Baker v. Dawson

Bruñe, C. J., delivered the opinion of the Court. The appellant, N. Meyer Baker, as assignee of Leonard Auerbach, brought suit in the Circuit Court for Montgomery County against the appellees, William V. Dawson and Virginia M. Dawson, his wife, for specific performance of a contract for the sale by the Dawsons to Auerbach of an eighty-acre tract of land in that County. The Circuit Court dismissed the bill on the ground that some of the provisions of the contract were so indefinite as to prevent specific performance. Baker appeals.

Several other questions were raised by the defendants in the trial court and in this court, which were resolved by the Chancellor in favor of the appellant. They will be stated and considered below. The Dawsons owned a farm consisting of three lots, Nos. 87, 88 and 89, in a subdivision designated as “Subdivision of the farm owned by Mrs. Mary J. Boland” on a plat thereof duly recorded among the land records of Montgomery County. These lots fronted on the road now known as “Old Route 240”, and had a total frontage on that road of 1066.5 feet.

The aggregate area of the three lots had been 92.72 acres. Some of the land at the rear of the tract — about three or four acres — had been taken by the State Roads Commission and, in addition, some two acres had been cut off or isolated from the rest of the tract, leaving about 86 or perhaps 87 acres between the new road and Old Route 240. A licensed real estate agent, a Mr. Measell, who was associated with a licensed broker, a Mr. Sigler, obtained Mr. Dawson’s assent to listing 80 acres of the Dawson tract for sale at a price which would net $500 an acre to the Dawsons, or $40,000 in all. The Dawsons wished to retain the dwelling ⁴⁸³ house on the farm and about six acres of land.

The property was advertised, and on June 13, 1955, Sigler submitted to the Dawsons a proposed contract of sale signed by one Leonard Auerbach as purchaser. As originally presented the contract did not meet the Dawsons’ terms and was not acceptable to them. It called for the sale of 85 acres, more or less, and provided for a total purchase price of $35,000. Of this $13,000 was to be paid in cash at the time of the conveyance and the balance of $22,000, to be secured by a first deed of trust on the premises, was to be payable “on or before” eleven years from the date of settlement, with interest at 5% per annum, and with instalments of “$2,000 or more each year, plus interest.” To meet the Dawsons’ objections, Sigler proceeded to amend the agreement by pen and ink.

He changed the area from 85 to 80 acres, more or less, the total purchase price from $35,000 to $42,000, and the aggregate deferred payments from $22,000 to $29,000; and he added this provision in the body of the contract: “The Seller agrees to deliver eighty (80) acres of land with 4 room tenant house such land having a frontage of 866.5 feet on Old Route 240.” The agreement incorporated by reference a release and reservation clause designated as “Schedule A”, which was on the reverse side of the document. The first paragraph of Schedule A was not changed. It reads as follows: “Seller agrees to release any of the acreage fronting on Old Route 240, beginning at the northeast corner of said property, upon the payment to Seller by purchaser of $1000.00 per acre, each acre to have a frontage on Old Route 240 of not less than 200 feet; and $500.00 per acre for each acre not fronting on the road. All acres released shall be contiguous.” The second paragraph originally provided for exclusion from the contract of the residence and outbuildings presently occupied by the sellers and situated on a parcel of land with a frontage of 300 feet, on Old Route 240 and a depth of 400 feet, which would, amount to a little less than three acres.

This was changed to “a frontage of 200 feet on Old Route 240 and a depth sufficient to take care of remaining acreage in excess of the eighty (80) acres covered by this contract.” ⁴⁸⁴ These changes were initialed by the Dawsons, as Sigler testified and as the trial court found, and the contract was thereupon signed by the Dawsons. They signed at the foot of the contract and they also signed “Schedule A”. These signatures were admitted by Mr. Dawson. Sigler took the signed copies with him and submitted them a few days later to Baker, who was then acting as counsel for Auerbach.

Auerbach approved the contract as amended and, in the presence of Baker, initialed the changes. This, according to Sigler’s testimony, took place on June 18th. Sigler then notified the Dawsons that the farm was sold. He also said to Mr. Dawson that he would have the documents redrafted and would submit them to the Dawsons as soon as this was done.

He accordingly had them copied by typewriter on the same type of printed form as that originally used (which was his customary form). All of the changes made in ink on June 13th were incorporated therein verbatim and no other changes were made in the text. Auerbach signed copies of the rewritten agreement and Sigler took them out to the Dawsons, who then signed them on June 19th, 1955, which was a Sunday. All signatures on the final form ■of contract were dated June 19th.

