Harris v. Clinton Brief for the Appellants

    THE

SU PREM E C O U RT OF ERRORS
OP T H E

STA TE O F CONNECTICUT

N ew  H aven  C ounty, O ctober T erm , 1954

4030
WILLIAM HENRY HARRIS, Et Ux, 

vs.
SAMUEL CLINTON, Et Ux.

Court of Common Pleas No. 42284 
December 18, 1953

P l a in t if f ' s A p p e a l  prom  C ourt of C o m m on  P leas 
for  N ew  H aven  C o u n ty

H on . J o h n  P .  C otter , Judge.

BRIEF FO R TH E APPELLANTS

T . H olm es B r a c k en , E sq., 
Attorney for Appellees.

To be argued by
R a l p h  J .  L ockwood, Esq.,
C onstance  B a k er  M otley ,

Of the New York Bar.

Supreme P rinting Co., I nc., 114 W orth Street, N. Y. 13, BEekman 3-2320



Principal Issues involved

1. Whether in action by purchaser’s assignees for spe­
cific performance of written contract for sale of lot, wherein 
vendors rely on alleged oral agreement of purchaser not 
to assign his rights without the prior consent and approval 
of vendors, the vendors sustained their burden of proving 
that the alleged oral agreement was contemporaneous with 
the writing.

2. Whether in action by purchaser’s assignees for spe­
cific performance of written contract for sale of lot, pur­
chaser’s breach of oral agreement not to assign his rights 
without prior consent and approval of vendors is such a 
material breach of the entire agreement as to defeat the 
assignee’s action for specific performance.

3. Whether in action by purchaser’s assignees for spe­
cific performance of a written contract for sale of lot, judg­
ment may be rendered for the vendors upon the ground 
that purchaser breached oral agreement not to transfer 
his rights without prior consent and approval of vendors, 
where it appears that purchaser, as a matter of fact, sought 
vendors’ approval of assignees which was withheld solely 
because of the race and color of the assignees.



2

S tatem ent of the N ature of Proceeding

This is an action for specific performance of a written 
contract to convey a lot brought by the purchaser’s as­
signees against the vendors.

The assignees ’ amended complaint was filed on the 24th 
day of November 1952 (R. 2).

The written agreement which the assignees sought to 
have specifically enforced is attached to their complaint 
and designated Exhibit A (R. 4).

The vendors ’ answer to the amended complaint was filed 
on the 22nd day of January 1953 (R, 6). At the same time 
the defendant vendors filed a cross complaint (R. 9).

In these pleadings the vendors alleged that contem­
poraneously with the writing, the parties thereto entered 
into the following oral agreements :

a. Said Horbick (purchaser) would use the stone 
upon said premises to erect a dwelling house 
for himself and his family (R. 6).

b. Said Horbick contracted and agreed that so 
long as he had a bond for deed, he would not assign 
his interest in the same to any other party without 
securing the consent and approval thereto of said 
defendants (R. 6).

c. Said Horbick contracted and agreed that he 
would commence construction of said house himself 
within a reasonable period of time (R. 6).

d. Said Horbick further contracted and agreed 
that he would commence construction of said house 
before title would be conveyed to him under said 
bond for deed (R. 6).



3

e. The price of said lot was lower than prices for 
similar lots in the area in consideration of the agree­
ments referred to (R. 6).

The plaintiff assignees filed a reply on March 4, 1953 
to defendants’ answer and cross complaint in which they 
denied all of the allegations therein (R. 10). On March 
26, 1953 plaintiffs moved for transfer of the case to the 
privileged court list (R, 10). This motion was denied on 
April 24, 1953 (R. 11).

The case was tried before the court below and a jury on 
October 30, 1953.

Following the testimony on the trial, the following ques­
tions were submitted to the jury and answered by it as indi­
cated :

I. At the time Mr. and Mrs. Clinton executed 
the Bond for Deed on December 28, 1948 with Peter 
Horbick did Mr. and Mrs. Clinton have an oral 
agreement with Mr. Horbick in addition to the writ­
ten contract? (R. 11).

