Baltimore Permanent Building & Land Society v. Smith

Bartol, C. J., delivered the opinion of the Court. This is an action instituted hy the appellee, for the-breach of a contract made with him hy the appellant, for the sale of a parcel of land. The contract is dated February 16th, 1877. The property which is the subject-matter of the contract, is therein described as “all that property situate and lying in Calvert County, Md., containing about sixty-five acres, being a part of the property known as ‘Solomon’s Island,’ and which was purchased by said Land Society from Philip M. Snowden,, trustee, under a decree passed by the Circuit Court for Calvert County, in equity, in the case of the Baltimore Permament Building and Land Society against Isaac Solomon and Wife, except eight or nine small lots, since-sold by it, which lots were mentioned in leases made by said Solomon, after the mortgage given by him to said Society.” The consideration or price to be paid by the appelleewas $12,000, “to wit, $500 in cash, $4500 on or before the 14th day of April 1877, and the balance, to wit„ $7000, to be paid in two years, from the date hereof, to be secured by mortgage on the property hereby agreed to be-sold, with interest payable semi-annually.” The cash payment of $500 was made.

By the covenants of the parties a deed was to be made by the vendor on payment of $4500, as stipulated, and a. mortgage executed by the purchaser to secure $7000, the balance of the purchase money. It was “ agreed that the title to the property was good and clear of all incumbrances.” The contract was signed by the appellee at the office of his attorney in Philadelphia. He had never seen the property and asked Wilton Snowden, (secretary) who represented the appellant, for a plat. When the secretary ¹⁹⁷ returned to Baltimore, “he wrote to the agent of the ■company for a plat made hy Mr. Grover, in 1872.

The agent replied, he would have the plat in a few days;” on the 6th of March, the secretary received a letter and the plat; on seeing it, he discovered a considerable discrepancy between the number of acres mentioned in the contract, and that shown on the map. He soon after notified Mr. Beman in Baltimore, (who had a written agreement with the appellee, dated February 13th, for one-half interest in the purchase,) showed him the plat and requested him to inform the appellee of the discrepancy, which Beman did hy letter, the same day. Beman’s letter was dated March 13th, and received by appellee the following day, when, as he testifies, he first heard that there were less than sixty-five acres of land. On the 17th of March, appellee went to Baltimore, ■started thence, on the night of the 18th, to visit the island, in company with Beman and Wilton Snowden; returned to Baltimore on the evening of the 19th, and went to Philadelphia the same night.

Saw nothing more of the company till the 14th day of April, when he tendered $4500, and demanded a conveyance of sixty-five ■acres. The answer was that “ they had not got it, could not do it,” or words to that effect, “that they had not the land.” Snowden testifies that “ appellee demanded sixty-five acres, declined to accept the deed and execute the mortgage, because there was not sixty-five acres of land, he wished a proposition, the company offered to abate $2000 for the deficiency, which was declined, invited a proposition from him, which he declined to make. Then the company said they were willing to pay hack the $500, and cancel the agreement. About two months afterwards the $500 was tendered to him in Philadelphia which he declined to accept.” It appears, that on the 21st day of March preceding, an abstract of title was sent to the appellee, hy the secre ¹⁹⁸ tary, which with the plat was placed hy him in the hands of Mr. Rohinson, his attorney, who under his instructions, went to Calvert County on the 7th day of April, and made a careful and thorough examination of the title, which proved satisfactory.

Mr. Rohinson states that the only objection was the deficiency of land. He states that “ he was not sent down to examine the title, till after the appellee knew, and he knew that the quantity of acres was deficient.” On the 10th day of August 1877, the following letter was sent to the appellee, and received the following day “Baltimore, 10 Aug. 1877. “Levi E. Smith, Esq. “Dear sir: I write to announce to you, that by a. survey of Solomon’s Island, made hy order of the hoard of directors of this Society, and completed a few days ago,, there were found 48.08 acres in the entire island. After deducting lots sold and leased previous to the agreement with you, there were found thirty-six acres. “ Yours truly, “ Wilton Snowden. “ Secretary.” The suit was instituted on the 27th day of November 1877. The declaration contained two counts, to the first the defendant demurred, and the demurrer was sustained.

On this ruling no question has been raised. The case was tried below, on the issue joined upon the plea to the second count. This count sets out substantially the contract, and alleges a breach by the appellant in failing and refusing to execute and- deliver a deed conveying about-sixty-five acres of land; claims damages for this breach, and also special damage, for expense and trouble incurred hy the plaintiff, and for moneys expended by him for ¹⁹⁹ legal advice and counsel in the investigation of the title, &c. The first exception • to he considered, is that taken to the parol evidence offered by the plaintiff, of the representations by Snowden as to the number of acres, made before and at the time the contract was signed.

This is found in the testimony of Smith, (the plaintiff,) Robinson and Snowden, which was admitted subject to exception, and the appellant, by its fourth prayer, asked to be excluded as inadmissible, because it tended to contradict, alter, or explain the terms of the written contract. This testimony is as follows: Smith, (the appellee,) stated “ that he informed Snow-den that. Beman had represented that the company had seventy acres of land on the island. Mr. Snowden then proceeded to write the contract as it now appears, and then read it to witness, when witness heard him read ‘about sixty-five acres’ he said to Mr. Snowden seventy acres is what the property was represented to me to contain.’ ” Mr. Snowden replied “that there was more than sixty-five acres, but that as he was a little uncertain about the amount of land contained in the eight or nine small lots, which are excepted from the sale, he had written the area down at sixty-five acres, so as to be sure that the company could deliver at least that number; he assured witness that there were at least sixty-five acres, and rather more than less than that number.

