Williams v. Graham

WILSON, J.

Defendant Graham agreed to convey certain real property to. plaintiff. The latter agreed to convey it to intervener. Upon defendant’s failure to make a conveyance plaintiff brought this action to compel specific performance of the agreement. Intervener filed his complaint in intervention praying judgment in his favor for specific performance in the event that plaintiff should be successful in his action against defendant, or in the alternative for the damages suffered by him if plaintiff should be unable to convey title.

Upon trial of the case on the issues arising between plaintiff and defendant the court adjudged that by reason of plaintiff’s failure to' perform his part of the contract he was not entitled to a decree for specific performance against defendant. The trial then proceeded on the complaint in intervention. Since the decree that plaintiff was not entitled to a conveyance of the property from defendant precluded a

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judgment of specific performance against him in favor of intervener, the only issue remaining was whether the latter could recover the damages suffered by him by reason of plaintiff’s default and if so how much.

At the time plaintiff entered into the agreement to convey the property to intervener the latter made a deposit of $1,000 on the purchase price. Plaintiff did not inform intervener that he was not the owner of the property or that there was any impediment to his making a conveyance of good title. About three weeks after the execution of the agreement and the making of the deposit plaintiff and intervener met in the office of the real estate broker who had negotiated the sale where plaintiff “explained exactly how the title to the property was,” and assured intervener that there was no doubt that he, plaintiff, would receive title to the property and that he would then convey it as required by their contract. He advised intervener “to go on with his plans, and wait, because he would get title to the property.”

The court found (1) that at the time the agreement was made plaintiff fraudulently concealed from intervener the fact that plaintiff was not the owner of and did not have title to the property and fraudulently instructed his agent not to inform intervener of that fact; (2) that when intervener learned that plaintiff did not have title the latter thereupon falsely represented to intervener that he, plaintiff, would get title to the property and would convey the same to him; (3) that the fraudulent concealment by plaintiff of his lack of title to the property and his later false representations relative thereto were made with the intent that intervener should rely on the belief that plaintiff did have or could get title to the property; (4) that relying on such fraudulent representations intervener sold property which he then owned and occupied in his business and because he could not obtain title to the property involved in this action he was compelled to rent as a tenant a portion of the premises previously owned and sold by him at a rental of $150 per month for six months in order to carry on his business.