A. Yes with Mr. Clinton and Mr. Clinton as agent 
for Mrs. Clinton (R. 11).

II. If the answer to the above question is yes, 
did the oral agreement include the following:

(1) an agreement that Mr. Horbick could not 
transfer his rights in the Bond for Deed to any per- 
son or persons without the consent and approval of 
the Clintons? (R. 11).

A. Yes (R. 11).
(2) an agreement Horbick was to commence con­

struction of a house himself? (R. 12).
A. Yes (R. 12).



4

(3) an agreement Horbick was to use stone from 
the lot to erect a dwelling house for himself and 
family? (E. 12).

A. Yes (E. 12).
(4) an agreement Horbick was to commence con­

struction of a house before title would be conveyed 
to him under the bond for deed! (E. 12).

A. Yes (E. 12).
III. Did Mr. and Mrs. Clinton refuse to give 

Mr. and Mrs. Harris a Deed to the premises solely 
because Mr. and Mrs. Harris are Negroes? (E. 12).

A. No (E, 12).

The plaintiffs moved to set aside the jury’s answers to 
the interrogatories on the same day on which the answers 
were returned i.e., October 30, 1953 (E. 12). This motion 
was denied by the court below on December 10, 1953 (E. 12).

The defendants moved on November 6, 1953 for judg­
ment in accordance with the answers to the interrogatories 
(E. 12). This motion was granted on December 18, 1953 
by a memorandum of decision filed on that date (E. 13).

Judgment was accordingly entered for the defendants 
on the plaintiffs’ complaint and on the defendants’ cross 
complaint on December 18, 1953 (B. 14).

From this judgment plaintiffs appeal to this Court 
(E. 19). The court below made a Finding in support of 
its Judgment (E. 19) and on June 7, 1954 plaintiffs filed 
Assignments of Error (E. 34).

The judgment for defendants on the plaintiffs’ com­
plaint and on the cross complaint entered December 18, 
1953 was the second judgment for defendants entered 
in this cause (E. 14).



5

The first judgment for defendants was entered on the 
plaintiffs’ original complaint and on defendants’ original 
cross complaint on April 10,1951 by the court below (E. 15).

Plaintiffs’ original complaint for specific performance 
of Exhibit A, attached to their amended complaint, was 
filed on August 12, 1949 (E. 15).

Defendants filed their answer with a special defense to 
this complaint and a cross complaint on January 23, 1950 
(E. 15).

Plaintiffs filed a reply to these pleadings of defendants 
on February 9, 1950 (E. 15) which was withdrawn on May 
9, 1952 (E. 16), following the decision of this Court in the 
case of Harris v. Clinton, 138 Conn. 657, and another reply 
and answer to the cross complaint was filed on June 27, 
1952 (E. 16).

The parties were at issue on their original pleadings 
on March 8, 1951 (E. 15).

Following the testimony on the first trial, the court 
below submitted to the jury a single interrogatory as 
follows:

Was it understood between the Clintons and Horbick 
that Horbick could not transfer his rights to any person 
or persons without the consent and approval of the Clin­
tons? (E. 15).

The answer of the jury to the interrogatory was in the 
affirmative (E. 15).

From the judgment entered for defendants after the 
first trial, the plaintiffs appealed to this Court. Harris v. 
Clinton, supra (E. 16).

This Court, in its opinion, held that the evidence ad­
duced by defendants on the first trial was insufficient to 
support a necessary finding that there was an oral agree­



6

ment contemporaneous with the writing. Harris v. Clinton, 
supra.

By a judgment dated April 29, 1952 this Court decreed 
that the lower court committed error, that the judgment 
of said court be set aside, and a new trial was granted 
(R. 16). The judgment now appealed from followed this 
second trial.

On this second appeal plaintiffs contend that defend­
ants again failed to sustain their burden of proving that 
the alleged oral agreement was contemporaneous with the 
writing.

Plaintiffs also contend that if it be held by this Court 
that defendants did sustain such burden, the breach of the 
oral agreement by the purchaser was not such a material 
breach of the entire agreement as to defeat specific per­
formance of the agreement as written by a bona fide as­
signee without notice.