On the 16th day of February, Mr. "Wilton Snowden came to the office of witness in Philadelphia having the contract with him ; Mr. Robinson, witness’s counsel was present and he read the paper over; when he came to the words c about sixty five acres’ he asked Mr. Snowden what was meant by c about,’ and Mr. Snowden assured Mr. Robinson that there were more than sixty-five acres, but that they put it sixty-five, so as to be sure they could deliver it; after this explanation, witness under the advice of Mr. Robinson ²⁰⁰ signed the contract, and paid the §500, which Mr. Snow-den wrote the receipt for, &c.” The testimony of Robinson is to the same effect. Snow-den testifies, “ At the time of signing the agreement in Philadelphia, Smith made some reference to the number of acres, and witness told him at that time, that it was the impression of the directors that there were about sixty-seven or sixty-eight acres of land ; the original deeds all through, and the mortgage to the company called for eighty acres of land, from which there were leased, as we supposed, twelve or thirteen acres, and witness stated to him that he thought sixty-five acres was a proper figure to put it at; and he thinks he gave Mr. Robinson the same response.” There is no rule of law better settled or more inflexible, than that which excludes parol evidence which is offered to vary or contradict the terms of a written contract. The rule on this subject is distinctly stated in Rice vs. Forsyth, 41 Md., 402 , as follows: “ It is a cardinal rule that parol or extrinsic evidence is inadmissible to add to, contradict or vary the terms of a written contract. It may be admitted to ascertain and make certain the parties and subject-matter of an agreement, to apply the contract to its subject, to prove any collateral independent fact about which the written agreement is silent, and to remove latent ambiguities.

In such case it is used not to contradict or vary the written instrument, but to uphold and enforce it as it stands.” It is sometimes a matter of some nicety to determine whether in a particular case, the parol evidence offered falls within the general rule, and few subjects have given rise to more difficult and • perplexing questions for decision. In cases of latent ambiguity, parol extrinsic evidence is always admissible to remove such ambiguity, so that the contract may be applied to the subject-matter. Oases of this kind have no application here, and need not be cited. Sometimes the parol evidence is ²⁰¹ offered to prove some collateral, independent fact, or agreement between tbe parties about which the written contract is silent; in such case it is admissible. ' Examples of the application of this rule are found in McCreary vs. McCreary, 5 G. & J., 141 ; Creamer vs. Stephenson, 15 Md., 221 ; Basshor vs. Forbes, 36 Md., 154 .

Many other cases might be cited; among them may be classed Erskine vs. Adeane, L. R., 8 Chy. Appeals, 756, 765, 766, cited by appellee, who contends that the present case falls within the same class. A brief recurrence to the terms of the written contract, and the parol evidence clearly shows that this contention cannot be supported. ■ The written contract in terms stipulates for the sale of a parcel of land, described as part of Solomon’s Island, containing about sixty-five acres. The purpose of the parol testimony is to prove a sale of sixty-five acres of land, without qualifying words, and also to prove representations made by the agent of the vendor, that the number of acres contained in the parcel sold, was at least sixty-five, and that such representations induced the appellee to sign the contract.

How this testimony cannot be said to relate to an independent collateral fact; on the contrary, it refers to the very subject-matter embraced in the writing, to wit: the quantity or number of acres; and its effect is to bind the appellant absolutely to convey at least sixty-five acres; whereas in the writing such a stipulation is not found, unless indeed such is the true meaning and construction of the writing, in which case the parol testimony has no significance ; but of this we shall speak hereafter. It is difficult to understand why the effect of the parol testimony, if it have any effect, is not to add to or vary the terms of the written contract. If the latter had contained nothing about quantity, or, the number of acres had been mentioned with the strongest words of qualification, such as “be the same more or less” ²⁰² the objection to the admissibility of the parol evidence would he perhaps more obvious, hut certainly would rest upon. no other principle or reason than that which exists in the present case. The legal question would he the same. ■ In dealing with this proposition, it is important to hear in mind the nature of this proceeding, and the pleadings in the case.

Here the suit is on the written contract. In another form of proceeding, if for instance, the suit were by the vendor to enforce the contract, and the purchaser were defending upon the ground of fraud, or mistake or misrepresentation as to quantity, whereby he was induced to enter into the contract, the parol evidence would he clearly admissible. But suchps not the nature of the case ; the appellee does not impeach the validity of the written contract, hut has declared upon it as binding, and seeks to recover damages for its breach by the appellant. No fraud or misrepresentation is alleged, nor could it he, in the form of. action selected.

In such case the appellee must stand or fall upon the terms of the written paper, and it is not competent for him to set up by parol another and different contract from that .on which he has declared. Watchman & Bratt vs. Crook, 5 G. & J., 239 ; Kribbs vs. Jones, 44 Md., 397 . And this objection applies with special force in a case like the present where the contract is within the Statute of Frauds and required to he in writing. Taney vs. Bachtell, 9 Gill, 205 .

For these reasons we are of opinion the parol evidence referred to was inadmissible, and there was error in refusing the appellant’s fourth prayer, which asked that it he excluded, and for the same reasons the first prayer of the appellee was erroneously granted, which referred to the parol evidence, and made it a part of the hypothesis of the prayer. The next question arises upon the construction of the written contract, upon which alone depends the appellee’s right to maintain the suit. ²⁰³ By the first prayer of the appellant the Court was asked to instruct the jury, “ that by the true construction of the agreement, the quantity of land did not enter into the essence