[47 Del. 398] Louis J. Finger, Deputy Atty. Gen., for the State.
Robert C. Barab, Wilmington, for defendant.
A number of indictments for obtaining money by false pretenses were returned against this defendant. In so far as concerns us here, they may be roughly divided into two groups. In the first group, defendant is charged with designing to defraud and cheat six persons by obtaining sums of money from them upon the representation that he was the owner of certain building lots which, in fact, he was not. In the second group, he is charged (a) with designing to defraud and cheat one Harold Clifton by obtaining money from him upon the false representation that he had already commenced construction on his home and that money was needed to continue; and (b) with designing to defraud and cheat Elizabeth Taylor by obtaining money from her upon the false representation that he would immediately build a home for her on a certain lot and that certain building materials were already on the lot for the purpose of commencing construction.
Briefly, the facts are these. Defendant was a contractor and determined to build a development of small homes in Roselle in this County and State. It was a 'shoestring' venture. He actually obtained title to a few lots from one Eastburn who owned the land which was to be developed and who also orally agreed to give title to a lot to him or to the purchaser of a home at any time upon the payment of $500. He opened a sales office and placed one Elliott in charge as sales agent. Elliott entered into a number of contracts of sale with purchasers including the prosecuting witnesses in these indictments and in most cases received a down payment of $500. The form of contract was supplied[47 Del. 399] by defendant to Elliott and a typical one is here set forth in full.
Agreement of Sale
'This Agreement, made this 21 day of May, A.D. 1951 by and between Benjamin F. Pierson, Builder of _____ Hereinafter called the Seller, of the one part, and Jesse Sellers and his wife, Jean Sellers, hereinafter called the Purchaser, of the other part
'Witnesseth: That the Seller agrees to sell, and the Purchaser agrees to buy, all that certain lot of land with buildings thereon erected, briefly described as follows; One six room and bath English bungalow with full basement exactly as sample house on Sylvan and S. Woodward Ave. House to have smooth white stucco. Red shingles on roof. House to have other type picture window. Plastered walls instead of knotty pine in living room. To be located on Lot 175.
'The purchase price thereof is the sum of Ninety Five Hundred Dollars ($9500.00), payable in the following manner; $500.00 with signing of this contract. $1000.00 when construction starts. $8000.00 to be placed by mortgage. If mortgage couldn't be placed thru no fault of buyer, all money will be refunded to same. Five Hundred Dollars to be used as liquidating expense and forfeit.
'Deed shall be delivered to the purchaser, and final settlement completed, on or before October 1, 1951 or as soon as possible wheather permitting.
'The title to said property shall be a good, marketable fee simple title, free and clear of liens and encumbrances (except as herein otherwise provided); otherwise the Purchaser may rescind this agreement and recover back all moneys previously paid on account of the purchase price.
'All taxes, water rent, and rental of property shall be pro-rated as of the date of passing of title.
[47 Del. 400] 'Possession of the said lands and premises shall be delivered to the Purchaser on or before _____ At Settlement _____.
'The Seller agrees to keep adequate fire insurance in force for the benefit of the Purchaser until passing of title.
'In consideration of services rendered, a cash commission of _____ of the purchase price shall be ...