Plaintiffs also contend that the court below, under the 
facts of this case i.e., that approval was in fact withheld 
solely because of the race and color of the assignees, was 
without power to enter judgment for the defendants.

Statem ent of the Facts 

T h e U n d isp u ted  F acts

The plaintiffs in this case, William Harris and his wife 
Elsie Harris, are Negroes (R. 2). In response to an 
advertisement insert in a newspaper by the contract 
vendee, Peter Horbick, they took from Horbick a Quit 
Claim Deed and an assignment of his rights in the written 
contract on June 15, 1949 (TM. 109). When the defendants 
refused, upon tender to them of the balance due under the 
terms of the contract, to convey the lot described in con­



tract either to the purchaser or his assignees, the plain­
tiffs brought this action for specific performance of the 
contract as written (A. 24a, 25a).

The defendants in this action are Samuel Clinton and 
his wife Katherine Clinton, the contract vendors (R. 2). 
Samuel Clinton has been in the real estate business for 
several years (A. 2a). He and his wife own a real estate 
development in the town of West Haven, Connecticut in 
which they have sold lots from time to time ( A. 31a).

On December 28, 1948 the Clintons entered into the writ­
ten agreement with Peter Horbick which is sought to be 
specifically enforced in this action. A copy of this agree­
ment is attached to plaintiff’s amended complaint and 
marked Exhibit A (R. 4).

Peter Horbick is by occupation a sculptor and stone 
mason (A. 4a). For this reason he expressed to Samuel 
Clinton an interest in obtaining a lot with rocks upon it in 
order that he might use the stone there on along with stone 
from his business to construct a house (A. 4a). The lot 
described in Exhibit A is almost completely rock (A. 28a).

By the terms of the written agreement Horbick paid 
$50.00 upon the purchase price of $300.00 at the time of 
the agreement, and $10.00 per month thereafter, with in­
terest, for five months (R. 3, 4).

Early in May 1949, Horbick decided that he would go 
into business for himself as a stone mason. Because the 
lot he was purchasing from Clinton was located in a 
residential area, he would not be able to open such a busi­
ness in his home. Since he could not afford to build a house 
at one location and open a business for himself at another, 
Horbick decided to give up the purchase of the lot from 
Clinton (A. 34a, TM. 82-83).

Horbick discussed the problem with Clinton and secured 
from Clinton “ permission” to sell (A. 34a). Shortly after

7



8

inserting an advertisement in the New Haven Register- 
advertising sale of the lot for $600., Horbick called 
Clinton and advised that certain colored people were in­
terested in buying the lot. Clinton told Horbick for the 
first time that he objected to colored people as transferees 
of the lot and asked Horbick not to sell the lot to such 
people. Horbick orally agreed to this (A. 34a).

Horbick again inserted the advertisement in the news­
papers and shortly thereafter called Clinton again and 
advised that he desired to sell the lot to colored people. 
Clinton again voiced his objection to colored people acquir­
ing lots in his development (A. 34a, 35a).

Thereafter in early June or the latter part of May, 
Horbick and Clinton met in a cemetery where Horbick was 
installing a monument which he had made for Clinton. 
Horbick at this time offered to pay the balance due on the 
contract and asked Clinton for a deed. Clinton suggested 
that Horbick wait until he, Horbick, had obtained a buyer 
at which time he, Clinton, would deed directly to such 
buyer (A. 36a).

In June 1949, Horbick accepted a deposit from the plain­
tiffs and advised them that he was having difficulty getting 
the deed. He did not tell the plaintiffs that Clinton did 
not- want colored people to have the lot (TM. 112, 113).

Horbick subsequently saw his attorney and his attorney 
prepared a Quit Claim deed to the plaintiffs. This deed 
was given to plaintiffs on or about June 15, 1949 in ex­
change for which plaintiffs paid Horbick the balance on then- 
agreed purchase price of $600 (TM. 112,113).

