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Duckett v. Silberman

decided: January 6, 1978.

GEORGE DUCKETT AND DELORES DUCKETT, PLAINTIFFS-APPELLANTS,
v.
EVE SILBERMAN, DEFENDANT-APPELLEE



Appeal from an order entered after a bench trial in the Eastern District of New York, Thomas C. Platt, District Judge, which dismissed an action for declaratory and injunctive relief plus damages brought by plaintiffs who alleged violation of their constitutional and civil rights resulting from defendant's refusal to sell her house to plaintiffs assertedly because of plaintiffs' race.

Mansfield and Timbers, Circuit Judges, and John F. Dooling, District Judge.*fn*

Author: Timbers

TIMBERS, Circuit Judge

On this appeal from an order entered after a bench trial in the Eastern District of New York, Thomas C. Platt, District Judge, which dismissed an action for declaratory and injunctive relief plus damages brought by plaintiffs who alleged violation of their constitutional and civil rights resulting from defendant's refusal to sell her house to plaintiffs assertedly because of plaintiffs' race, the issue is whether the district court was clearly erroneous in finding that defendant refused to sell her house to plaintiffs for reasons unrelated to race and that plaintiffs were not willing to purchase it on the terms specified by defendant. We hold that the district court's findings of fact were not clearly erroneous. We affirm.

I.

In October 1974 defendant, Mrs. Eve Silberman, a white citizen, decided to sell her one-family house in the Kew Garden Hills section of Queens, New York. She and her daughter, Mrs. Ravelle Brickman (the "sellers"), engaged a realtor, Peter Smetana, who stated that he could get at least $60,000 for the house. Subsequently Mrs. Silberman went to live in Wisconsin with her son, whereupon Mrs. Brickman assumed responsibility for selling the house. Thereafter the sellers received several offers ranging from $40,000 to $50,000, all of which were rejected. In February 1975 the asking price was reduced from $60,000 to $55,000, but no acceptable offers within this range were received. The house remained vacant after Mrs. Silberman left for Wisconsin, until eventually a buyer was found.

In late June 1975 plaintiffs Mr. and Mrs. George Duckett, a black couple, conferred with Smetana about purchasing a house. He informed them of the availability of the Silberman house and arranged for them to see it. Smetana pointed out that certain plumbing repairs were necessary. He told the Ducketts that the price had been reduced from $60,000 to $55,000. Early in July, after obtaining an appraisal of their own, the Ducketts offered $42,000 for the house. Smetana promised to inform the sellers of this offer.

About two weeks later, having heard nothing from Smetana, the Ducketts asked him if their offer was acceptable. Smetana told them that in response to their offer the asking price had been reduced to $49,000. Smetana testified that Mrs. Brickman had asked him whether the prospective buyers were Jewish. Smetana responded that they were not but that they were black. According to Mrs. Brickman, she told Smetana that it would be nice to have a black family in the neighborhood.

On July 26, the day after their conversation with Smetana referred to above, the Ducketts raised their offer to $44,000. Shortly thereafter they made a final offer of $45,000. This offer was communicated to the sellers. At this point Mrs. Brickman's brother in Wisconsin (son of Mrs. Silberman) asked Smetana to delay acting on the Ducketts' offer to see if any better offer could be obtained. On August 19, however, the sellers agreed to accept the Ducketts' offer of $45,000, this being $10,000 less than the price originally asked of the Ducketts. Mrs. Brickman testified that the price was reduced upon the understanding that the Ducketts would accept the house "as is".

Gerald Murray, Esq., the sellers' attorney, was out of the country when the agreement was reached. Upon his return he drafted a contract of sale. On September 2 he discussed the terms of the contract with Thomas Hoffman, Esq., the Ducketts' attorney. Hoffman requested that the sellers repair the bathroom and kitchen plumbing; that they assume the risk of unintentional damage to the house from the date of the contract to the date of closing; and that the appliances be delivered in working condition. On behalf of the sellers Murray rejected these conditions and told Hoffman that the deal was off. Hoffman asked Murray to discuss the conditions with his clients before cancelling the agreement.

Hoffman contacted Murray several times after their September 2 conversation, but Murray had not received a response from his clients. In the meantime the Ducketts instructed Hoffman to withdraw the proposed conditions in order to facilitate the contract signing. On September 19 Hoffman informed Murray by telephone that the Ducketts' were prepared to sign the contract at the agreed price of $45,000 without the proposed conditions. Murray said that he would discuss this with his clients.

Not having heard from Murray after their September 19 conversation, Hoffman called Murray again on October 3 to determine the status of the Ducketts' offer. Murray informed him that another person was interested in buying the house. Hoffman responded that he was authorized to match any bona fide offer, although he later conceded that at that time he did not have a power of attorney to make such an offer. On the same day Hoffman sent Murray a letter formally withdrawing the conditions and stating that his clients "would like the right of first refusal on any bona fide offer."

On October 9 Murray informed Hoffman that on the previous day, October 8, Mrs. Silberman had entered into a contract to sell the house for $46,000 to a white couple, Mr. and Mrs. Menahem Medel Beer (the "buyers"). This was $1,000 more than the Ducketts had offered to pay. Moreover, since no realtor was involved in the sale to the Beers, the sellers saved $2,000 in brokerage fees. At the signing of the Silberman-Beer contract the buyers requested the sellers to make repairs, as the Ducketts had, but did not insist on them when the sellers objected. For aught that appears in the record, at no time during the Silberman-Beer negotiations did the buyers ask the sellers to guarantee the appliances or to bear the risk of damage to the property between the date of the contract and the date of closing. Nevertheless, although the contract of sale ...


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