A. I am manager~ M:r. Sacks: I object to that. Why is that materiau The Court: I don't know whether it is, or not. 1\1:r; Sacks: '.;rhen I object. Mr. Rixey: I am gbirtg to show he is familiar with con; tracts and knows the difference between a eontract and an option. page 136 ~ The Court : All right. I!
96 94 Supreme Court of Appeals of Virginia. Harry Barr. By Mr. Rixey: Q. What is your connection with that firm t A. Manager of the Portsmouth store. Q. How long have you been connected with the firm Y A. Since the time it has been incorporated. Q. You have lived in Norfolk how long! A. About four and one-half years. Q. What is the business of Barr Brothers f A. Jewelry store. Q. Do they sell things on installment T Q. Aud they sell them on contracts, don't they Y A. You can call it a contract if you want to. It is a lease like, we call it. Q. You call it a lease, so you know the difference between a contract of lease and a contract of sale, do you Y A. It is just an ordinary lease or contract, we call it. It is on top of the contract, I believe. Q. You know the difference between a contract of sale and option, don't you Y A. I don't know it. I can truthfully say I don't know it. Q. Yon don't know it? A. No, sir. page 137 ~ Q. who wrote this paper marked "Exhibit 1''! A. I wrote it. Q. It is in your own handwriting? A. Yes, dictated to me by Mrs. Chapman. Q. Mrs. Chapman dictated iu. Q. what did you mean by this, "$12, purchase price''? Q. You know what that is? Q. What is a purchase price f Mr. Sacks: The paper speaks for itself. The Court: If he says he is not familiar with contracts, all right. l\fr. Sacks: I wanted to show what he meant bv the letter. The Court: Here is a contract which he says is an option, and he has a right to ask him about that. Mr. Sacks: We save the point.
97 Harry Barr v. T. Miles MacGlothlin. 95 Harry Barr. By Mr. Rixey: Q. What do you mean by purchase price Y A. The buying price, I guess. Q. The purchase price is the binding price Y A. The buying price. pag e 138 ~ Q. It is the price that you were to pay for the propertyf A. I was agreeing to pay for that property $12, if everything had been all right and as represented to me. Q. You did then definitely ag-ree to buy the property at $12, f A. i1ook an option on it, yes. Q. An option? Q. I thought you said you agreed to pay $12, for the property if everything was all right 1.ll. If everything was as represented, was all right as represented. Q. Then you agreed to buy iu A. Then I agreed to buy it, yes. Q. You understand that was a contract? A. No, I understood that was my option on it. Q. Let's see if this is what you mean by an option: ''$12, purchase price, including venetian blinds, electric range, buildings and lot, shrubbery, screens, shades, and general warranty deed. Herewith check $ to bind the bargain.'' A. It says $ to bind barg ain? Q. Yes. A. Isn't that an option, bargain? page 139 ~ Q. ''..Settlement to be made on or before March 20th, '' What did you mean by '' settlement to be made''? A. If everything was all right we were going to pay it. Q. You were to pay it then! A. Yes, if everything was as represented. Q. You went there to the MaeGiothlin house on Friday night? A. Yes, sir. Q. What time did you g et there? A. I don't know; about 8 :30 or a quarter of nine. Q. Friday was the 17th of February, wasn't iu A. Yes, but they told me t.o date it the 18th because it was at night. Q. And that was written after midnight,
98 . I 96 Supreme Court of.appeals of Virginia. Harry Barr. A. No. Q. What was your reason for dating it on the 18th? A. Because it was nighttime and after office hours and she told me to date it the 18th. Q. Was it.because it was written after midnight? A. It was not after midnight. Q. It was not! A. No. Q. On Saturday, the next day, this was presented to youy. page 140 ~ A. That was presented to me on the Saturday -on Sunday, that is when it was presented to me. Q. On Sunday? Q. You testified that it was the day after you were there at nightf A. The day after that other paper was dated. Q. I understood you to say that you were in Mr. MacGlothlin 's home on Friday, the 17th Y A. Yes, Friday, the 17th, or whatever date it was, Friday night. Q. Look at your calendar and see if it was the 17th. A r haven't got a calendar. Mr. Sacks: Friday was the 17th. By :Mr. Rixey: Q. You testified that on the next day you signed that. A. The next day after that is dated. Q. You claim this was signed Sunday? A. Yes, sir, Sunday morning. Q. It was presented to you by whom Y A. Mrs. MacGlothlin at her home. Q. Mrs. MacGlothlin f Q. I mean to say Mrs. Chapman. Q. What was the occasion for your going to :Mrs. Chapman 'a home? pag e 141 ~ A. She told me to come out there. Q. When did she tell you Y A. That was from my wife. I got this from my wife. Q. When did you get her to come to her home Y A. Probably either Saturday night or Sunday morning. Q. And you went Y A. Yes, sir. Q. And signed it there in Mrs. -Chapman's presence at her home?
99 Harry Barr v. T. Miles MacGlothlin. JV. B. Dawley. 97 Q. Had. l\lr. MaoGlothlin signed it then f A. No. He wasn't there. Q. So you didn't see Mr. MacGlothlin any more from the time you saw. him in his home until you saw him on the following Tuesday at his home 7 A. The following Tuesday, yes. Q. That is the only connection you had with Mr. Mac Glothlin7 A. That is the only times I have seen him., yes, until today. Q. He saw you today T A. Until today. Q. I believe you said that when you went back you told Mr; MacGlothlin you didn't want the property! A. I could not use the property on account of page 142 } the children. Q. You could not take it?. A. I could not take it because I didn't want it. Q. You told him ffefinitely on Tuesday, after signing the contract Sunday, that you would not take the property; is that correct? A. That is correct. Q. And from that time on you washed your hands of the whole transaction T A. That is correct. W. B. DAWLE.Y, sworn on behalf of. the defendant, testified as follows: By Mr. Glasser : Q. Your name is W. B. DawleyY. A. That is right. Q. You are president of W. B. Dawley & Company, Incor- })Orated? A. Yes, sir. Q. What is your occupation, Mr. Dawley7 A. Real estate and insurance business. page 143 ~ By the Court: Q. What? A. Real estate and insurance business. By Mr. Glasser: Q. How long have you been in the real estate business in this city?,.
100 9~ Supreme Court of Appeals of Virginia. W. B. Dawley. A. 17 years.. Q. Are you related to Mr. Harry Barr, the defendant in these proceedings A. No, sir. Q. Have you any business connections with them? A. No. Q. Have.you any interest in the outcome of these proceed~ ings?. A. None whatever. Q. Did you have an opportunity to look over the 1\f.ac Glothlin home in Algonquin Park f A. I looked at it from the exterior. Q. I hand you herewith Exhibit #4, the photograph, and ask you whether or not yon looked at that house? A. That is the house. Q. What, in your opinion, is the fair market -yalue for that property? Mr. Rixey: I object to that. The Court : I understood him to sav he didn't page 144 ~ go inside but saw it from the exterio;. Mr. Sacks : His opinion might be worth something to the jury. Mr. Rixey: We object to his further evidence along that line. Here is a gentleman, Mr. Barr, who has bought the property for $12, and then washed his hands of the whole transaction and has told us that although he has signed a contract he is not going through with it, and after that he is to]d it will be sold for his account and that we have an offer of $10, for the property. If he had wanted to he could have come in and made objection to the property being sold at that figure at that time. The Court: He was told that?. Mr. Rixey: Y cs, sir. The letter from Mr. Barbour Rixey shows it. I submit he is bound by that figure. The Court: I don't know whether he would be bound bv it. I overrule the objection anyway. - Mr. Rixey: Note an exception. By the Court: Q. You j"ust saw it from the outside. Tell them what you think it was worth. A. I saw it from the outside and later exampag e 145 ~ inecl the p]ans of the l1ouse at the Buildei~'s Inspector's Office and found that houses in that
101 Harry Barr v. T. :M:iles MacGlothlin. 99 W. B. Dawley. neighborhood constructed in the manner that that house is constructed should sell for at least $12, By Mr. Glasser: Q. You saw the plans for the building f A. Saw all of the detailed plans. Q. Mr. Dawley, was there any difference in the value of that house in June than in February or March of this year? A. It would be very little, if any. CROSS EXAMINATION. By Mr. Rixey: Q. How many houses have you sold in Algonquin Park? A. I have sold none. Q. Have never sold any? A. No. Q. Have you ever had any occasion to appraise any property in Algonquin Park? A. No, sir, none except this one. Q. I believe your place of business is in Berkley, is it not Y Q. And you lhre in Berkley Y A. Live in Berkley. page 146 ~ RE-DIRECT EX_AMINATION. Bv Mr. Glasser:.. Q. You have been in the real estate business how many years? A. 17 years. Q. Have you had any previous experience in appraising property in the City of Norfolk? A. Oh, yes. Q. Residential property Y By Mr. Rixey: Q. But you never had any experience in appraising property in Algonquin Park? A. Not until this house, no.