On or about the same day, Horbick sent a certified 
check for the balance due by him to the Clintons under his 
agreement with them by registered mail with a letter



9

(TM. 110-111). Clintons’ attorney returned this check to 
Horbick (TM. 119).

The Clintons disapproved of the Harris’ and refused 
to give a deed to them because the Harris’ are Negroes 
(A. 26a).

The plaintiffs are willing to build a good and substan­
tial house on the lot described in the written agreement.

D isp u ted  F acts

The chief facts in dispute are those concerning the al­
leged oral agreement made by Horbick to secure the prior 
consent and approval of the Clintons before transferring1 
rights in the written agreement sought to be specifically 
enforced in this action. The testimony of Samuel Clinton 
with respect to this is printed in plaintiffs’ appendix to 
this brief. Horbick categorically denied that at the time 
of the writing there was a contemporaneous oral agreement 
wdiich was intended to supplement the writing (TM, 77-79).

Horbick also denied those facts concerning his alleged 
oral agreements concerning the building of his house 
(TM. 77-79). It is not disputed however that Clinton gave 
Horbick permission to sell without requiring him or his 
assignees to live up to any such agreements (A. 33a).

F acts F ound by th e  Jury

The jury found as a fact that at the time of the written 
agreement on December 28, 1948 Horbick made an oral 
agreement with Mr. Clinton and with Mr. Clinton as agent 
for Mrs. Clinton that he would not transfer his rights in 
the written agreement to any person without the consent 
and approval of the Clintons (R. 28).

The jury also found as a fact that at the same time 
Horbick orally agreed that he would commence construe-



10

tion of a house himself, would use the stone from the lot 
to erect a dwelling house for himself and family, and that 
he would commence construction of a house before title 
would be conveyed to him in accordance with the terms of 
his written agreement with the Clintons (R. 28-29).

F acts Found by th e  Jury W ith ou t A n y  T estim on y
T h ereon  and W ith ou t A n y th in g  in th e  R ecord to  

Support T hem

That Samuel Clinton acted as agent for his wife 
Katherine Clinton in making the alleged oral agreements 
with Horbick (R. 28-29).

F acts F ound b y  th e  Jury C ontrary to  the  
U n d isp u ted  T estim on y

•

That the Clintons did not refuse to give a deed to the 
Harris’ solely because Mr. and Mrs. Harris are Negroes 
(R. 29).

F acts F ound by th e  Court W ith ou t Support 
T h erefo r  in  th e  T estim on y  or in  th e  R ecord

That Horbick and Clinton intended to supplement their 
written agreement by the oral agreements found by the 
jury (R. 32, 33).



11

ARGUM ENT

I. The V endors H ave Failed  To Sustain T heir Bur­
den O f Proving T h a t The O ral A greem ents On W hich 
They Rely W ere M ade By The Purchaser A t The Tim e 
O f The W ritten  Contract.

In Harris v. Clinton, 138 Conn. 657, this Court held that 
the burden of proving an oral agreement in this case is on 
the Clintons. In its opinion, this Court found that the 
Clintons had, at the first trial, failed to sustain this burden 
with respect to establishing that the oral agreement not 
only existed but in addition was contemporaneous with the 
writing.

In its opinion, this Court reviewed the testimony of 
Samuel Clinton on the crucial question involved in this 
case. In this connection this Court pointed out that the 
court below, “ . . . cannot reasonably find that a contempo­
raneous agreement was made in the absence of credible 
affirmative evidence of that fact'” (italics plaintiffs’) 
(p. 633).

Plaintiffs contend that again there is no credible 
affirmative evidence of a contemporaneous oral agreement 
of the nature and scope alleged. Plaintiffs contend that 
the inherent probability is that parties entering into a 
written agreement, such as the contract sought to be 
specifically enforced in this action, to sell and to buy a 
lot for $300.00 would not have omitted from such an agree- 
mqnt the broad promises allegedly made by the buyer, 
which the seller, who drew the contract and relies on the 
oral promises, testifies were discussed in great detail prior 
to the writing on several occasions as well as to the time 
of the writing. Nagel v. Modern Investment Corp., 132 
Conn. 698, 700. See, Cohn v. Bunn, 111 Conn. 342, 347.



