Abrahams v. King

73 A. 694, 111 Md. 104, 1909 Md. LEXIS 107

• Court: Court of Appeals of Maryland
• Decided: June 30, 1909
• Status: Published

Opinion

Pearce, J.,

delivered the opinion of the Court.

This appeal is taken from a decree of the Circuit Court of Baltimore County refusing a decree for the specific performance of a written agreement for the sale of certain lots of land. This agreement is as follows:

“Rebecca L. King, Contract of Sale to Charles K. Abrahams.

Baltimore, March 25th, ’07.

Received of Charles K. Abrahams the sum of one hundred dollars on a/c of the purchase of all that portion of property lying North, of Elderslie avenue running back to an alley, and lying between Pimlico avenue and Green Spring avenue, in Baltimore Co., Md., to include property as it now stands, with bouse, store and trees (excepting one lot known as Lot No. 95, situate on the S. W, corner of Greenspring avenue and Elderslie avenue), and further described and known as Lots Nos. 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 96, and 97 — 13 Lots, for the sum of eleven thousand seven hundred dollars.

Rebecca L. Kieg.”

At the foot of this paper, was the following memorandum:

“Received for record April 11, 1907, at 2 P. M. Same day recorded in Liber W. P. C., No. 311, folio 539, one of the Land Records of Baltimore County, and examined.

Per William P. Cole, Clerk.’'’

It appears from the evidence that Mrs. King is the owner of a large amount of real estate in Baltimore County, including the lots in question; that a considerable part of this property has been laid out into lots and plotted, a copy of said plot, showing the location and dimensions of the lots in question and the streets, avenues and alleys bounding on the same being offered in evidence and admitted; and that Mrs. King caused a number of sign boards to be put on this property, notifying the public that it was for sale, and directing inquirers to apply to Mrs. King, or Mr. Vm. E. Ploffman her attorney, giving the address of each.

In February 1907, the plaintiff, Mr. Abrahams, wrote Mrs. King asking if she desired to sell Lot 96, adjoining Lot 95, then owned by him. She replied by letter Feby. 21st, 1907, that she did not care to name “the lowest cash price” unless he decided to take the lot, and that as soon as she could dispose of sufficient lots on the north side of Elderslie avenue to justify her in building a house elsewhere for her gardener, the farm house occupied by him would be removed. She also said she was going South the next day to be absent two weeks, and that he could see her on her return, adding: “My phone is Maryland, 461 Garrison; you can ring me up to make sure I would be at home when you call.” On March 18th, 1907, she wrote and mailed to plaintiff a postal card informing him of her return home, and that he could see her in regard to the lot at any time he could call, or he could see Mr. Hoffman at the Fidelity Building. A few days thereafter he did call upon her at her residence in reference to the Lot Ho. 96, but there was then no reference to the purchase of other lots. A few days later he again called at her residence, and at that interview the agreement herein transcribed was entered into and executed by her. The plaintiff’s testimony is that Mrs. King furnished the paper upon which, and the pen and ink with which, the agreement was written, and that she exhibited to him a plat from which the description of the lots was taken; he also says that he thinks he read her the paper, and that she also read it over to herself. Concurrently with the execution of this paper, the plaintiff gave Mrs. King a check on the Citizens’ Hat. Bank for $100, the amount mentioned in the agreement as then received, and this check states on its face, that it is on acct. of purchase price for Lots 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 96 and 97 Elderslie.