102 100.Supreme Court of Appeals of Virginia. ~' A. M. '"TONES, sworn on behalf of the defendant, testified as follows: By Mr. Sacks: Q. Your name is A. M. Jones Y A. Yes, sir. page 147 ~ Q. Mr. Jones, what is your businessy A. Real estate. Q. How long have you been in the real estate business in the City of.norfolk? A. About 50 years. Q. About 50 ye_ars Y Q. Are you familiar with real estate values in the City of Norfolk? A. I think so. Q. Does that include values in Algonquin Park T A. I think so. Q. Did you, at my request, examine the property formerly belonging to Mr. MacGlothlin at Algonquin Park! Q. Is this a fair photograph of that property, Exhibit #4T A. That is the property.. Q. Did you examine the inside as well as the outside Y A. I did. Q. Did you examine it thoroughly? A. Yes, sir. Q. What would you say is a fair market value of that property; that is, the house and lot? A. Inside the building is of the very best material as far as I could judg e. The mechanics were good and page 148 ~ it is well joined together, in first class manner. in every shape. I would say, including the house, a seven-room house and two baths, tile baths, hard wood floors and everything, -the lot, the house is worth from $10, to $10, Q. That is the house? Q. What is the value of the lot on which the house is sfanding?. A. I estimate it was 70 feet front and 250 feet or more deep. I would say $25.00 a front foot. Q. 70 feet at $25.00 a foot would be approximately seventeen hundred and some dollars? A. $1, Q. Seventeen hundred and some dollars for the lot f
103 Harry Barr v. T. Miles MacGlothlin M. Jones. Q. And that is around $13,000.00t A. I would say so, yes, sir. Q. Did that include tl1e yenetian shades 7 A. No, sir. Q. $12, Mr. Rixey: $11; $10, plus $1, is $11, Mr. Sacks: $10, and $1, _is how much T Mr. Rixey: It is $10, plus $1,700.00, or page 149 } $11, The Court: That is a matter of arithmetic. Mr. Sacks : I make it $12, Mr. Rixey: You are taking the outside and I am taking the inside. By Mr. Sacks: Q. Does that include the venetian blinds, shrubbery, etc. 7 A. No, sir. CROSS EXAMINATION. By Mr. Rixey: Q. What is that property assessed for, Mr. JonesY A. I don't know, sir. Q. You mean you a.re l1ere to testify to the value of it and don't know its assessment 7 Q. You were asked to make an appraisal of it, were you Y Q. And you were not sufficiently interested to find o'q.t its assessment Y A. In assessing property sometimes you assess it for more than it is worth and sometimes less. Q. As.a general proposition property here is assessed for something more than 1 ts worth?. page 150 } Q. Would it surprise. you to know that it is assessed for something around $6,000.00Y A. I wouldn't be surprised. Q. Do you think that $10, would be' a figure out of the way for that property to be sold-at? A. You mean for the whole thingy
104 102 Supreme Court of Appeals of Virginia. E.G. Face. Q. Yes. A. Yes, I think it is worth that. Q. Do you think you could get more than that for it 'f A. I think so. Q. To whom could you sell it for more than that? A. I haven't a customer right off the bat, sir.. E.G.. FACE, swo~ _on behalf of the defendant, testified as follows:- Mr. Rixey: May it be understood that I am objecting to all of this? The Court: Yes~ By Mr. Sacks.: Q. Mr. Face, state your name and occupation, page 151 ~ please. A. E. G. Face, contractor and builder. Q. How long have you been in the real estate and building business in the City of Norf'olk? A. Since Q.. Are you familiar with the value of real estate in the City of Norfolk, in your opinion Y A. 1n my opinion, yes. Q. Does that include values of property at Algonquin Park? A. Yes, replacement values. Q. Mr. Face, did you, at my request, inspect and make an appraisal of this property here, the MacGiothlin property? A. That was the 11.ouse that I-the name I was told it was. Q.. Did yon get inside T A.. No, I didn't get inside.. Q. F rom what you saw on the outside, the material and construction of the house, and the lot, what, in your opinion,. would be a fair value, market value, for the property? A. Mr. Sacks, I went a little further than your question. I went to the Buiiding Inspector'"s office and Mr. Kaufman's office and gathered some information from there. page 152 ~ Q. You mean you examined the plans and specifications 7 A. Yes, from "the records, and the piece of ground was approximately 17,133 square feet, cubage of the house, exclusive of the porch, is 23,480 square feet.. From that and
105 Harry Barr v. T. Miles MacGlothlin. 103 E.G. Face. the information I got from the Building Inspect9r 's office I made an appraisal for replacement v:alue. Q. What is that appraisal Y A. I appraised the lot at $1, Q. And the house Y A. The house at $9,500.00, but I was told that the shades, the venetian blinds and an electric stove were included in the building. Q. Did you appraise that?. A. I put that at $250.00, and the shrubs and landscaping at $ Q. Your appraisal of the whole thing was around $11, ? A. $11, L think that is what it was. Q. Did you say $ for the shrubs Y A. $ Q. What was the $ for Y A. The electric stove and the other incidentals that were on the inside of the house. Q. Was that property just as valuable in February A. You meanpage 153 r Q. YOU saw the property on yesterday, I believe, or the day before t. A. Day before yesterday. Q. Did that same yalue exist in February of this year? A. If there has been no improvement put on since that time I would say practically, yes. Q. Was the value the same in June if there had been no improyements put on since February? A. I would say so. CR08S EXAMINATION. By Mr. Rixey: Q. You say that you appraised the house at $9, Q. And the lot at $1, A. $1, is approximately ten cents per square foot. Q. That would be to replace it new, I take iu A. As far as the house is coneerned. Q. Of course, there would be some depreciation in value between a new house and the house as it was constructed there?, A. Mr. Rixey, in such a short time I would say that there was no depreciation. If there was it wouldn't be appreciable.
