High Fidelity Enterprises, Inc. v. Hull

[280]

DEVINE, J.—

The corporation which is plaintiff and appellant agreed to buy a parcel of property shortly before defendant-respondent actually bought it and received a deed to it, the former owner having made this situation possible by a complicated series of transactions. Plaintiff seeks specific performance. This owner, Gordon Pusser, had been employed by High Fidelity Enterprises, but was discharged in October 1959, and because there was litigation between him and his former employer and he feared attachment of the property, he conveyed the bare legal title, without consideration, to David G. Hoffman. The property is a lot on which there is a barn, adjacent to plaintiff’s store, and plaintiff was desirous of obtaining the barn. Hoffman had been negotiating with plaintiff even before he received the deed, and he continued to bargain. On March 30, 1960, plaintiff and Hoffman made an oral agreement of purchase and sale, which was confirmed by letter on April 7, 1960. The letter was not recorded.

On April 2, 1960, Hoffman quitclaimed to the attorney for Pusser, who quitclaimed to Pusser. Pusser put the property on sale through a broker who called it to the attention of respondent, Dr. Hull. After several inspections of the property, as described below, an agreement of Pusser to sell to Hull was signed. Record title had been in an owner prior to Pusser, Mrs. Heydenaber, who executed a deed to Hull which was recorded on June 8, 1960, and on the same day Pusser deeded to Hull. (Dr. Hull’s wife is also a defendant, but for convenience reference is made to him only as respondent in this opinion.)

A brief recitation of facts relating to possession of the property by High Fidelity must be given, because the question of notice by reason of possession is the essence of the case. The statement is put most favorably to respondent.

High Fidelity had used the barn as a warehouse for some time prior to the Hull purchase. The barn was in the rear of High Fidelity’s store, but on a separate lot. It was in miserable condition in structure and in maintenance. There was no water or sewer connection in it, and no electric lighting system. The building had been condemned.

As to the contents, Pusser, who was experienced in phonographic equipment, testified that the few items in the barn which belonged to plaintiff were of no value except to a junk-man, and that he had been told by the manager of plaintiff that the company abandoned all of the contents to him, Pusser. This manager was not called as a witness by plaintiff, nor was