Introduction
The case discussed in this paper was brought to court by instituted by W. O. Lucy and J. C. Lucy, complainants, against A. H. Zehmer and Ida S. Zehmer, his wife, in this case, the defendants. The claim is about the specific performance of a contract by which it was alleged that the Zehmers had sold to W. O. Lucy a tract of land owned by A. H. Zehmer in Dinwiddie county. This piece of land contained 471.6 acres, more or less, and was known as the Ferguson farm. The sale price was set to $50,000US. J. C. Lucy, the other complainant, is a brother of W. O. Lucy, to whom W. O. Lucy transferred a half interest in his alleged purchase.
The contract which enforced the purchase and finalized the transaction was written by A. H. Zehmer and seemed that the parties agreed upon. This agreement was induced by the words written at the end of the document and signed by the defendants, A. H. Zehmer and Ida S. Zehmer.
“We hereby agree to sell to W. O. Lucy the Ferguson Farm complete for $50,000.00, title satisfactory to buyer”.
Here is the kernel of the case brought to court. During court questioning, A. H. Zehmer admitted that at the time mentioned W. O. Lucy offered him $50,000 cash for the farm, but that he, Zehmer, considered that the offer was not part of a serious business transaction and was just made in jest. With this thought in mind, and with the fact that both he and Lucy had had several drinks, he wrote out “the memorandum” quoted above and induced his wife to sign it. But he also added during the questioning that he did not deliver the memorandum to Lucy, but that Lucy picked it up, read it, put it in his pocket, attempted to offer Zehmer $5 to bind the bargain, which Zehmer refused to accept, and realizing for the first time that Lucy was serious, Zehmer assured him that he had no intention of selling the farm and that the whole matter was a joke. Lucy left the premises insisting that he had purchased the farm.
Opinion of the court
In a review of the basic facts of what happened, the assignment of error is to this action of the court. Depositions were taken and the decree appealed from was entered holding that the complainants had failed to establish their right to specific performance, and dismissing their bill.
On the other hand, Lucy has its own story to declare to the court. He had known the Zehmer’s and their family for around fifteen to twenty years. He had also been familiar with the Ferguson farm for ten years. Seven or eight years ago he had even tried the same transaction and back then had offered Zehmer $20,000 for the farm. In the beginning, Zehmer had accepted, but the agreement was verbal and Zehmer backed out. On the night of December 20, 1952, around eight o’clock, he took an employee to McKenney, where Zehmer lived and operated a restaurant, filling station and motor court. While there he decided to see Zehmer and again try to buy the Ferguson farm.
This part of the testimony shows the clear intention of Lucy to build and possibly conclude the buying transaction. The following chat between the parties prior to the signing of the memorandum mentioned above is clarifying on the issue.
Lucy entered the restaurant and talked to Mrs. Zehmer until Zehmer came in. He explicitly asked Zehmer if he had sold the Ferguson farm and when Zehmer replied that he had not, Lucy continued by stating that:
“I bet you wouldn’t take $50,000.00 for that place.” Zehmer replied, “Yes, I would too; you wouldn’t give fifty.”
By catching up the moment, Lucy said he would and told Zehmer to write up an agreement to that effect to serve as a document to certify the transaction. Zehmer took a restaurant check and wrote on the back of it, “I do hereby agree to sell to W. O. Lucy the Ferguson Farm for $50,000 complete.” But in order for the agreement to be completed, Lucy told Zehmer to better change it to “We” because Mrs. Zehmer would have to sign it too, since she was the co-owner of that land and farm. Zehmer then tore up what he had written, wrote the agreement quoted above and asked Mrs. Zehmer, who was at the other end of the counter ten or twelve feet away, to sign it. Mrs. Zehmer said she would for $50,000 and signed it. Up until now, we have both the owners of the land signing a memorandum for the passage of property to Lucy for the established amount of $50,000 USD. There is a final fact confirming this. When Zehmer brought it back and gave it to Lucy, the later offered him $5 for the signing but which Zehmer refused. He claimed that:
“You don’t need to give me any money. You got the agreement there signed by both of us.”
This is a crucial fact confirming that the Zehmer’s had signed the memorandum with their willingness and with no restraint or by force.
Here we come to the pretention that the Zehmer’s have about their mental clearness conditions due to the level of alcohol in their body. Lucy took a partly filled bottle of whiskey into the restaurant with him for the purpose of giving Zehmer a drink if he wanted it. Zehmer did, and he and Lucy had one or two drinks together. Lucy claims that while he felt the drinks he took he was not intoxicated, and from the way, Zehmer handled the transaction he did not think he was either. Lucy claims that the facts remain that the Zehmer’s did sign the memorandum before having any alcohol put into their blood. Thus they were not influenced by it during the process of writing down and signing the memorandum. And here is the crucial part of the case.
But we have to examine Zehmer’s testimony now. Mr. Zehmer testified that he had had twenty-five offers, more or less, from different parties for the farm, including several from Lucy, who had never offered any specific sum of money. He told the court that he given them all the same answer, that he was not interested in selling it. On this Saturday night before Christmas it looked like everybody and his brother came by there to have a drink. He took a good many drinks during the afternoon and had a pint of his own. Thus he had had a few drinks before Lucy came by. This is why when Lucy wrote him on the beginning of January that he was ready to come and pay in cash the agreed upon sum for the selling of the farm he was surprised and wrote back that he had not agreed for a sale. At least not under normal circumstances and the dialogue he and Lucy had before the writing of the document is significant for this.
Zehmer replied, “You haven’t got $50,000 in cash.” Lucy said he did and Zehmer replied that he did not believe it. They argued “pro and con for a long time,” mainly about “whether he had $50,000 in cash that he could put up right then and buy that farm.”
Conclusions
Finally, Mr. Zehmer, testified that Lucy told him if he didn’t believe he had $50,000, “you sign that piece of paper here and say you will take $50,000.00 for the farm.” It was at this moment that Zehmer in purely a demonstrative gesture not meant to show anything (according to him at least) “just grabbed the back off of a guest check there” and wrote on the back of it. It is significant to point out the fact that during his testimony at court, at this point, Mr. Zehmer asked to see what he had written. The reason was to “see if I recognize my own handwriting.” He examined the paper and exclaimed, “Great balls of fire, I got ‘Firgerson’ for Ferguson. I have got satisfactory spelled wrong. I don’t recognize that writing if I would see it, wouldn’t know it was mine.”
After Zehmer had, as he described it, “scribbled this thing off,” Lucy said, “Get your wife to sign it.” Zehmer walked over to where she was and she at first refused to sign but did so after he told her that he “was just needling him [Lucy], and didn’t mean a thing in the world, that I was not selling the farm.”