106 104 Supreme Court of Appeals of Virginia. e. G. Face. Q. You valued the shrubs, the venetian blinds and other articles at $250.00? page 154 ~ A. They gave me a list of the items that were supposed to go along with the house. Q. what were those items? A. As I recall, stove, venetian blinds, shades and drapes. I think that is what I was told. Q. There were no draperies in that. :Mr. Sacks: Shrubbery and screens. By Mr. Rixey:. Q. You included the shrubbery, the screens, the shades, venetian blinds and electric cooking range? Q. Did you include the draperies? That was purely from memory. I was told. Q. You included those in the $250.00f A. I took everything included in your contract into consideration. Q. What do you think the electric stove was worth? A. Mr. Rixey, they run anywhere from $ to $375.00, according to the size. Q. I asked you what you thought that cook stove was worth? A. I told you I didn't g et inside of the house, and was on1y given an idea of what it was. Q. You just took an idea of what the cook stove would be worth! page 155 ~ A. A cook stove in that house in that locality. Q. How do you know what kind of cook stove was in that house? A. I told you I took it from what other people said who went in there. Q. You didn't see the cook stove? A. No. Q. And didn't know anything about it? A. No: Q. Could you see the venetian blinds? Q. From where? A. The outside. Q. How many were there T A. One for each window, I suppose. Q. How many windows in the homey
107 Harry Barr v. T. Miles MacGlothlin. 105 E.G. Face. ' A. I don't know.,, Q. You guessed the value? A. If you want to call it a guess. Q. How many shades were there A. One to the window, that is usual. Q. Is there a shade and a venetian blind at the same window? A. There are houses in Norfolk where they have shades and venetian hlinds both. page 156 ~ Q. Were there shades and venetian blinds at every window in this house Y A. I could not tell you that. That is a small item and would not make a lot of difference in the appraisal. Q. You say you put the shrubs down at $ A. The shrubbery and lawn at $ Q. -Shrubbery and lawn? Q. Doesn't that g o along with your value of the lou A. I wouldn't say so, no, sir. Q. -#\.ren't the shrubs planted in the ground f Q. And they would g o along with the value of the lot? A. No. Q. You mean to say that if you buy a lot A. If you have put the shrubbery there. Q. You wouldn't get the lawn and the shrubs along with it? A. You would haye it placed there after the lot was bought and the house built., Q. I don't understand what you mean. A. When you buy a lot ordinarily you buy it in a sub-division where there is no lawn or shrubs. Q. You are talking about a hypothetical case. Suppose I own a home and have a lawn with shrubbery page 157 ~ planted in it and there is g rass on the lawn, doesn't that shrubbery and grass go along with the sale of the propertyt A. Absolutely, but that doesn't still say you can't appraise the lot separately and the shrubs separately. RE-DIRECT EXAl\HNATlON. Bv 1\fr. Sacks: Q. You are appraiser for the United States Court here?
108 106 Supreme Court of Appeals of Virginia. W. B. Dawley. Harry Barr. Q. Official appraiser 1 Q. You appraise all the property handled by that CourU A. Not all. Q. All the personal property Y A. All the.personal property and some real estate. Q. What is a fair rental value for this :M:acGlothlin house 7 A. A fair. rental value? / Q. Yes, for the MacG lothlin house 1 A. Mr. Sacks, I think you are spreading me a little bit too far on that. I am not a :rental agent. page 158 ~ follows: W. B. DAWLEY, recalled on behalf of the defendant, testified as By Mr. Sacks: Q. Mr. Dawley, can yon state what would be a fair rental value for that property? - A. I would say a minimum of $r5.00 a month. HARRY BARR, th.e defendant, recalled, testified as follows: By Mr. Sacks: Q. Did Mr. MacGlothlin or anybody ever tell you that thev were going to sell the property for $10, , A. No, sir. Mr. Rixey: The evidence is that his attorney, Mr. Garnett, was told that. The Court: Is there a letter to Mr. Garnett f Mr. Rixey: Yes, sir. Mr. Sacks: I want to show that l\fr. Barr didn't know that or anything like that. The Court: As you gentlemen know better than I do, he is bound by that information from his counsel. page 159 ~ Mr. Sacks: We rest.
109 Harry Barr v. T. ]\files MacGlothlin. 107 MRS. M. E. 0. CHAPMAN, recalled on behalf of the plaintiff, testified in rebuttal as follows: By Mr. Rixey: Q. Mrs. Chapman, were you eyer, I think some time in April, in the presence of Mrs. Goodwin and Mrs. MacGlothlin Y A. I expect, when she speaks of it, all I remember was Mrs. MacGlothlin was at. the Bus Terminal and a real old lady there. If Mrs. Godwin-. Q. Goodwin. A. Whether she was-i don't say sh.e was or wasn't, but Mrs. MaeGlothlin said, '' Mrs. Chapman, what luck have you had with your advertisement?" and I said, "We have sold it", and she said, ''What are they going to pay?'' and I said, "$12,000.00". She said, "Do you think Mr. MacGlothlin would take $12, for that T It is worth $18,000.00' '. Mr. Sacks: I object. The Court: I sustain the objection. page 160 ~ By Mr. Rixey: Q. I believe Mrs. Goodwin said you made the. statement that Mr. Barr didn't sign anything but an option Y A. I never heard of it, Mr. Rixey. It is news to me. Mrs. MacGlothlin didn't ask me that. Q.. You claimed it was an out and out sale, did you Y Mrs. MacGlothlin asked me did I have any luck with it. ~ Q. Do you claim it was an option or an out and out sale? A. I never heard of the option until today. Q. Are you claiming commissions on this sale from Mr. Barr? A. Absolutely. Q. You claim Mr. MacGlothlin owes you commissions on -the sale? A. I sold it and- Q. That is in addition to the sale Mr. Truitt made? A. I had nothing to do with that sale whatsoever. Mr. Sacks: Is this rebuttal testimony? The Court: Some lady, Mrs. Goodwin, testified to some:. thing, I think. It doesn't amount to much one way or the other.
110 1()8 Supreme Court of Appeals of Virginia. Mrs. M. E. 0. Chapman. By Mr. Rixey: Q. Yon sat here and heard the testimony of page 161 ~ Mr. Barr and Mrs. Barr to the effect that both yon and Mr. :MacGlothlin, on the nig lit that you were up there at Mr. MaciGlothlin's house and this contract, was signed, _told them that the school was right around the corner! A. I never heard of the school until today because Mrs. Barr told me she had a grown daughter and a six-year-old child, and as far as the school, I never heard the school mentioned in any way, shape or form until today; never been mentioned. Q. Was anything said at that time, on the occasion of the signing of this little slip of paper here, about any necessity for Mrs. MacGlothlin signing it Y A. Her name was never mentioned. Q. Was anything said about any necessity for Mrs. Mac Glothlin signing the formal contracu The Court: I understood her to testify this morning that nothing was said about it. Mr. Rixey: I was not sure. The Witness: Yes, sir. The Court: That is my recollection. By Mr. Rixey: Q. Where was the contract signed by Mr. Barr, the formal contractf A. He said a while ag o it was signed in my house, but the., written contract was made, and I would not say page 162 ~ if it was signed in my house or Mr. MacGlothlin's house or at the office. I don't remember, to be perfectly frank. Q. Did you ever tell Mr. or Mrs. Barr or anyone else that Mrs. :MacGlothlin would not sign the deed Y A. No, sir. vve were not selling the property for Mrs.. MacGlothlin but Mr. Ma0Glothlin. CROSS EXAMIN.A.TION. Bv Mr. Sacks :., Q. You are interested in the outcome of this case, are you not? A. Not the case. I am interested in getting my commission.
111 Harry B"arr v. T. Miles MacGlothlin. 109 Mrs. M. E. 0. Chapman. Q. You say Mrs. Barr told you she had tw9 ohildren 7 A. Two children. Q. AB a matter of fact, she has four.. A. She said she had a grown daughter and she had become engaged. Q. She didn't say anything about having four children! A. No. RE-DIRECT EXAMINATION. By 1\fr. Rixey: Q. You spoke of Mrs. Barr telling you she had been looking at some property called the Bond property?.. A. Mr. Bonney of the Mutual Building Assopage 163 ~ ciation. She called me around 11 :00 or 12 :00 o'clock and said Mr. Bonney had offered her a mighty. nice house and they were thinking about buying it. Q. Where is that property? A. In Meadowbrook. Q. How far is it from the MacGlothlin house? A. Mr. Rixey, I would say you can see as far as distance is concerned, but you have to go around the bridge to get to it. Q. How far 1s It as the crow flies f A. I think I would be safe in saying it is not as far as from here to Granby street. Q. Is it farther away or nearer to a school A. The Bonney house is nearer. By Mr. Sacks: Q. There is no school in Algonquin Park! A. No. Meadowbrook is where the school is. By Mr. Rixey: Q. Mrs. Chapman, what effort did you make to sell this property for the account of Mr. Barr after Mr. Barr signed this letter of February 28th 1 Mr..Sacks: That certainly is not rebuttal, what effort she made to sell it. The Court: I understood her to say this morning she made an effort. Mr. Rixey: I want to go into the question of page 164 ~ $10, being a fair price for it. Mr. Sacks: You should have asked her that this morning.