Auerbach’s signatures ■on the original form both on the face thereof and at the foot ■of Schedule A were dated June 13th; the Dawsons’ signatures on the face thereof were also dated June 13th. Their signatures to Schedule A were not dated, but were actually affixed on June 13th. Auerbach paid to Sigler a deposit of $1,000 in accordance with the agreement. Auerbach assigned all of his rights in the contract to Baker on August 13, 1955.

Other facts and other provisions of the contract will be' referred to in connection with the particular questions to which they pertain. Date When Contract Was Made. The Chancellor held, correctly, we think, that a valid contract was entered into between the Dawsons and Auerbach between June 13th and June 18th. When the Dawsons .adopted the amendments to the form of contract submitted by ⁴⁸⁵ Sigler on June 13th and signed the agreement as amended by him during the conference on that date and delivered the agreement as revised to Sigler for submission to Auerbach, they made a counter offer.

When Auerbach approved the changes (and initialed them) and so accepted the counter offer and notice of his acceptance was communicated to the Dawsons, as was done on or before June 18th, the contract was made. There is no contention that the re-executed version dated June 19th effected any change in the terms of the contract. 1 In this situation we think the rule stated in 1 Williston, Contracts, Sec. 72, page 237, is applicable, that “if there has once been unequivocal acceptance, the contract is complete and its binding force cannot be affected by subsequent communications unless they amount to a mutual agreement to rescind or abandon the contract.” See Painter v. Brainard-Cedar Realty Co., 29 Ohio App. 123, 163 N. E. 57 . It is unnecessary for us, as it was unnecessary for the Chancellor, to determine whether or not a contract for the sale of real estate is void because made on a Sunday. Plaintiffs Standing as Assignee to Maintain Suit.

The defendants contend that the plaintiff, as assignee of Auerbach, cannot maintain this suit for specific performance, at least in the absence of Auerbach as an obligor or guarantor under the deed of trust to be executed to secure the deferred payments of the purchase price. The defendants point out that Auerbach is not a party to the suit and that he is not a resident of Maryland and urge that he is hence not amenable to the jurisdiction of the Circuit Court. ⁴⁸⁶ It is perfectly evident that the contract is assignable. Indeed, it contemplates the possibility of assignment, and is made binding upon the respective heirs, executors, administrators or assigns of the sellers and of the purchaser. The rule has long been established in this State that “wherever the specific execution of a contract or covenant respecting lands would have been decreed as between the original parties, it will be decreed as between all persons claiming under them in privity of estate, or of representation, or of title, unless other controlling equities have intervened.” Worthing ton v. Lee, 61 Md. 530, 535 ; substantially repeated in Hollander v. Central Metal and Supply Co., 109 Md. 131, 154 , 71 A. 442 .

The defendants assert that this rule is inapplicable to the present case because they are entitled to the personal obligation of Auerbach under the deed of trust. The plaintiff points out that the contract does not provide for notes to be signed by the purchaser, but only for the giving of a deed of trust secured by the land. The similarity between deeds of trust, which are in common use in Montgomery and Prince George’s Counties, and mortgages has previously been noted by this Court. LeBrun v. Prosise, 197 Md. 466 , 79 A. 2d 543 ; Silver Spring Title Co. v. Chadwick, 213 Md. 178 , 131 A. 2d 489 .

We have also had occasion recently to recognize and reaffirm the rule that if a mortgage or deed of trust of reál estate is given as security for an indebtedness but contains no promise to pay the indebtedness, no implied covenant to pay it arises. See Alexander v. Hergenroeder, 215 Md. 326 , 138 A. 2d 366 , and cases therein cited. There is no indication in the contract or elsewhere in the evidence that the Dawsons relied on the personal credit of Auerbach. Even if the contract of sale should be interpreted as requiring that Auerbach join in the execution of the deed of trust and of any notes which might be secured thereby, Baker has offered to procure Auerbach’s joinder.

It is true that Auerbach was not joined as a party to this suit, but there seems to be no reason why he should have been made a party • initially. The Dawsons’ objections to consummating the sale were based primarily (if not wholly) upon a controversy ⁴⁸⁷ over the making of a survey and over who should pay the cost thereof, and perhaps on a general claim of invalidity. We find no merit in their contention that Auerbach was not a party to the suit; and we think that in view of the position which the Dawsons took, it was sufficient for the maintenance of this suit that Baker offered, during his testimony, to obtain the joinder of Auerbach in whatever documents might be necessary. Relief might have been granted on condition that he do so.