12

In the Nagel ease this Court found that parties con­
tracting as the parties in that case would not enter into 
a contemporaneous oral agreement of much broader scope 
than the writing since the subject matter of the writing 
had to do with specific undertakings and the alleged oral 
agreement had to do with similar undertakings of a much 
broader scope.

In the Cohn case this Court found that the oral agree­
ment sought to be established was of such a nature that 
parties contracting to construct a building would not have 
included it, since it had nothing to do with the construction 
contract itself.

In the instant case, the oral agreements, sought to be 
established by the one who drew the contract, and who 
is the only one who could benefit by them, have to do with 
the sale of the lot itself, and therefore under this Court’s 
reasoning in the Cohn case would naturally and normally 
have been included. In addition, these oral agreements are 
of a much broader undertaking than the terms of the 
writing and, therefore, under this Court’s reasoning in 
the Nagel case would normally not have been entered into 
by parties agreeing to buy and sell a lot for $300.00.

In this case it is particularly difficult to believe that 
there were such broad contemporaneous oral undertakings 
omitted from the writing because if, as the defendants 
allege, these promises were a part, of the consideration for 
the contract (E. 8), they naturally and normally would, 
not have been omitted. They naturally would have been 
referred to in stating the price for the lot.

In referring to the testimony of Samuel Clinton on the 
first trial, this Court pointed out the following:

“ On direct examination, Clinton, in response to 
the question, ‘ [W] as anything said . . . about selling



13

[Horbick’s] interest in this bond for a deed?’ 
answered, ‘I cannot say definitely’ ” (p. 633).

On the retrial Clinton testified to the same effect.
In response to questions put to him on direct examina­

tion concerning his conversations with Horbick prior to 
signing the bond for deed Clinton testified:

“ I really cannot answer that as to how detailed it 
was at our first conversation” (A. 18a).

In response to the question: “ Did you have any fur­
ther conversations with Horbick before December 28, 
1948?” Clinton said:

“ I have already said that we had, to my recol­
lection, several conversations and at each one we 
specifically talked about such and such a thing. I 
couldn’t possibly say at this time” (21a).

In commenting further upon the testimony of Samuel 
Clinton upon the first trial, this Court pointed out that 
Clinton had testified that it

“ was never anticipated that Horbick would not com­
plete the house” (p. 633).

With respect to this, this Court said, “ indicating that 
there was then no question of resale contemplated” (p. 
633).

Upon the retrial Clinton again testified to the same 
effect:

“ Q. (Mr. Lockwood) Well, was there any talk 
of his not building a house at that time? A. No, not 
even a suspicion of it (A. 40a).



14

“ Q. He never indicated to you that he was buy­
ing this lot for anybody but himself, did he?

“ A. No, he did not” (A. 40a).

Further, with respect to the testimony of Clinton on 
the first trial, this Court pointed out:

“ He further testified that at the time the bond 
for a deed was executed he told Horbick that the 
‘ only control he knew of to preclude the undesirable 
ownership of lots was by quoting’ of prices’ ” (p. 
633).

Upon the retrial Clinton testified before the Court 
alone as follows with respect to this:

“ The Court: I ’d like to know what the conver­
sation was as to the prices of lots” (A. 41a).

#  # *

“ The Witness: When and if we advertised, we 
never advertised the price of a lot, and if someone 
called on us, we didn’t quote prices. We met them 
and showed them the lots and thereby could meet 
the people, and know the type they were (A. 41a).

“ The Court: You’re talking about Mr. Horbick?

“ The Witness: Yes, as to how I controlled the 
people who bought there (A. 41a).

“ The Court: Alright.
“ The Witness: In that manner we met the

people first and if they were, in my opinion, undesir­
able people, I ’d quote an outlandish price. If they 
were desirable people, I would quote the price at 
which I wanted to sell the lot to these people . . .” 
(A. 41a).