112 110, _Supreme Court of Appeals of Virginia. Mrs. M. E. 0. Chapman. The Court: All right; go ahead. By Mr. Rixey: Q. What effort did you make f A. Mr. Truitt advertised it and we can show you how mtich money we spent' to advertise. it. We made every effort. Q. What do you think about selling the property for $10, ? Do yo-g:_ t}iink it was a fair price to get for it under the circumstances Y A. I think, if it had been a different time of the year instead of January, February, March or April, it would have brought a little more money. It is of fluted woodwork and is a very beautiful piece of property. Q. Do you think $10, under the circumstances was a fair pricey.a. Yes. The way it came about, how it happened, it was a question of a forced sale and it was sold for his account. RE-CROSS EXAMINATION. By Mr. Sacks: Q. What do you mean by a forced sale f page 165 ~ A. Mr. Rixey notified us we would have to sell it for his account. Q. For anything? A. No. Q. What do you mean by a forced saley A. Our commission were tied up in it and we took one or the other-mr. Barr had told us to sell it. There is a letter from him to sell it. Q. And as quickly as possible. Did you ever advertise that you were selling the property for the account of anybodyy A.. we advertised it. Mr. Truitt has the snms he spent on it, and I worked Qn it just as hard as I knew how. Q. How many people did yon have there before you sold to Mr. Brinsonf. A. Probably Captain-what is his name-a captain at the Navy Yard, Treadwell. Q. Where is he now 7 A. He is in Norfolk. He retired in June. Q. Is he the only one 7 A. No. Mrs. Jett wa.s very much interested in the property, and I told Mr. Barr about it, and Mr. Jett said -he didn't want to get into it.
113 Harry Barr v. T. Miles MacG lothlin. 111 J.rvi-ng F. Truitt. Q. Have you got any people here in Court today whom you have taken out to see the property? page 166 ~ A. No. IRVING F. TRUITT, recalled on behalf of the defendant, testified in rebuttal as follows: By Mr. Rixey: Q. Mr. Truitt, will you tell the jury, please, sir, how far this MacGlothlin home is from the nearest school there Y A. I went to: the office and checked the map and it is about 1,500 feet, according to the map. I measured froiµ the Meadowbrook school. It is very close to one of the best schools in the city, easy walking distance. Q. How many blocks is ity A. I suppose six or seven blocks. Q. Are you familiar with the Bonney property out there 1 A. Yes, sir. Q. How far is that as the crow flies from this MacGlothlin property Y A. It is a little bit further than I told you this morning than this property, about four blocks right page 167 ~ straight across. I told you two. CROSS EXAMINATION. By Mr. Sacks: Q. Why did you go there to see how far the school was from the house? A. WhyY Q. Yes. A. I was very much interested in the general situation there, and I was interested in this case, very much interested in this case. Q. Financially? A. Certainly. It is a pa.rt of my business. Q. Isn't that because you wanted to prove that the school was not as far from that home as they say it is? A. I wanted to satisfy my own self as to the distance. after the question came up. Q. If there had been no representation made as to the school, the distance of the school from the house, what dif-
114 112 Supreme Court of Appeals of Virginia. T. Miles MacGlothlin. ference would it have made to you? Mrs. Chapman said there was nothing said about the school. A. It is a perfectly natural thing, the question having come up then. The first time I ever heard of it was today. By Mr. Rixey : Q. I asked you to do it a.t lunch time, didn't I? page 168 ~ T. MILES MacGLOTHLIN, the plaintiff, recalled in rebuttal, testified as follows: By Mr. Rixey: Q. Mr. l\facglothlin, Mrs. Barr testified that at the time of the signing of this little paper marked Exhibit #1 at your home on Friday night, February 17th, you said, ''My wife is in an insane asylum", and also "Don't tell anybody that it is sold because it is not sold", or words to that affect. Did you make any statements to that effect to Mr. and Mrs. Barr? A. No, I didn't. Q. Was your wife in an insane asylum? A. No, sir. Q. Has she ever been, as far as you know? A. No, never has. Q. State whether or not you told l\ir. and Mrs. Barr that the school was right around the corner. A. No, sir; the school was never mentioned to me at all. The first I heard of it was this morning. page 169 ~ Q. State whether or not you ever told Mr. and Mrs. Barr that Mrs. MacGlothlin would not sign the deed., A. No, never mentioned it to them. Q. Did you ever tell anyone that Mrs. MacGlothlin would not sign the contract? A. No. Her name was never mentioned. Q. Was there ever any sug gestion made to you that Mrs. MacGlothlin should sign this contract? A. No. Her name was not mentioned. Q. Was any effort made to get Mrs. MacGlothlin to sign the contract? A. None whatever.
115 Harry Barr v. T. Miles MacGlothlin. 113 Mrs. Genevieve M aeon. CROSS EXAMINATION. By ]\fr. Sacks: Q. You heard Mrs. MacGlothlin's testimony read here today, did you not? You were in Court. A. Yes, I heard it r.ead. Q. Is what she says truey A. I haven't talked to her and I don't know. Q. You heard her testimony read here, the testimony that was taken up at the sanitorium where she is 7 A. I heard that. Mr. Rixey: I object. It is unfair to ask him to take the whole testimony like that and ask him if it is true. This gentleman has not seen his wife. There is no page 170 } objection to your asking him if there is any particular part of it incorrect. 1\fr. Sacks : Let him tell which is false then. Are we agreed on the date that the Brinson deed went to record 7 Mr. Rixey: I don't know what it is. Tell me what it is and it will be all right. Mr. Sacks : I will tell you in a minute. Can we agrea that the deed was dated June 1st and recorded June 15th Y MRS. GENEVIEVE MACON, sworn on behalf of the plaintiff, testified in rebuttal as follows: By Mr. Rixey: Q. Will you please state your name? A. Genevieve Macon. Q. where do you work 7 A. At the Naval Base. Q. Miss Mason? A. what is that? page 171 ~ Q; Mrs. who? A. Macon. Q. Mrs. Genevieve Macon 7 A. M-a-c-o-n. Q. Mrs. Macon, were you in the home of Mr. MacGlothlin 01;1. a night which has been described as Tuesday shortly after the 18th of February when Mr. and Mrs. Barr came there?
116 114 Supreme Court of Appeals of Virginia. Mrs. Genevieve Macon. Q. What was the occasion for your being there? A. As I recall it, Mr. MacGlothlin had asked me to come out to get some things that he wanted me to have. Q. You say you were there when Mr. and Mrs. Barr arrived? Q. Did yon hear any conversation between Mr. and Mrs. Barr on the one side and Mr. MacGlothlin on the other? A. Yes, I.did., Q. Will you please tell the jury what that conversation was, as nearly as you can recollect Y A. I will give you the gist of the conversation. I don 1 t remember it word for word, but my idea was that Mr. and Mrs. Barr were trying to break their contract with Mr. Mac Glothlin. Q. Do you recall what excuse Mr. and Mrs. page 172 } Barr gave him for breaking the contract? A. As I remember it concerned something about Mrs. Barr's-Mr. and Mrs. Barr's daughter. Q. Was anything said about any school? A. I never heard a thing about the school. Q. What did Mr. MacGlothlin say about that, with reference to letting them out of -the contract? A. He was opposed to letting them out of the contract. I do recall this part of the conversation: He said, '' Mr. Barr, if you had a contract with son;ieone for jewelry would you expect them to break the contract Y '' and Mr. Barr said he would not. CROSS EXAMINATION. By Mr. Sacks: Q. You work for Mr. MacGlothlin Y Q. At the Naval BaseY Q. He is your superior? Q. Where was this conversation, in what part of the Mac Glothlin home 7 A. Part of it wa-s in the kitchen and part in the living room. Q. Did you follow Mr. MacGlotblin around in page 173 ~ the house with the Barrs Y A. Yes, I did.
