Boggs v. Dundalk Realty Co.

Stockbridge, J., delivered the opinion of the Court. This case was begun by the filing of a petition in the nature of a bill of complaint, to which a demurrer was interposed. The demurrer was sustained and petition dismissed in the Circuit Court for Baltimore County, sitting in equity. The sustaining of the demurrer and the dismissal of the petition was on the 9th of July, 1917.

On the 7th of September, 1917, and thus after the order had become enrolled, upon the petition of the complainant, the order of July 9th was revoked, and leave granted to file an amended bill of complaint, and on the day following, according to the docket entries, an appeal was taken to this Court from the decree previously entered in Baltimore County. At the time when the appeal was so taken, there was nothing from which the petitioner could appeal. On September 20th the order passed on the 7th of the month was rescinded, the effect of which was to leave the case in the condition it was prior to the order of the 7th of September. The case will accordingly be considered as though the order of September 7th had never been passed.

There appears in the record an amended bill, but the order of July 9th gave no leave to amend the bill, but dismissed the petition, and the amended petition bears this endorsement: “This paper was filed by the Clerk without leave of Court being first had and obtained,” signed by Judge UcLane. For the purposes of the case, therefore, this so-called “amended petition” will not be considered. ⁴⁷⁸ The original petition was drawn with no attempt at compliance with the general equity rules. It alleges in substance that on the 1st of August, 1913, the appellee gave to the appellant an option, or right of purchase for a parcel of ground, in Baltimore County of approximately twenty-nine acres, situate at Dundalk, for which the petitioner was to pay $500 an acre, and make certain payments on account of the purchase price of the land in accordance with the agreement. Exhibit A, filed with the petition, purports to be a copy of that agreement.

When that is examined it appears to be an agreement between the Dundalk Realty Company and the Branch Real Estate Company, per A. S. J. Jalceman, and in which the name of the petitioner nowhere appears. The agreement specifically provides that the option given by it is not to run over six months, and that in order to keep it alive $100 is to be paid on September 1, 1913; $200 to be paid on October 1st, 1913; $300 on November 1st, 1913, and that any money paid on account of the option is to be credited on the purchase price of the land, if a sale is effected under the option. The petition further sets forth that $100 was paid on September 1st, 1913, an offer made to pay the Realty Company $200 on the first of October, according to the terms of the option, but that the Dundalk Company declined to receive the same, and that several attempts were subsequently made to induce the Dundalk Company to accept the $200, but were declined, and that thereafter the company endeavored to cancel its contract, on the ground that the petitioner had not made the payments as agreed. On the 24th of October, 1913, an agreement was entered into between the Dundalk Company and Albert S. J. Jake-man, trading as the Branch Real Estate Company, reciting the agreement of August 1st, and that Jakeman had failed to comply with the terms thereof, so that it had become null and void,' and that the payment of $100 had become forfeited to the Realty Company by reason of the non-compli ⁴⁷⁹ anee with the conditions named in the agreement of August 1st.

This paper, filed as Plaintiff’s Exhibit B, gives an option to Jakeman to purchase the twenty-nine acres referred to in the agreement of August 1st for the sum of $22,000, and contains provisions by which Jakeman should have the right to sell off the land in small lots., in accordance with a survey and division of the lands which had been made at the instance of Jakeman, and from the purchase money paid for such lots sold, $650 was to he paid to secure the surrender by the tenant then in possession, certain amounts to the Dundalk Realty Company, which was thereupon to secure as to the lots so sold and paid for releases of two mortgages which were upon the land, and the entire purchase price of $22,000 was to be paid before July 1st, 1914. The party of the second part to this agreement, Jakeman, trading as the Branch. .Real Estate Company, was to lay out and grade streets in twenty and eighteen-one-hundredths acres of the land, and to cause to be laid cement sidewalks upon said streets. This agreement was not to he assignable without the written consent of the Dundalk Company. The agreement was signed by the Dundalk Realty Company, by its President, and Albert S. J. Jakeman, trading as “Branch Real Estate Company.” A month and a day later, namely, November 25th, 1913, this agreement was endorsed, “Cancelled”; A. Graham Boggs, Jr., and Albert S. J. Jakeman.

This is the first time that Mr. Boggs appears in the transaction. What his interest was is nowhere set out. On the same day, November 25th, Messrs. Jakeman and Boggs, for themselves and the Branch Real Estate Company, signed a. release