15

In commenting further upon the testimony of Samuel 
Clinton upon the first trial, this Court pointed out:

“ The sentence in the bond for a deed providing 
that it was not ‘to become a matter of public rec­
ord,’ obviously constituted no expression of the 
claimed approval provision, nor was Clinton’s testi­
mony of his understanding of the effect thereof 
evidence that such a provision had been agreed, to 
when the bond for a deed was executed” (p. 633),

Upon the retrial Clinton again testified with respect to 
this provision in the contract as follows:

“ Q. (Mr. Lockwood) At the time of the agree­
ment, Mr. Clinton, what was your conversation with 
Mr. Horbick? A. To the best of my recollection, 
we simply went over what we had already discussed 
and I made it clear to him how important it was that 
our agreement be carried out, and explained to him 
that I was no lawyer, but I was using a Bond For 
Deed, which was not completely applicable, I would 
say, to the situation other than it contained substan­
tially our agreement and that I would further pro­
tect ourselves by putting in that clause that it could 
not be made a matter of public record, and I ’m sure 
that I explained to him that it was my knowledge 
—it was my understanding rather, that any docu­
ment that could not be put on the matter of public 
record, would allow me to completely control the 
situation” (A. 21a).

In other words Clinton has again testified to the same 
effect as upon the first trial regarding his conversations 
with Horbick at the time of the writing.



16

II. The P urchaser’s T ransfer Of His Rights To 
The Plaintiff Assignees W ithout Consent A nd Ap­
proval Of The V endors Is Not Such A Material 
Breach Of The A greem ent As To Avoid Specific Per­
formance Of The A greem ent By The A ssignees In This 
Case.

The plaintiff assignees in this ease were bona fide pur­
chasers for value without notice of the existence of the 
alleged oral agreements. Horbick testified that he told 
the plaintiffs that he was having difficulty getting the deed, 
but he did not tell them that it was because he had an oral 
agreement with Clinton not to transfer to anyone without 
Clinton’s prior consent and approval. In addition, he 
specifically did not tell them that the Clintons disapproved 
of a transfer of the property to them solely because they 
are Negroes.

The defendants have not shown nor could they show 
when the time comes that they have been or would he 
materially injured by a transfer of the lot in question to 
the plaintiffs. Defendants would have to show, in order to 
show material injury, that because of the race and color 
of the plaintiffs, they have been damaged or will be dam­
aged by a transfer to them. Assuming for the sake of 
argument at this point that plaintiffs could show such 
damage resulting directly from the color of the plaintiffs, 
the question remains whether any such damage is recover­
able in a court action. Plaintiffs contend that such dam­
age, even if proved, could not be recovered by defendants 
because such recovery would have the effect of coercing 
Horbick and others to discriminate against Negroes in 
disposing of their property in violation of rights secured 
to Negroes by the 14th Amendment to the Federal Consti­
tution. Barrows v. Jackson, 346 U. S. 249, 258.

Because of the Statute of Frauds, the oral agreements 
relied on by the vendors could not have been enforced by



17

them and therefore no damages could have been recovered 
by them in an action for breach of any one of these oral 
agreements.

Since defendants could not recover damages for the 
breach of the oral agreements, the breach of said agree­
ments do not result in material injury to the defendants 
and consequently cannot be considered a material breach 
of contract. It is elementary that specific performance 
of a contract may be avoided or defeated only for breach 
of the agreement which is material.

Moreover, the law is clear that an assignment of a land 
contract made in violation of a provision thereof that the 
vendee shall not assign does not preclude the assignee 
from maintaining a suit for specific performance so long 
as either the vendee or the assignee has fully performed 
or tenders performance. While it appears that this point 
has not been decided in this jurisdiction, the overwhelming- 
weight of authority supports this view. Handsel v. Bassi, 
343 111. App. 281, 99 N. E. 2d 23; Cheney v. Bilbey, 741 F. 
52 (C. A. 8th 1896); Griggs v. Landis, 21 N. J. Eq. 494; 
Johnson v. Ehlund, 72 Minn. 195, 75 N. W. 14; Wagner v. 
Cheney, 16 Neb. 202, 20 N. W. 222; 49 Am. Jur. Section 152. 
These cases and others are collected at 138 A. L. R. 205, 
211-214.

