Bechtel v. Cone

Irving, J., delivered the opinion of the Court. The appellant sued the appellee in the Superior Court of Baltimore City, in an action of assumpsit. The declaration was for goods bargained and sold, work and labor done, and contained the ordinary money counts. The defendant pleaded never indebted,' never promised, payment and set-off.

It was admitted that there was a verbal contract between the appellant and appellee, that the appellant should do the plumbing and gas-fitting in ten houses of the appellee, for the sum of two thousand and fifty dollars in money. After making that contract, it appears that another contract was verbally made between the parties, that the appellant should take a certain house of the appellee, at the price of twelve hundred dollars, subject to a certain mortgage resting on it, in part pay ⁷⁰⁵ ment for the work, and the residue only in money. The only questions in the case grow out of this new contract, (whereby the mode and terms of payments provided for in the first contract, were designed to be changed,) and arise upon the prayers granted and refused. It is urged by the appellant that there were conditions precedent to be performed by the appellee, before the contract was to be consummated ; that there were representations concerning the property which proved untrue, and justified his repudiating the contract; and that being a contract for an interest in lands, it is within the fourth section of the Statute of Frauds and void, because the same was not reduced to writing.

To determine whether the Superior Court ruled correctly on the prayers, which were intended to present the .several phases of these questions, it is necessary to review briefly the facts bearing thereon. After the making of this verbal contract for the sale of the house on the one side, and its acceptance in part payment for work done, on the other, it is admitted that the work contracted for was all done, and some extra work besides, all of which was satisfactory. It is in evidence, that an appointment was made for a settlement, and that the appellant directed certain attorneys to examine the title and prepare a deed for the house, which was done, and he paid for its preparation. It was also proved that the deed was executed by the appellee, and left with the justice who took the acknowledgment, for the appellant, who called to get it, but declined to receive it because certain tax receipts had not been left with it, and for no other reason; but it was admitted the appellee had no notice of this refusal, or the reason for it.

The appellant testified that all the taxes were to be paid by the appellee before he was to take the property. The appellee admitted he was to pay the taxes in arrear, but did not understand it was a condition precedent to the consummation of the agreement. Subsequently to the execution of the deed, and ⁷⁰⁶ its being left with the justice for the appellant, the parties met and settled for the work done. The price of the house was deducted from the gross cost of the work done, and the cash or its equivalent was paid for the residue, after deducting the house, and the appellant executed a receipt in full.

At that time the appellant asked for the tax bills and receipts and the appellee promised they should be sent to him.' At the time of this settlement, the appellee gave the appellant an order on the tenant of the house for the rent; and for fourteen months thereafter the appellant received the rent from the tenant, and paid one year’s ground rent. Meanwhile the deed remained in the hands of the justice and never was taken away; though the appellee was never notified thereof,, notwithstanding they had met sundry times. The appellant, in August, 1876, advertised the house, and offered it at public auction, but the auctioneer said the price