117 Harry Barr v. T. Miles MacGlothlin. 115 Mrs. Genevieve Macon. Q. Whyf A. Just on my own accord. Q. Were you interested in the sale of the property? A. I was interested in Mr. MacGlothlin 's welfare. Q. In the sale of the property f A. No, just because he was a friend of mine. Q. He discussed it with them in the kitchen, did he not, most of the conversation 7 A. Yes, he did. Q. Were you ever in a different part of the house from where Mr. MacGiothlin and the Ba.rrs were at any time that nig-ht7 A. If I recall, they were in the kitchen there a few minutes alone. Q. Was Mr. Phil Barr there f Q. He was there? Q. Wasn't he entertaining you and another young lady, there talking to you, while Mr. MaeGiothlin was talking to Mr. and Mrs. Barr T.A. I think I said there were a few minutes I wasn't in page 174 ~ there with them. Q. In other words, you didn't know what Mr. and Mrs. Barr were coming there to see Mr. Mac-. Glothlin for that nighu.a. I hadn't the slightest idea. Q. So there was nothing there to arouse your curiosity A. Not the least. Q. You heard he had sold the house to the Barrs Y.A. No, I hadn't heard he had sold the house to the Barrs but I had heard he had sold the house. Q. Did you know the people to whom the house was sold f A. Not until I heard the conversation. Q. You were not curious enough to know who was coming there or what they were coming there for T.A. I hadn't the slighest idea who was coming there.
118 - 116 Supreme Court of Appeals of Virginia. J. BARBOUR RIXEY, recalled on behalf of the plaintiff, testified in rebuttal as follows: By Mr. Rixey: Q. Mr. Rixey, in all of your negotiations with Mr. Garnett did Mr. Garnett at any time claim that there was page 175 ~ any misrepresentation on the part of Mr. :M:ac Glothlin or Mrs. Chapman with reference to the proximity of the property to a school'? A. The school was never mentioned during any conversation I had with Mr. Garnett, so far as I know, and no other claim was made of any misrepresentation at all. Q. State whether or not, in all of your negotiations witli Mr. Garnett, you were notified that there was any claim on the part of 1\fr. and Mrs. Barr that Mrs. MacGlothlin was expected to sign the contract. A. It was never mentioned at all. Mr. Sacks: He went over all of that when Mr. Rixey was on the stand before. Mr. Rixey: I don't think so. The Court: I am not positive about it at all. Mr. Sacks: This is the deed we got from the Clerk's Office,.Mr. Rixey. By Mr. Rixey: Q. There were several notes which you were using. I ask you to look at those notes there and state if you informed Mr. Garnett that 1\fr. Barr had an offer of $10, for the property. Mr. Sacks: I am certain he went over that. I am certain Mr. Rixey testified to that before. The Court: So many people have testified to so page 176 ~ many different things that I would not pretend to say. Mr. Sacks: He had his letter out here and introduced a c9py of it in evidence. A. I notified Mr. Garnett on May 20th that Mr. l\facglothlin had been trying to sell the house for $12, and he had an offer of $10, By Mr. Rixey: Q. What did Mr. Garnett reply to that?
119 Harry Barr v. T. Miles MacGlothlin. 117 J. Barbour Rixey. Mr. Sacks: He went over that and the letter is in evidence. Mr. Rixey: I want to connect it up with this deed. A. :Mr. Garnett said he would report it to his client, and a few minutes later the same day he called me and said Mr. Barr had nothing further to say. By Mr. Rixey: Q. And that was before the property was sold to Mr. Brinson, was it notf.a. Yes, sir. Mr. Sacks: Do you have to ask all of that to get at the deed? By Mr. Sacks: Q. What is the date of this deed, Mr. Rixey7 A. The first day of June, Mr. Sacks. Q page 177 } A Q. What is the date of the acknowledgmenu A. The 7th day of June, Q. what is the date on which it was recorded f A. The 15th day of June, Mr. Rixey: Vl e rest, your Honor. Thereupon, at 3 :45, the jury was adjourned to November 2nd, Mr. Sacks: I want to make a motion now to strike out the plaintiff's evidence. Your Honor will recall that the evidence of the plaintiff himself, and even the plaintiff's witnesses, was to the effect that the property, the market value of the property at the time of the breach and at the page 178 ~ time of the re-sale was just the same as at the time of the making of the contract. I don't think there is any discrepancy among any of the witnesses as to that. Certainly the plaintiff has testified to that and he cannot rise any higher than his own testimony in making out his case. Our Court has laid down the law which governs' cases of this 1 kind. Admitting, for the sake of argument, that there was a bona fide contract and that we breached the con-
120 118 Supreme Court of Appeals of Virgi a. tract for no reason whatsoever, then the plaintiff had- three remedies open to him and having elected he is bound by his own election. That is decided in the case of the Definife Con~ tract Buildvng &~ Loa,n, Association v. Titmin, which went up from this Court and in which case yonr Honor was reversed. It was decided in 1932, the opinion being written by Justice Eppes. I have the case in 164 S. E. page 562. Here is what the Court says.as to the law applicable to the breach of contracts and the sale of real estate: '' As a general rule, where the owner of real estate has made ail executory contract to sell it to a vendee, if the vendee fails or refuses to accept a deed therefor and pay the purchase price, the vendor has no authority to make a resale of the property for the account of and at the risk of the vendee. He is limited to one of three remedies: (1) He may sue for specific performance, and in such suit page 179 ~ have the property resold at the risk of the vendee. (2) In Virginia and some other states, he may, if he is ready, willing, and able to comply with the contract on his part, bring an action at law against the vendee for the unpaid purchase money. (3) He may retain the property, or sell it to another, and bring an action against the vendee for damages for the breach of the contract.'' That is the remedy he pursued. He brought no specific performance suit in order to recover the purchase price, but resold the property. When he does that here is the burden he assumes- The Court: W a.s he requested to sell it by Mr. Bard Mr. Sacks: No, sir. Mr. Barr, in that letter, if you take the letter at its face value, says "You sell it for $12, and all over that we split". If the letter speaks for itself that is what it means. The Court: 1\fr. Barbour Rixey testified he reported to Mr. Garnett he had sold it for $10, Mr. Sacks: "If he elects to pursue the third course, generally the measure of his damages is the difference between the contract price and the salable or market value of the property at the time of the breach, against which the vendee is entitled to credit for any sums paid by him on the purchase price. The vendor has no authority to make a resale of the property for the account. of and at the risk of the vendee, or power to fix conclusively the amount of dampage 180 ~ ages by making a resale of the property. But the amount received therefor at a resale, public or
121 Harry Barr v. T.. ]\files MacGlothlin. 119 private, fairly made within a reasonable time after the breach, is admissible upon the question of the salable or market value of the property at the time of the breach; and, where the first sale was at public auction, after proper advertisement and notice to the vend-ee, under. proper conditions, and upon the same terms or not less favorable terms t}lan those upon which it was sold to the vendee, the price received at the second sale estafblishes prima facie, though not conclusively, the salable or market value at the time of breach.'' I submit, if we take the plaintiff's case, disregarding all of the defendant's testimony and present a bona fide valid contract, then my friend could have come into Court with a specific performance suit, sold the property and taken a. judgment for any deficiency. I submit that all of the evidence shows he has suffered no damages because he was entitled only to the difference between the contract price and the salable or market value of the property at the time of the breach. It isn't what they get for it. That is not the test, but what is the fair market value, and I submit that all of the evidence, with the exception of Mr. Face, and he puts it at about $ difference, is that it was worth the c.ontract price. That small difference is offset by the fact that this property was used by J\fr. MacGlothlin for four or page 181 ~ :five months after the alleged contract was executed. - The Court : I overrule the motion. Mr. Sacks: We save the point, sir. Thereupon, at 4 :30 P. M., an adjournment was taken to November 2nd, 1939, 10.:00 A. M. page 182 r Norfolk, Virginia, November 2nd, Met at close of recess. MORNING SESSION. Present: Same parties as heretofore noted. Mr. Rixey: with the consent of Mr. Sacks, I want to put Mr. Truitt on with reference to what he was paid on the Brinson sale. Mr. Sacks said the amount was not stated. The Court : I thing it was testified to. Mr. Rixey: I thought so, too, but Mr. Sacks said it was not.
