Blondell v. Orem

Markell, C. J., delivered the opinion of the Court. This is an appeal from an order (a) directing payment to petitioner Lightbown of $265.20 paid into the registry of the court pursuant to a decree of August 2, 1949, (b) allowing a counsel fee of $150.00 to the trustee under the decree for legal services to himself as trustee in opposing an application for certiorari in the Supreme Court of the United States, and (c) sustaining demurrers to, or dismissing, or both sustaining demurrers to and dismissing, sundry nondescript answers and petitions of appellants, mentioned by name in the order but not set out in either brief or appendix. This case originated in a bill of one Turover against appellants and a Mrs. Leapley and husband (both now deceased) for specific performance of a contract of sale of land by the Leapleys to Turover effected by exercise of a written option from the Leapleys obtained by Turover, through Lightbown as a real estate broker, before sale of the same property at the same price, $5,304 less commissions, by the Leapleys to appellants. The court, by its decree of August 2, 1949, granted specific performance against appellants, as purchasers with notice of Turover’s prior equity.

This court affirimed. Blondell v. Turover, 195 Md. 251 , 72 A. 2d 697 . Turover’s option agreement provided, “If sale is consummated as a result of this option, seller agrees to pay Edward N. Lightbown 5% commission in cash at the time of settlement.” Lightbown, though not a party, was the principal witness in the original case. The facts stated in the opinion of this court indicate that the option contract was procured by Lightbown.

The decree of August 2, 1949 directed appellants to execute ¹⁴¹ a deed to Turover and appointed Nicholas Orem, Jr. (plaintiff’s counsel) trustee to convey the property to Turover if appellants failed to do so, upon payment by Turover of $5,304, from which costs were to be deducted and the balance to be paid to appellants, “and from which sums shall also be deducted the sum of $265.20, being the one-half of the 10% broker’s commissions credited to defendants Louk and Blondell in their purchasers’ settlement statement as shown on page 6 of the depositions filed herein, and the sum of $265.20 thus deducted shall be paid by plaintiff into the Registry of this Court; provided, however, that this Court retains jurisdiction in the premises for the purpose of determining who is entitled to receive said sum of $265.20 held in the Registry of this Court, or in the hands of the Trustee hereafter mentioned, and any perón claiming the same may file his petition herein for payment of the same to him, whether or not he has heretofore been a party to this proceeding.” Appellant’s contract of purchase with the Leapleys provided for a broker’s commission of ten per cent, of which half was paid to Dunn & Company, brokers, and half credited to appellants. Appellants thus paid the Leapleys ninety-five per cent of $5,304, out of which the Leapleys paid Dunn five per cent. After affirmance of the decree, we are informed (though none of the proceedings is before us) that appellants and others filed in the United States District Court a bill against Lightbown, Orem, and Orem, trustee, for injunction against conveyance of the property pursuant to the decree. After dismissal of this bill for want of jurisdiction, another was filed, dismissed on similar grounds, and on appeal to the United States Court of Appeals the dismissal was affirmed.

Later application to the Supreme Court for certiorari was made and was denied, Louk v. Friedman, 342 U. S. 827 , 72 S. Ct. 51 . Meanwhile this case had been referred to an auditor, counsel fees had been allowed for services in the federal court litigation (except the ¹⁴² application for certiorari) and the auditor’s accounts making such allowances and allowances for other costs and expenses had been finally ratified and no appeal had been taken. Incidentally the amount on hand out of the $5,304 purchase price had diminished to $3,245.74. In February, 1952 Lightbown filed his petition for payment to him of the $265.20 paid into the registry of the court pursuant to the decree of August 2, 1949.

After the sundry proceedings above referred to, the order now under review was signed on March 27, 1952. It is not clear why in the decree of August 2, 1949 the $265.20 was not ordered paid to Lightbown, in view of Lightbown’s testimony in the original casé. Nor is it clear why, in view of the provision for further proceedings, Lightbown was asked by his counsel only whether he was the Lightbown mentioned in the option agreement, and whether he had been paid any commission arising out of the option agreement or the sale to Turover or by or on behalf of either of the Leapleys. However, as the