The reasons underlying these decisions have been ex­
pressed as follows:

‘ ‘ The theory adopted by the courts which so rule 
is that the stipulation against assignment is ordi­
narily to be construed so that when full performance 
has been rendered, or is presently offered, the stipu­
lation becomes of no further consequence.” 49 Am. 
Jur. Section 152.



18

III. Judgm ent M ay Not Be E ntered  For The 
Vendors In This Case B ecam e T heir D isapproval O f 
The P urchaser’s A ssignees W as Based Solely On Race 
And Color.

The evidence adduced on the retrial of this case, as 
upon the first trial, shows that the alleged oral agreement 
was a subsequent oral agreement between Horbick and 
the Clintons that Horbick would not transfer his rights in 
the contract to Negroes (A. 34a).

Samuel Clinton testified on the retrial that he refused 
to give a deed to Mr. and Mrs. Harris solely because they 
are Negroes (A. 26a).

Samuel Clinton testified that Horbick called him and 
told him that some colored people responded to the adver­
tisement in the newspaper and that they wanted to buy 
the lot. Clinton testified that he told Horbick that he would 
not approve of a transfer of the lot to colored people 
(A. 34a). Clinton has in fact disapproved of the Harrises 
solely because they are Negroes and has in fact refused 
to give them a deed to the lot for this reason alone and 
none other (A. 26a).

The court below entered judgment for the vendors on 
these facts.

Plaintiffs contend that the entry of judgment for de­
fendants on these facts violates rights secured to them by 
the due process and equal protection clauses of the 14th 
Amendment to the Constitution of the United States and 
by Title 42, United States Code, Section 1982. Plaintiffs 
also contend that the entry of a judgment by the court 
below on these facts is in violation of the public policy of 
this State.

Shelley v. Kramer, 334 U. S. 1;



19

Cf. Hurd v. Hodge, 334 U. S. 24;
Clinton v. Puente, 218 S. W. 2d 272 (Tex. Civ.

App. 1948) ;
Correll v. Earley, 205 Okla. 366, 237 P. 2d 1017;
Barrows v. Jackson, 346 U. S. 429;
Roberts v. Curtis, 93 Fed. Sup. 604.

It is a fair inference, to be drawn from the testimony 
of Samuel Clinton, that if the Harrises had been white 
persons Clinton would have approved of the transfer of 
the property to them. But the Harrises are Negroes and 
in violation of an oral agreement made by Horbick sub­
sequent to his written agreement with the Clintons, Horbick 
transferred his rights in the written agreement to Negroes. 
In giving judgment for the defendants on these facts, 
the court below gave effect to a racial restrictive covenant 
to the same extent that court action gave effect to dis­
criminatory private agreements in the cases cited above.

The court below, by its judgment for defendants on 
these facts, has effectively denied plaintiffs the right to 
have title to the lot vested in them solely because of their 
race and color. Plaintiffs contend that this result is in 
violation of the public policy of this State. By the law of 
the land, Shelley v. Kraemer, supra, and Barrows v. Jack- 
son, supra, the court below could not enforce a race restric­
tive covenant nor award damages for breach of such a 
covenant, In this case the court below has awarded judg­
ment on a state of facts which has the same effect as that 
of a court enforcing a race restrictive covenant or award­
ing damages for breach of same. Plaintiffs contend that 
it is a violation of the public policy of this State to permit 
such a result to stand.

cf. Hurd v. Hodge, supra.



20

CONCLUSION

Plaintiffs respectfully  pray  th a t this C ourt reverse 
the judgment of the court below  for the  reasons set 
forth herein and direct the court below to en ter judg­
ment for the plaintiffs on the ir com plaint.

Respectfully submitted,

THE PLAINTIFFS,
By R a l p h  J. L ockwood 

a n d  P eter  M arcase,
Their Attorneys.

T hurgood  M a rsh a ll ,
C o n stance  B a ker  M otley ,

of Counsel.