Heare v. O'Reilly

WOOD, J. Defendant appeals from a judgment in favor of plaintiff. Plaintiff claimed the proceeds of the sale of a house and lot, except the amounts advanced by defendant, with interest thereon, in the purchase and improvement of the property. Defendant, who held the legal title to the property, also claimed the proceeds. The court awarded plaintiff $2,085.17, which represented the difference between the selling price of the property and the amounts paid by defendant to purchase and improve said property, with interest on said amounts.

In August, 1942, plaintiff entered into negotiations for the purchase of a house and lot. The house had been partially burned, and the owner offered to sell the property for $1,400. About September 2, 1942, plaintiff told defendant that he planned to purchase the property. Plaintiff testified that the conversation took place in front of said property; that defendant told him it was worth “twice” as much as the purchase price asked and said, “let me buy that, you pay me, and I will put some of my money on that”; and that defendant also told him to see the owner and he would pay cash and get the property “cheaper,” and save plaintiff some money. According to defendant, plaintiff came to his home and told him about the property, said that he had $400 with which he could repair the house and make it a home, and asked defendant if he would be interested in financing it; that defendant replied if it could be “bought right” he would finance it for plaintiff and he would make the payments so plaintiff “would only owe” him rent. Subsequently, plaintiff and defendant talked with the owner of the property who agreed to sell it for $1,350. Defendant paid the purchase price and the property was conveyed to him. He and plaintiff then entered into a written contract, dated September 10, 1942, whereby defendant agreed to sell and plaintiff agreed to purchase the property for $1,350 to be paid at the rate of $15 “or more” per month “including interest at six per cent on the first day of each month beginning on the first day [575]of October, 1942. ’ ’ Time was of the essence of the contract. At the time of executing the contract plaintiff paid defendant $15, and $6.00 to reimburse defendant for escrow expenses. Plaintiff commenced repair work on the house and on September 17, 1942, while repairing the roof he fell therefrom and sustained injuries which confined him to his bed. He made no further payments on the property, and in November or December, 1942, while he was still confined to his bed, defendant called at his home and for the first time learned of the accident. Plaintiff testified that defendant then told him that he would release him from making the payments until he got on his feet—to “make no more payments”; that defendant said if plaintiff “ever got” on his feet for him to continue the repair work. Defendant testified that at that time plaintiff told him the “doctors and hospital” had his money and he was “broke,” and that defendant would have to take the property back and they would “fix it up” so defendant could get his money out of it; that he told the plaintiff he would take the property back and if plaintiff wanted to supervise the repair work he would “take care” of him. In February, 1943, plaintiff resumed repair work on the house, and thereafter defendant periodically advanced money for payment of labor and materials. Plaintiff performed some of the work, hired the workmen and purchased the materials, but received no compensation for such services. Defendant visited the premises at various times, and both plaintiff and defendant had keys to the house. Plaintiff performed services to improve the premises until the middle of November, 1943. While he was so engaged, he inserted an advertisement in a newspaper offering the property for sale, and as a result received a letter from a prospective buyer, John S. Milburn. Plaintiff delivered the letter to defendant who, on or about November 8, 1943, sold the property to Milburn for $5,500. Plaintiff was present when the purchase price was discussed and agreed upon.