122 120 Supreme Court of Appeals of Virginia. IRVING F. TRUITT, recalled on behalf of the plaintiff, testified as follows: By Mr. Rixey: Q. Mr.. Truitt, will you state, please, what compage 183 ~ missions you were paid on the Brinson sale. A. The regular real estate commission, $ Q. How was that fixed 1 A. Five per cent on the first Five Thousand Dollars and three per cent on the balance. By Mr. Sacks: Q. Did you sell that property to Mr. Brinson for cash? A. It was cash-i can't say whether he assumed the mortgage and paid the difference in cash. Yes, I think he paid the difference in cash and assumed a mortgage for-there was a mortgage on the property, a small one, and he assumed it and paid the difference. Q. The mortgage on the property was forty some hundred dollars, was it not f A. I think that is right. I think there was forty some hundred dollars mortgage on it at four and one-half per cent. It was a very small percentage. Q. He didn't pay all c.ash 1 A. He paid the equivalent of cash; he paid the difference in cash. It was the equivalent of cash. page 184 ~ Thereupon, the Court and counsel retired to the Judge's Chambers for the preparation of instructions. Mr. Sacks: May I state for the record what Mr. Barr would have said in rega1 d to that letter of February 28tl1, had he been allowed to testify to it f Mr. Rixey: You may state it. It is all right. Mr. Sacks: W c expected to prove by the defendant, Barr, that a few days after he had notified the plaintiff and Mrs. Chapman that he was not going to take the property because of the misrepresentation as to the location of the school, and after which Mrs. Chapman had advertised the property, she called the defendant up and told him that she would like to have a letter authorizing her to sell the property, that the defendant told her he didn't see why she wanted a. letter since he had told her aud the plaintiff some days before that lie wasn't going to take it and gave his reasons therefor, and
123 Harry Barr v. T. ]\files MacGlothlin. 121 that she had already advertised it, that Mrs. Chapman replied that she wanted something in writing because of the WFitten contract then outstanding, and that he wrote the letter at her request, which she, herself, dictated to him over the telephone, and that Mrs. Chapman told page 185 r him if he gave her that letter she would give him one-half of what the property brought over and above the contract price for the trouble he had been put to. Note : Court and counsel returned to the Courtroom and the jury was instructed as follows: PLAINTIFF'S INSTRUCTION #1 (GRANTED). "The Court instructs the jury that the formal contract in evidence between MacGlothlin and Barr is a binding contract of sale between the parties ; and not an option ; and if you believe from the evidence that the plaintiff, MacGlothlin, conditioned upon the defendant Barr performing his obligation simultaneously, was willing and able to perform his obligation under the contract as written, or, if you believe from the evidence that an extension of settlement date was agreed upon, then as extended, and that the defendant Barr failed and refused to comply with his obligations, you should find for the plaintiff.'' l\fr. Sacks: The defendant objects and excepts to the action of the Court in granting Plaintiff's Instruction page 186 ~ # 1 because it tells the jury as a matter of law that the contract or alleged contract signed by the parties was a binding contract of sale when the def encl, ant's evidence is to the effect that the contract for the sale of the,property was not to be effective until it was also signed by Mrs. MacGlothlin, and whether or not the agreement was signed upon such condition is a question for the jury; that both the memorandums signed on the night of February 17th and the more formal contract bearing date of February 18th, were introduced in evidence by the plaintiff upon which he is relying for recovery. It is, therefore, one contract and what agreement was made at the time when the first paper was signed with reference to its not taking effect until Mrs. MacGlothlin signed the contract would also apply to the more formal paper. On the other hand, if the more formal paper is considered a separate contract, then the uncontraclicted evidence is that it was signed on Sunday and is, there-
124 122 Supreme Court of Appeals of Virginia. fore, void, and the plaintiff would be relegated to the original memorandum which the defendant claims was not to take effect until signed by Mrs. MacGlothlin. page 187 ~ PLAINTIFF'S INSTRUCTION #2 (GRANTED). "The Court instnrnts the jury that under the contract between MacGlothlin and Barr as written, MacGlothlin had a reasonable time after March 18th to obtain the signature of his wife to the deed ; and this is true even though you may believe from the evidence that no extension of the settlement date was agreed upon. And the Court further instructs the jury that if you believe from the evidence that Barr either personally or through his agent or attorney gave notice to MacGlothlin, his agent or attorney, that he, Barr, would not perform the contract, then from the first time of such notice, there was no obligation on the part of MacGlothlin to obtain the signature of hir-i wife or tender the deed, and thereafter Barr is estopped to question the ability of MacGlothlin to perform his obligation under the contract.'' Mr. Sacks: We object and except to the action of the Court in granting Plaintiff's Instruction #2 because it shows on its face that it is not supported by the evidence. PLAINTIFF'S INSTRUCTION #3 (GRANTED). '' The Court instructs the jury that if you believe from the evidence that after the execution _of the contract between Mac Glothlin and Barr there was an agreement bepage 188 ~ tween Barr or his agent, and MacGlothlin that the settlement date should be extended, then such extension was effective, and you should consider the contract as modified to that ext_ent. '' Mr. Sacks: The defendant opjects and excepts to the granting of Plaintiff's Instruction #3 on the ground that there is no evidence that any agent of the defendant negotiated for any extension of time for settlement, and the giving of this instruction may confuse the jury as to whether or not Mr.
125 Harry Barr v. T. Miles MacGlothlin. 123 Garnett was acting as counsel for the defendant at that time and might have given such authority. PLAINTIFF'S INSTRUCTION #4 (GRANTED). '' The Court instructs the jury that,,if you believe from the evidence that after the execution of the sales contract between MacGiothlin and Barr, Barr authorized Mrs. Chapman to make a resale of the property, the1~ Mrs. Chapman i11i attempting to make a r2sale for Barr was the agent of the defendant Barr.'' Mr. Sacks: We except ~o the granting of Instruction #4 for the plaintiff on the ground that the evidence shows that Mrs. Chapman testified that when she resold the property that she sold it for Mr. MacGlothlin, and secondly that the letter which Barr signed authorizing Mrs. Cha.p page 189 ~ man to sell didn't make her a general a.gent but a special agent to sell the property at a specific price, and her compensation to be fixed in accordance witl that selling price, and that she did not sell to Brinson. PLAINTIFF'S INSTRUCTION #5 (GRANTED). "The Court instructs the jury that even though you may believe from the evidence that Mr. MacGlothlin or Mrs. Chapman told Mr. Barr that the school was around the corner, and that Mr. Barr signed the contract on the strength of such representation, and that such representation was material and :False; yet if you further believe from the evidence that at the time :Mr. Barr signed the letter of February 28th addressed to Mrs. Chapman authorizin~ her to sell the property for him, Mr. Barr had ascertained the location of the school, then Mr. Barr is estopped to set up such misrepresentatio11 as a defense.''.mr. Sacks: The plaintiff objects and excepts to the granting of Instruction #5 for the plaintiff for the reason that the defendant should have heen permitted to testify as to the reason for his writing the letter of February 28th to :Mrs. Chapman, which evidence would have shown that he did not waive any representations that had been made to page 190 r him as an inducement to buy the property.