Mrs. King testified that when the agreement was made, plaintiff asked her if she wanted a mortgage or cash sale, and she said she was selling for cash; that he asked her if she had a check in the house, and she first said no, but then said she believed she had, and “she went up and brought down a check on the old Fidelity which he wrote on and gave her.” This check was put in evidence by plaintiff and it shows that the words “Fidelity and Deposit Company,” were crossed out and the words, “Citizens’ Hat. Bank of Baltimore,” were written above them, and the check was filled' in for $100, to the order of Mrs. King, and was signed by the plaintiff,, and delivered to Mrs. King, and the uncontradicted evidence is that the plaintiff has ever since had the money in that bank to meet it. The next morning about 9.30 o’clock, plaintiff sent his clerk, Miss Parsons, with another certified check for $100 to be substituted for the first check, and formal dupli cate contracts of sale to be signed, by Mrs. King, one to be retained by her, and one to be returned to bim, but sbe refused to accept or sign any papers until sbe saw her lawyér, and these papers were returned by Miss Parsons to Mr. Abrabams. Later in tbe same day Mrs. King and Abrabams met at Mr. Hoffman’s office, and Abrabams produced tbe duplicate contracts and requested Mrs. King to sign them. Mrs. King testified that sbe left tbe matter with Mr. Hoffman, and be told ber not to sign it unless it contained a stipulation to use her sewerage plant, and that if sbe signed it without that provision, be would not put tbe matter through for ber, and that sbe thereupon refused to sign it. Mr. Hoffman testified substantially to this effect, stating that be knew Mrs. King was building an. expensive sewer from which sbe expected to get $150 for each lot sbe sold, and that this agreement contained no provision to that effect, and be charged Abrabams with endeavoring to take advantage of Mrs. King by negotiating with ber instead of with bim as ber attorney. Abrabams denied any knowledge of any such condition of sale, or any mention of such condition. Mrs. King testified that sbe told Abrabams that “tbe value of these lots was increased by tbe sewage system sbe bad built, with which they could be connected when built on,” but neither in ber sworn answer, nor in ber testimony, does sbe pretend to say that there was any mention of a charge therefor as a condition of tbe sale. Sbe bad sold lots on tbe south side of Elderslie avenue for a less price than that agreed upon with Abrabams, and sbe says she argued with bim that in view of tbe building of ber sewage plant, and tbe improvements on tbe south side, of tbe avenue, tbe lots on tbe north side were worth more than those on tbe south side. Another objection made by Mr. Hoffman was that tbe contract contained no provision for retaining tbe gardener’s bouse for bis use until Mrs. King could provide another, but Abrabams acknowledged that Mrs. King mentioned that, after the agreement was signed, and be agreed to allow a reasonable time for that purpose.

The only substantial question is as to a stipulation in the contract requiring Abrahams to connect with her sewer, and to pay for each connection $150, and a further yearly charge of $10. If Abrahams fraudulently omitted that stipulation from the contract he is not entitled to the relief he now seeks. If Mrs. King, relying upon herself, chose to enter into the contract in this case, without inserting such a provision into the contract or without plainly stating to Abrahams, that such a stipulation was a part of the agreement and must be inserted in the deed, so as to fix upon him such a charge of bad faith as would justify the Court in refusing specific performance, and leaving him to an action at law for damages, then she must abide the consequences of her agreement, unless there is some defect in the contract as it stands, which will warrant refusal of the decree sought.

There is nothing in the contract itself which prevents such decree. It is in writing, is certain, fair in all its parts, for an adequate consideration, and capable of being performed. Taken in connection with the plat furnished by Mrs. King, the property can be accurately described in a conveyance, and in such case “it is as much a matter of course for a Court of Equity to decree specific performance, as it is for a Court of law to give damages for its breach.” Popplein v. Foley, 61 Md. 385; O’Keefe v. Irvington, 81 Md. 200.

