Opinion
05-17-1907
BOOTH et al. v. YENNEY et al.
Douglass & Douglass, for complainants. Lewis T. Stevens and Curtis T. Baker, for defendants.
Action by Lena Booth and another against Ebenezer Yenney and others. Decree for specific performance.
Douglass & Douglass, for complainants. Lewis T. Stevens and Curtis T. Baker, for defendants.
LEAMING, V. C. (orally). My mind is entirely at rest in this matter. As I view the case I see no possible discretion for me to exercise at this time. The clear preponderance of the evidence is for the complainants. I have no disposition to doubt the veracity of Mr. Yenney, or to doubt his absolute sincerity in all that he has testified to; but, in view of the fact that four credible witnesses have testified to facts directly the reverse from those claimed by Mr. Yenney, I have no possible right or justification to doubt the truth of their statements. I can see how it may be possible for Mr. Yenney to have said or thought that he said all that he has testified to, and for him to sincerely believe that he said the things exactly in the manner in which he has testified to them.and I am inclined to accept all that he says as an honest statement of his belief of what transpired, for I believe him to be an honest man; but at the same time I cannot help believing that the witnesses on the other side have been equally sincere, and that they actually understood the transaction to be as they have testified it to have been. It is not possible for me to believe that four of them in number have come here and deliberately perjured themselves. Mr. Yenney may have had in his own mind at the time this transaction occurred a certain condition of facts with which he was entirely familiar and may well have thought that his statements fully disclosed those facts, whereas, the parties with whom he was dealing may have understood him in exactly the manner in which they have testified, not fully knowing the facts which Mr. Yenney may have had in mind. Misunderstandings not infrequently occur that way. I entertain no manner of doubt, however, that the complainant in the case understood at the time and fully believed that Mr. Yenney was to purchase this property for her at the lowest possible price at which he could get it, and that he was to receive his commission from the other side; and while Mr. Yenney may not have intended to justify her in that belief, I am perfectly satisfied, from the amount of corroborative evidence there is, that she was entirely justified in accepting that as the agreement which she made, and I see no way under the proofs to escape this conclusion. With these four witnesses all corroborating each other to that effect it leaves practically no discretion in the court as to what it must decide. My decision, therefore, will be for the complainants.
Touching the defendant who has defaulted—the person to whom a portion of the property has since been sold—while her testimony was vague, to say the very least, yet my understanding of it was that at the time she made the agreement with Mr. Yenney she knew that there had been some difficulty about these lots, and that Mrs. Booth had had an agreement to purchase them from Mr. Yenney, and, as she understood it, had forfeited her rights. That, of course, was sufficient to put her upon notice, and operates to deny to her the rights of an innocent purchaser. If her testimony were eliminated, the testimony given by the other witnesses as to the admissions made by her, which admissions she did not undertake to deny, would be sufficient to establish the rights of the complainants as against her as a defaulting defendant in fact, I doubt the competency of her testimony as a witness called by the defense to put in issue that fact, inasmuch as she was a defaulting defendant and it was simply a question of proof to be made by the complainant as against the defaulting defendant to establish a prima facie case against her; but, as I stated, according to her own testimony, she bought with notice. I will therefore advise a decree of specific performance in favor of the complainants. The details of the decree may be arranged by counsel.