126 124 Supreme Court of Appeals of Virginia. PLAINTIFF'S INSTRUCTION #6 (GRANTED). '' The Court instructs the jury that if you find for the plaintiff, the measure of his damages is the difference between the two figures ascertained as follows: (1) The contract price of $12,000.00, less the $ paid and a reasonable rental value for the propel'ty for the time it was occupied by the plaintiff from the date of settlement. to the time he sold to Brinson. (2) The price at which the property was sold to Brinson, less the real estate commission paid on the Brinson sale. You may allow intetest on the sum a.warded." Mr. Sacks: The plaintiff objects and excepts to the action of the Court in granting Plaintiff's Instruction #6 on the ground that it incorrectly sets out the measure of damages. The evidence shows that after the defendant refused to purchase the property the plaintiff sold it at the risk of the defendant and that the proper measure of damages in such cases is not what the property brought at resale made by the plaintiff, but the measure of damages is the difference between the contract price and the market value of the property at the time the contract was breached, so it is page 191 ~ error to tell the jury that the damages is the difference between the contract price and what it sold for to Brinson at a private sale, and furthermore the instruction fails to tell the jury that the sale should have been fairly made and that the plaintiff should have made a reasonable effort to minimize the defendant's damages. PLAINTIFF'S INSTRUCTION #7 (GRANTED). "The Court instructs the jury that it was not necessary for the sales contract to be signed by Mrs. MacGlothlin for it to be a binding contract of sale.'' l\ir. Sacks: We object and except to the action of the Court in granting Plaintiff's Instruction #7 on the ground that it tells the jury that the contract could be enforced against the defendant even though the wife had never signed a deed to the property, and thereby compelled Defendant to pay the purchase price for property in which plaintiff's wife would
127 Harry Barr v. T. Miles MacG lothlin. 125 have had a dower interest which is an encumbrance oil the property. page 192 } DEFENDANT'S INSTRUCTION ld (GRANTED). '' Th~ Court irtst;ructs the. jury that the burden is on the plaintiff to pi'ove his case by a preponderance of the evidence.'~ DEFENDANT'S INSTRUCTION 2D (GRANTED). "The Court instructs the jury that the plaintiff is bound by all repre~entations _ma~e by Mrs. Chapman, his agent, i_n the negotiations with the defendant concerning the sale of the plaintiff's real estate.'; PLAINTIFF'S INSTRUCTION X (REFUSED). "The Court instructs the jury that there is no evidence of fraud as a defense in this case.'' DEFENDANT'S INSTRUCTION 3D (REFUSED). "The Court instructs the jury that if you believe, ftom the evidence, that at the time the defendant signed the agreement to purchase the plaintiff's property it was understood between the patties tl1at said contract should not become effective until the plaintiff's wife also signed the same; and ~hat be!ore the plaintiff's "1ife signed. it the defen~ant cancelled said cont tact, then you shall fiiid for the defendant.'' Mr. Sacks: We except to the refusal of the Court to grant Instruction 3D ort the ground that the instruction page 193 ~ is fully supported by the clef endant 's testimony to the effect that at the time he executed the contract it was understood that it was not to become effective until also signed by the plaintiff's wife, the defendant had the right to withdraw his offer.
128 126 Supreme Court of Appeals of Virginia. DEFENDANT'S INSTRUCTION 4D (REFUSED). '' The Court instructs. the jury that if you believe from the evidence, that the plaintiff's agent, as an inducement to the defendant to buy the plaintiff's property, stated to. the defendant that the property was very close to a public school; that the defendant relied on that statement and would not have agreed to purchase the property if it was not close to a public school; that said representation was untrue, and that as soon as the -defendant ascertained that said property was not close to a public school he informed the plaintiff's agent: that he would not buy the property, then you shall find for the defendant.'' l\ilr. Sacks : We except to the refusal of the Court to grant Instruction 4D asked for by the defendant on the ground that. the instructio.n correctly states the law to the page 194 r effect that if the plaintiff made a material representation to the defendant concerning the distance of the school from the premises, and that the defendant :relied upon such representation which was untrue, and th~ defendant would not have purchased the property had he known that the school was not at the place where the plaintiff said it was, he had a right to rescind the contmct on th~t ground. DEFENDANT'.S INSTRUCTION 5D (REFUSED). ''The Court instructs the jury that if you believe, from the evidence, that the plaintiff was not in position to deliver to the defendant a proper deed of bargain and sale to said property executed by himself and his wife at the time set for settlement in said contract, then you shall find for the defendant." Mr. Sacks: The defendant objects and excepts to the refusal of the Court to grant Defendant's Instruction 5D on the ground that it is a correct statement of the law, and that the evidence shows that never within the time :fixed for settlement under this contract was the plaintiff able to obtain his wife's signature to the deed, hence he was not in position during that time to deliver a proper deed for the. page 195 ~ property, and tl10 defendant was entitled to a deed free from the plaintiff's wife's contingent right of dower.
129 Harry _Barr v. T. Miles MacGlothlin. 127 DEFENDANT'S INSTRUCTION 6D (REFUSED). ~~The Court instr~cts the jury that even though you may beheve, from the evidence, that the defendant breached his agreement to buy the property without any legal excuse; yet. if you further believe, from the evidence, that the fair mar_ ket value of said property a.t the time of said breach was the same or greater than what it was on February 18th, 1939, then you shall find for the defendant.'' ' Mr. Sacks : We except to the action of the Court in refusing to grant Defendant's Instruction 6D on the ground that the law clearly sets out the measure of damages where a sale of real estate is made by the owner at the risk of the alleged vendee, and in this case the evidence shows that the salable or market value of the property a.t the time of the breach of the alleged contract was equivalent to the contract price. DEFENDANT'S INSTRUCTION 7D (REFUSED). '' The Court instructs the jury that if yon believe from the evidence that the contract between the parties was executed on Sunday, the contract is void and you page 196 ~ should find for the defendant.'' Mr. Sacks: The defendant objects and excepts to the refusal of the Court to grant Instruction 7D on the groundthat it clearly states the law, and the evidence is undisputed that Mrs. Chapman, who made the contract, was in the real estate business for a number of years, that that was her business, and that a contract of a price involved in this case made by a real estate agent in the ordinary course of his or he1 trade is a misdemeanor in this State and hence is void and unenforcible. DEFENDANT'S INSTRUCTION SD (REFUSED). '' The Court instructs the jury that it was the duty of the plaintiff when he resold the property at the risk of the defendant to make all reasonable efforts to minimize the defendant's damages, and to resell the property at a sale fairly made and for tlie highest price obtainable. And if you believe. from the evidence, that the plaintiff failed to so minimize the defendant's damages and to make a bona fide reasonable effort