The only question that could be raised is that the contract fixes no time for the conveyance and payment, and it was held in Lawson v. Mullinix, 104 Md., that the law implies that, payment and conveyance is to be made in a reasonable time. A careful examination of the testimony has not enabled us to discover any evidence of fraud or bad faith on the part of Abrahams in obtaining this contract, and it must be remembered that while specific performance is not a matter of right, and is in the discretion of the Court, yet where it is resisted on the ground of fraud in obtaining the contract, such fraud is not to he lightly assumed, but must be established as in other cases by satisfactory proof. Mrs. King’s own testimony, if nothing else in the case were con sidered, fails to establish the charge of fraud. Mr. Abrahams says he read her the agreement before she signed it. She says she never read it, or heard it read, and she supposed it was a mere memorandum of the numbers of the lots, though she nowhere says that Abrahams misrepresented its character or contents. She says she did not receive the check as a check, and never looked at it or read it at all, and supposed it was a receipt, though she does not attempt to explain how it could be a receipt, and admits that when she brought him the check to fill and sign she asked him if he had the money to meet it in the “Old Fidelity.” When she returned this check on March 29th, after refusing to carry out the transaction, she did not then, nor at any time until her answer was filed, allege any of the matters she now alleges charging fraud. She simply refused to perform the contract, apparently, from the record, because her counsel thought she had been unfairly dealt with, and he refused to represent her in the matter. She testifies that she used the fact that she had established a sewerage system, and the opportunity to connect with it as the lots were built on, as an argument with Abrahams to prove the increased value of the lots. But this is inconsistent with the present claim, that she thereby intended him to understand, and that he did understand that the contract obliged him to connect with her sewer, and to pay in addition to the contract price, a bonus of $150 for each of the thirteen lots, $1,950, and a yearly tax of $10 per lot besides. The existence of the sewerage plant, coupled with such an obligation would decrease, instead of increasing the value of the lots, by depriving the owner of the adoption of such system of sewerage as might prove to his advantage.. Unless Abrahams understood" when the contract was signed that he was bound to use this sewer on the terms stated, and he fraudulently omitted that provision from the contract, Mrs. King cannot be permitted to avoid it. She had previously sold to a Mr. Walzl a number of lots just across Elderslie avenue under certain conditions embodied in his deed, among which was one permitting, but not requiring, him to connect with her sewer upon certain terms to he agreed upon. Abrahams knew these conditions were intended to apply to all the lots, and all those conditions were inserted in the deed which she refused to execute. We do not think it necessary to review the testimony in further detail. It is clear that Mrs. King is an intelligent business woman with considerable business experience. She invited personal communication in reference to the sale of these lots, generally by the signs displayed on the property, and specially in Mr. Abrahams case by letter and postal card, and as to that transaction took the matter into her own hands. Our conclusion upon the whole case is that Mrs. King was desirous of selling these lots, and when she dealt with Abrahams, was willing to take the chances of his coming to terms with her for the use of the sewer when he should be ready to build upon the lots, but that after conference with her counsel she changed her mind and desired to recede from the contract.

What was said by Judge Boyd in Smith v. Humpreys, 104 Md. 290, seems particularly applicable here. “Any person who comes into a Court of equity admitting that he can read, and showing that he has average intelligence, but asking the aid of the Court because he did not read a paper involved in the controversy, and was thereby, imposed on, should be required to establish a very clear case before receiving the assistance of the Court in getting rid of such document. It is getting to be too common to have parties ask Courts to do what they could have done themselves, if they had exercised ordinary prudence, or to state it in another way to ask Courts to undo what they have done by reason of their own negligence or carelessness.” The burden of proof, where fraud is charged in obtaining a contract fair upon its face, is upon the party charging such fraud, and therefore, what was said above is properly applicable in this case, although Mrs. King is not complainant in the case. She alleges fraud, and asks the Court to aid her on that account in getting rid of a contract, valid, unless fraudulently obtained.

It was also contended that plaintiff was guilty of laches in asserting his right to sue, hut this contention cannot he sustained. From March 25th, to June 15th, he was persistent, both in person and by letter, in demanding performance- of the contract. Then he employed Mr. Stewart to take up the matter, and negotiations between Mr. Stewart and Mr. Hoffman were continued until October 31st, 1907, when Mrs. King abandoned the controversy, and consented to execute the deed without any stipulation requiring the use of her sewer or relating to the gardener’s house, and naming the next day at noon for closing the transaction. Mr. Stewart immediately protested against the short notice given, less than twenty-four hours, the naming of an hour when a previous engagement would prevent his presence as Abrahams attorney, and urged without avail the doubt of his being able to communicate with Abrahams in time. He was not able, after exhausting every effort, to reach Abrahams, and at noon next day Mrs. King refused to wait a moment and declared the whole matter off. This conduct is not suggestive of sincerity, but rather of a purpose to prevent Abrahams’ tender of the purchase money, by affixing impossible conditions as to time. The tender was made howeveir a few days later, on the 11th of Hovember, at Mr. Hoffman’s office, but was refused. Under the circumstances of this case'the tender was in reasonable time. Ho tender was required previous to Oot. 31st, because Mrs. King had expressly declared she would not accept the money or execute the deed. In the view which we have taken of the case, it is unnecessary to consider the exceptions to the testimony.

Abrahams promptly consented during the taking of the testimony to correct the-error of including the alley on the north of these lots in the deed, and it must be eliminated in any deed hereafter presented her for execution.

For the! reasons given the decree must be reversed.

Decree reversed and causé remanded that a decree may be passed in conformity vñth this opinion, costs above and below to be paid by the appellee.