
    Mrs. A. Bridgeman vs. Star Realty Co.
    No. 7983.
    Court of Appeal. Parish of Orleans.
    Dinkelsnlel. J.
   Dlnkelspiel. J,

Plaintiff sues defendants representing that the latter held themselves out as agents for the sale of a pieoe of property in the City of Waveland, Mississippi, and on September 37th, 1915, obtained the signature of plaintiff to an offer for the purohaser of said property.

That it was stipulated in said offer that the sum of $800.00 should be paid in oash on a oertain date; that subsequently to the time fixed, Ootober 15th, 1915, plaintiff oalled at the offioe of defendants and informed them that she was unable to obtain $800.00 oash but would be able to pay $500.00 oash.

That thereupon the said defendants informed plaintiff that $500,00 as a oash payment would be satUfaotory and relying on theit statement obtained from plaintiff a deposit of ten per oent or $170.00 for the purohase of said property.

And petitioner further avers that it was her intention to abrogate and that she did abrogate the first negotiations looking toward a tentative agreement whioh oalled for a payment of $800.00 oash and substitute therefor a seoond agreement oalling for a oash payment of $500.00 and that on the representation of said defendants that $500.00 would be a satisfactory oash payment, she was induced to make the payment of $170.00 as the deposit in oonneotion with the sale.

Alleging further that subsequently the owner of the property refused the oash offer of $500.00, stating substantially that her agents had no authority to negotiate the transaction on a basis of a $500.00 oash payment and said owner in the presence of two witnesses at Bay St, Louis, Mississippi, on October 30th, 1915, when petitioner had gone to Bay St. Louis for the purpose of completing the sale, the owner refused to complete sale, announcing that she was not satisfied therewith.

Plaintiff avers further that upon this refusal she withdrew from the said transaction and announced her intention to canoel and annul any and all agreements or negotiations with reference to the purchase of said property and that the owner acquiesoed in said cancellation and alleging that she has made amicable demand upon the defendants for the return of the $170.00 without avail and that her signature to the document obtained by the defendants wasprocured by misrepresentation, she was entitled to recover the amount of said deposit from defendants.

Wherefore she prayed for judgment.

Defendants in their answer substantially admitted that they were a corporation doing business under the name of the Star Realty Company.

They denied that they obtained the signature of plaintiff under misrepresentation for the sale of property in the oity of Bay St. Louis, Mississippi; that they held themselves out as agents for any suoh property, but they did hold themselves out as agents for the sale of five and three-quarters aores of land, home, barn and so forth in Oainsville, not one mile from Nich ollson Avenue Station, Mississippi", and that they obtained the signature of plaintiff to an offer to buy the land for $1700.00 and that said offer stipulated that in the event of acceptance, plaintiff was to deposit $170.00 on aocount of the purohase price and her failure to oomplete the terms of the offer, defendants commissions on the sale, attorney's fees and costs of court for enforcing collection was to he paid by her and defendants further say that said offer was accepted by the owner of the property.

That the offer and acceptance was that $800.00 should be paid in cash on a certain date and that plaintiff promised that she would pay that sum On the date of the settlement of the sale of her property which was 3313 Marengo Street in the City of Hew Orleans and further represented that the said property had been sold and that final settlement would be made not later than October 13th, 1915 and that balance of the purchase price waB to have been payable at the rate of Twenty Five Dollars per monthj but instead of the $800.00 which should have been paid under the oontraot, plaintiff alleged that she would prefer to pay $500.00 which defendants offered to submit to their principal and do everything in their power to get her acceptance. They further admit that plaintiff made the deposit of $170»00 for the purchase of the property in question and insisting that plaintiff was bound by her written oontraot and not having complied therewith, the money, $170.00, was the property of their principals.

Wherefore they prayed for a dismissal of plaintiff's suit and for Judgment in their favor.

It is unnecessary and it would serve no practical purpose to quote at length, the testimony of either the plaintiff or the defendant, Schmaltz.

In many respects they do not differ and whilst they are notabsolutely in ha,rmony, one with the other, yet there is sufficient to Justify the belief that this contract whioh in evidence was modified as regards the cash deposit, the original agreement being that plaint-tiff was to pay $800.00 in cash and the modification was that she was to pay $500.00 in cash.

It is further positive and not MpoMM that plaintiff went to the defendants, Informed them of her inability to pay,at the time agreed upon, more than $500.00 in cash and then defendants stating that that would be satisfactory and would be acceptable to their principies, plaintiff paid ten per cent of the $1700.00 or $170.00 to defendant with the understanding and positive agreement that she was to go over and take possession of this property and to arrange for giving her notes for $35.00 each to represent the balance of purchase prioe.

Believing these statements to be true and acting on same, she sold out all her furniture and other belongings in the City of New Orleans and went with her family, over to Bay St. Louis, there to carry out her oontraot; she went to the Bank and in the presence of the owner of the property and the President of the Bank she tendered the balance of the $500.00 cash payment and was ready and willing to sign the notes as agreed upon for whatever was due to the owner; these notes were actually prepared and signed by her in the presence of the President of the Bank when the principle refused and declined to acceed, and oalled the transaction off, cancelling all her obligations, refused to go one step further in the matter. Plaintiff immediately phoned to New Orleans to have Mr. Schmaltz, one of the agents to oome to Bay St. Louis in order to effect sale but he failed; she returned then to Hew Orleans and demanded the return of the money which she had deposited, same being denied her.

Defendants have not aooounted for this money either to their prinoiple or to plaintiff. Hr. Schmaltz testified^ that he has this money in bank in the Oity of Hew Orleans, awaiting the decision in this cause.

His Honor, the Judge of the Court aq.ua/saw and heard the witnesses and had a much better opportunity than we had in deciding this case.

He did so in a very able written opinion in which virtually he condemned these defendants, believing as we do that there was fraud praotioed on this plaintiff by misrepresentation and that she is entitled to the return of the deposit.

"The nature of the oontraot is that which characterizes the obligation whioh it creates." Civil Code, Art. 1841.
"When parties misunderstand each other there is no oontraot." 42 Ann. 107; Pittsburg & Southern Coal Company vs. Slack & Company.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment of tbs Court aquo be and the same is hereby affirmed.

-Judgment Affirmed-  