130 128 Supreme Court of Appeals of Virginia. to obtain as near $12, for the property as he could get, and merely sold to Brinson for $10, because the latter would not pay any more, then the plaintiff can only recover the difference between the contract price of the property and what the fafr market. value of said property was page 197 ~ at the time the defendant breached the agreement.'' Mr. Sacks: Yv e except to the refusal of the Court to give Instruction SD on the ground that the instruction specificallv tells the jury the law as to the measure of damages applicable in this case. The plaintiff's pleadings and eyidence show that this was an action for damages for breach of a contract to purchase real estate, and that the property was resold at the risk of the vendee by the plaintiff. The law is well settled in this State tliat the measure of damages is not what the property brought at resale but the difference between th<~ contract price and a fair salable or marketable price at the time of the breach of the contract. DEFENDANT'S INSTRUCTION 9D (R.EFUSED). "The Court instructs the jury tlrnt before the plaintiff can recover in this case, the burden is on him to prove, by a preponderance of the evidence, that he resold the property at a bona fide sale fairly made, and that he madp. a bona fide effort to mitigate the defendant's damages." Mr. Sacks: We except to the refusal of the Court to grant Instruction 9D as it clearly states the law to the page 198 ~ effect that it is the duty of the plaintiff to prove that the sale was fairly made and that he made a bona fide effort to mitigate the defendant's damages, and it is a question for the jury whethet or not, under the evidence, the plaintiff did not make a fair sale and if he made a bona fide effort to mitigate the defendant's damages. The refusal of the Court to grant this instruction precluded the jury from passing upon the issue therein raised. Mr. Rixey: The plaintiff excepts to the action of the Court in granting any instructions for the defendant on the ground that the evidence in this case shows conclusively that the contract was executed by the parties and that Mr. Barr breached the contract; that if there could have been any defenses to the original contract they were all waived by
131 Harry Barr v. T. Miles MacGlothlin. 129 the letter of Mr. Barr of February 28th addressed to Mrs. Chapman, which letter was written by him ten days after the contract was signed and after he had notice of the location -of the school, and the fact that Mrs. MacGlothlin had not signed the contract on February 28th, as proven by the letter to Mrs. Chapman shows that Mr. Barr had f1;1ll knowledge\ of all the defenses which he now asserts and that nage 199 ~ he definitely elected to be bound by the contract. Note : The instructions were read by the Court to the jury..argument was made by Mr. Rixey, on behalf of the plaintiff, and by Messrs. Glasser and Sacks, on behalf of the defendant. The jury retired to consider its verdict, and rendered the following: '' We, the jury, find for the plaintiff in the amount of $2, L. M. Whitehurst.'' Counsel for the defendant thereupon made a motion to set aside the verdict on the ground that the same was contrary to law and the evidence, and because of the granting of the plaintiff's instructions over the defendant's objections, and the refusal to grant the instructions requested by the defendant, which motion was subsequently, to-wit, on December 18th, 1939, overruled, to which action of the Court in so overruling said motion the defendant duly excepted. The fo1lowing is the stipulation making the page 200 } Judge's opinion on the motion to set aside the verdict a part of the record; It is hereby stipulated by and between the parties that the written opinion of the Court rendered upon his action on the motion to set. aside the verdfot shall be considered as a part of the record in this cmc and copied by the clerk in the trans ~m ipt. of tho record. T. MILES MacGLOTHLIN, By.RIXEY AND RIXEY, his a.ttorneys. HARRY BARR, By HERMAN A. SACKS, his attorney, and BERNA.RD GLASSJijR.
132 130 Supreme Court of Appeals of Virginia..And the following is the opinion referred to in the stipulation: The main contention urged in this case -for a new trial is. that the court erred in the instruction as to the measure of damages... Where there is nothing more than a breach of an agreement to buy on the part of the vendee the di:ff erence between the contract price and the market value is the measure of damages, but in this case there is the additional and in my judgment the eontrolling circumstance that the vendee authorized the ag ent of the vendor to sell the property and if it broug ht beyond a certain price to divide the excess. page 201. ~ In such a case it seems to me that the vendol" can recover the difference between the contract price and the price the property brought on the resale. A somewhat ''analogous case is that of Mundy v. Garland,, 116 Va.. where the vendee agreed that the land could be resold etc. In that case the court held that the vendor could recover the deficiency. The authority to sell is analogous to that given in the Mundy case. The motion to set aside 'the verdict must be overruled~ page 202 ~ JUDGE'S CERTIFICATE. A. R.H.. I, A. R. Hanekel, Jndge of tbe,circuit Court of the City of Norfolk, Virg'inia, who presided over the foregoing trial of the case o f T. Miles 1\1:acGlothlin v. Harry Barr, in said Court, at Norfolk, Virginia, on November 1st and 2nd, 1939, do certify that the foregoing is a tme and correct copy and report of all the evidence, together with all the motions, objections and exceptions on tbe part of the respective parties, the action. of the Court in respect thereto, all the evidence, together with all the motions, objections, and exceptions on the part of the respective parties, the action of the Court in respect thereto, all tj10 instructions offered, amended, granted, and refused by the Court, and the objections and exceptions thereto; and all other incidents of the said trial of the said cause, with the motions, objections, and exceptions of the respective parties as therein set forth. As to the original exhibits introduced in e.vidence as shown by the foregoing report, to-wit: Plaintiff's Exhibits Numbers i to 14, both inclusive, and Defendant~s Exhibits A, B
133 Harry Barr v. T. Miles MaeGlothlin. 131 and C which have been-- initialed by me for the purpose of identification, it is agreed by the plaintiff and the defendant that they shall be transmitted to the Supreme Court of Appeals as a part of the record in this case in lieu of certifying to the court a copy of said exhibits. page 203 ~ I do further certify that the attorney for the plaintiff had reasonable notice, in writing, given by counsel for the defendant, of the time and place when the foregoing report of the testimony, exhibits, instructions, exceptions, and other incidents of the trial would be tendered and presented to the undersigned for signature and authentication, and that the said report was presented to me on the 15th day of January, 1940, within less than sixty days after the entry of the final judgment in said cause. Given under my hand this 15th day of January, Teste : A 1Copy ALLAN R. HANC~L, Judge of the Oireuit Court of the City of Norfolk, Virginia. ALLAN R. HANCKEL, Judge. I, Cecil M. Robertson, Clerk of the Circuit Court of tl1e City of Norfolk, Virgfoia, do hereby certify that the foregoing is a copy and report of the testimony, exhibits, instructions, exceptions, and other incidents of the trial in the case of T. Miles M:acGloth1in v. Harry Barr, and that page 204 ~ the original thereof and said copy, duly authenticated by the,tudg e of said Court, were lodged and filed with me as Clerk of the said Court on the 15th dav of.,janu~ry, CECIL :M:. ROBERTSON. Clerk of the Circuit Court of the City of Norfolk, Virginia. By W. ;Il. HANCKEL, Dep~ty. I, Cecil M. Robertson, Clerk of the Circuit Court of the City of Norfolk, Virgfoia, do certify that the foregoing is a true transcript of t.he record in the case of T. Miles Mac G]othlin v. Harry Barr, lately pending in said Court. I further certify that the same was not made up and completed and delivered 1,ntil the attorney for the plaintiff re-
134 132 _Supreme Court of Appeals of Virginia. ceived due notice thereof, and of the intention of the defendant to apply to the Supreme Court of Appeals page 205 ~ of Virginia for a writ of error to the judgment therein., Fee for copy of record $ Teste: A Copy-Teste : CECIL :M:. ROBERTSON,,Clerk of the Circuit.Court of the City of Norfolk, Virginia. By W.R. HANCKEL, Deputy. W. R. HANCKEL, Dy. Clerk. M. B. WATTS, C. C.
135 INDEX TO RECORD Page Petition for vvrit of En or Record Notice of Motion for Judgment Plea of Not Guilty Grounds of Defense Plea of Set-Off Verdict and Motion to Set Aside J udgnient, December 18, 1939,~Complained of Notice of Appeal Stenographic Report of Testimony, &c Mrs. M. E. 0. Chapman , 107 T. Miles MacGlothlin... 39, 112 J. B. Rixey vv. R. Asl1bur :. 58 Irving F. Truitt , 111, 120 Mrs. Frances Barr Mrs. Hazel Goodwin Iarry Barr , 106,. B. Da,vley A. l\i. Jones E. G. Face Mrs Genevieve :Macon J. Barbour R.ixcy Instr11ctions tt udg-e 's Certificate Clerk's Certificates
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