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03/03/55 Elevated Concrete Inc., A v. Vic D. Zeve

March 3, 1955

ELEVATED CONCRETE INC., A CORPORATION, APPELLANT

v.

VIC D. ZEVE, THE UNITED STATES FIDELITY & GUARANTY CO., A CORPORATION, APPELLEES. 1955.CDC.15



Before PRETTYMAN, FAHY and BASTIAN, Circuit Judges.

UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT.

Date Decided: March 3, 1955.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FAHY

FAHY, Circuit Judge.

In a suit by a seller of real estate to recover from the broker and the latter's surety the amount of a deposit the broker had refunded to the purchaser, the question is whether the court below erred in directing a verdict for the defendants on the ground that the refund was warranted by the seller's inability to tender to the purchaser the type of conveyance the court thought was required by the contract of sale.

Appellant, Elevated Concrete Inc., contracted to sell certain Maryland land to a purchaser, Rosenkoff, initially undisclosed as the principal, for the contract was signed by a straw-man purchaser, Resenthal. Appellee Zeve was the broker and agent in the transaction and had secured the purchaser. Appellee United States Fidelity & Guaranty Co. is statutory surety of the broker under ยง 45-1405, D.C.Code 1951. Appellant sued the broker for the $5,000 deposit which the purchaser had left with him and sought judgment also against the surety as jointly liable to the extent of $2,500, the principal of its bond.

At the time and place fixed for settlement the purchaser, acting through the agent, refused to complete the purchase, contending that the deed appellant could give did not describe the land as required by the contract, that is, as lots surveyed and staked out on the ground. Appellant's position, on the other hand, was and is that the contract called for no such description and that he was prepared to convey in conformity with its terms. When the purchaser persisted in refusing to close the sale appellant demanded of the agent the $5,000 deposit, forfeitable at its option on default by the purchaser. The agent, however, returned the deposit to Rosenkoff.

On the trial before court and jury at the conclusion of all the evidence the court directed a verdict for appellees and thereafter denied appellant's motion for judgment non obstante veredicto or for a new trial. In an opinion accompanying the court's action on the motion it is stated, rightly we think, that the sole issue is whether appellant was able to tender performance in accordance with the terms of the contract. The conclusion that it was not able to do so rested upon the court's view that the undisputed evidence showed appellant could not deliver plotted or staked out lots as distinct from mere acreage.* The question, therefore, is whether the contract called for a conveyance in terms of plotted or staked out lots.

The land is referred to in the space provided in the printed form for its description as "No. 1. See Reverse". On the reverse side No. 1 is typed in the following language:

"No. 1. Plat attached & known as S.E. corner of Livingston Rd. & Indian Head Rd. containing 181 acres - known as Hart Park & tentatively [interlineated] approved by Park and Planning Commission & Suburban Sanitary Commission as Alpin Village."

The plat referred to is physically attached. It bears the legend "Proposed Alpine Village (Hart Park)" and delineates numerous numbered blocks and lots, with designated streets and courts, all within platted exterior boundaries.

The purchase price is stated to be $225,000 of which $75,000 is to be paid in cash. The purchaser is to give a first deed of trust for the balance "with release clause of Four Hundred ($400.00) Dollars per lot - all due in five years with a minimum of 20 Lots per release. No. 2. & No. 3. See reverse." No. 2 and No. 3 are typed on the reverse side as follows:

"No. 2. All Lots in Blocks 4-5-6-7-16-17-18-19 to be delivered at time of settlement free of encumbrances above totaling 151 Lots also the Lot for the ...


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