There was no lack of mutuality of remedy as that doctrine is now interpreted and applied by this Court. Stamatiades v. Merit Music Service, Inc., 210 Md. 597 , 124 A. 2d 829 ; Messina v. Moeller, 214 Md. 110 , 133 A. 2d 75 . Want of mutuality of remedy will not preclude specific performance unless the court finds that it is unable to insure the receipt by the defendant of that to which he was entitled under the contract. A further ground for rejecting the defendants’ contention on this point is that under the contract, which provided for payment of the balance of the purchase price “on or before” eleven years from the date of settlement and payments of $2,000 or more per year until payment in full should be made, there is no reason why the plaintiff should not be entitled to a decree for specific performance, if he so elected, conditioned upon the payment of the entire balance of the purchase price in cash upon a conveyance being made.

Trotter v. Lewis, 185 Md. 528 , 45 A. 2d 329 . As is stated in 138 A. R. R. 219: “Even though the contract calls for the vendee’s personal obligation or signature, the' assignee, by providing the same or, in some circumstances, a cash equivalent, may become entitled to a decree of specific performance.” In view of Baker’s offer to procure Auerbach’s joinder in whatever documents his joinder might be necessary and in view of the fact that the contract could have been satisfied by payment of the entire purchase price in cash, we think that Baker is not precluded, by reason of his failure to join Auerbach as a party or to make a tender in the bill of Auerbach’s joinder in the execution of any necessary documents, from maintaining this suit for specific performance conditioned ⁴⁸⁸ upon either Auerbach’s joinder in any necessary instruments or payment in full in cash. The Chancellor did not determine whether Auerbach’s joinder in the deed of trust or in any notes to be secured thereby was required, nor do we consider it necessary to decide that question at this time. We do, however, in accordance with Rule 885, Maryland Rules, express the opinion that no notes, whether executed by Auerbach or by Baker, or by both of them, are required, since the contract does not call for any notes.

The Alleged Uncertainties of the Contract. The Chancellor held that the contract was so uncertain in the following respects as to bar enforcement by specific performance: first, and most important, with regard to the location of the land to be retained by the sellers and hence the exact description of the land to be sold to the purchaser; second, as to who was to pay the cost of the survey; and third, with regard to the terms of the deed of trust. Description of the La-nd. The basis of the Chancellor’s finding that the contract was indefinite as to the description of the land was that there was “no specification and no testimony as to where the beginning line was to be drawn in order to omit from the entire farm the acreage which was to he retained by the sellers under the terms of the contract.” We do not agree with this view of the evidence.

The property sold is described in the first paragraph of the contract as the “Dawson Farm containing 80 acres more or less, also known as Mary J. Boland Farm in Montgomery County in the State of Maryland.” The second paragraph incorporates “Schedule A” on the reverse side as a part of the contract and contains the covenant of the sellers (previously quoted) to “deliver eighty (80) acres of land with 4 room tenant house [,] such land having a frontage of 866.5 feet on Old Route 240.” The provisions of Schedule A providing for the release of acreage have already been quoted. As will be recalled, the first paragraph of that Schedule called for the release of acreage fronting on Old Route 240 “beginning at the northeast corner of said prop ⁴⁸⁹ erty” for $1000 an acre, that each such acre should have a frontage of not less than 200 feet, that land not fronting on that road should be released for $500 per acre, and that “All acres released shall be contiguous.” The second paragraph of Schedule A describes the area excluded from the contract of sale and so to be retained by the sellers as the residence and outbuildings occupied by the sellers situated on a parcel of land “with 200 foot frontage on Old Route 240 and a depth sufficient to take care of remaining acreage in excess of the eighty (80) acres covered by this contract.” The evidence showed that Mr. Dawson in May, 1955, had furnished to Mr. Measell a copy of a recorded plat of the three lots which the Dawsons had acquired and which had been part of the Boland farm. A copy of this plat is in evidence. The easterly boundary of the three lots is a straight line bounding on Old Route 240, with a total length of 1066.5 feet.

The northerly boundary runs in a more or less westerly direction from that road by three different courses, the first of which is roughly at a right angle to Old Route 240 and extends for 872 feet. The southerly boundary of the tract runs westerly from Old Route 240, also almost at a right angle thereto (though not quite parallel with the beginning of the northern boundary) and extends for a distance of 3029.5 feet. The buildings reserved to the sellers are all located within the tract reserved to them if the southernmost 200 feet of the frontage on Old Route 240 constitute the easterly line of that tract. Reading Schedule A and other parts of the contract together (and Schedule A is a part of the contract), it is clear that the northeastern corner of the