Brewer v. Sowers

Boyd, C. J., delivered the opinion of the Court. On the 26th day of September, 1910, the following agreement was made under the hands and seals of the parties: ‘‘This agreement, made and entered into' this 26th day of September, A. D. 1910, by and between Harvey B. Brewer and Mrs. Annie. Brewer, his wife, of Washington County, State of Maryland, parties of the first part, and Samuel W. Sowers, of Washington County, State of Maryland, party of the second, part, witnesseth, that for and in consideration of the sum of one dollar cash in hand, receipt of which is hereby acknowledged, we, the parties of the first part, do hereby grant unto the party of the second part the option to buy on or before November 1st, 1910, the following described property’at ($12,000), as follows: $1,500 cash on or before November' 1st, 1910, and balance on or before April 1st, 1911, when full possession will be given, being all that farm containing about 60 acres, situate about one mile north of Hagerstown, Md., along the Maugansville public road, being same farm now owned and occupied by the parties of the first part; and we bind ourselves that upon the tender or payment of the full amount as set forth above at any time within the time specified to make and deliver a good and sufficient deed for same to Samuel W. Sowers, the party of the second part, heirs or assigns, free and discharged of all liens and incumbrances of every character and description whatsoever. If at the expiration of the time above mentioned the terms as set forth have not been complied with, then this option shall be considered as null and void.

Witness our hands and seals this day and date. The parties of the first part agree that the wheat crop of about 20 acres shall be included in the above mentioned price.” ⁶⁸³ On the 25th of October, 1910, Mr. Sowers notified Mr. Brewer that he would go to his place the next day to pay him the $1,500 according to the terms of the agreement. On that day he did go to the Brewer farm to pay the $1,500 cash, which he took with him. He was told that ¡Mr. Brewer was not at home, although he testified that when he was near the lane which leads to the buildings on the farm he saw Brewer leave a fodder stack at which he had been working.

A child had told him he was in the barn, hut he was unable to find him, and after driving over the farm he returned to. the barn, hut still failed to find him. Hpon his return to Hagerstown he wrote Brewer a letter notifying him that he would be at Ms bouse Saturday, October 29th, at 2 o’clock P. M., to pay him the $1,500 cash, according to the terms of the option given by himself and wife, on September 26th, 1910, and registered that letter. At the time named he went to the farm, taking with him the $1,500 in cash, hut was unable to find Brewer. On November 1st he went to Brewer’s farm for the third time, but still failed to see him.

During that time Brewer had his mail left by the carrier at the store of 0. C. Ditto and the registered letter was left there. Although Brewer got a daily paper and other mail at that store, he did not take the registered letter, and it was finally returned to Mr. Sowers by the post-office officials. While it was at Mr. Ditto’s store in Brewer’s mail box, Mr. Ditto called Mrs. Brewer’s attention to it, hut she did not take it, and it can not he doubted that she and Brewer knew, or at least suspected, what it was.

Without referring to other evidence on the subject, it is perfectly manifest that Brewer was endeavoring to keep out of Sowers’ way, to prevent him from paying the $1,500. Failing to find Brewer, Sowers on November 1st, 1910, filed a bill of complaint against him and his wife, praying for specific performance of the agreement and for an injunction to restrain them from selling or in any way alienating the lands. He paid the $1,500 into Court and alleged in his ⁶⁸⁴ bill that he was prepared to fully comply with-the terms of the agreement, and stated in detail the efforts he had made to reach Brewer. . The bill alleged, among other things, that Brewer “is willfully, deliberately and fraudulently absenting himself from his usual place of residence, and is thus avoiding your orator, and attempting to defeat him in his efforts to find bim, the said Harvey B. Brewer, so- as thus to make it impossible for your orator to fulfill and literally comply with the contract until, after .the first day of November, 1910”; but on December 12th Brewer answered that and other paragraphs specifically mentioned by saying he “neither admits nor denies the matters and things therein alleged and requires that the -same shall be duly proven.” Mrs. Brewer in her answer filed the same day alleged that “she signed the agree-ment upon the information that- the same was an option to the Cumberland Valley Railroad Co., to sell a strip of land for the consideration of $1,500, and acting upon this information she signed said agreement,” and alleged she would not .have signed it if she had known that it was a right or privilege to the complainant to- purchase the farm.

Three days before those answers were filed Jacob H. Cost, who held a mortgage on the farm for $4,660, assigned it to Henry E. Wingert, for the purpose of foreclosure and collection. Mr. Wingert, who was also attorney for Brewer, advertised the property for sale on January 3rd, 1911, under the power of sale contained in the mortgage. Mr. Sowers tendered him the amount due on the mortgage, including costs, &c., paid the amount ($4,944.71) into Court and obtained an injunction to prevent him from selling the property. The Court having refused to dissolve that injunction, an appeal was taken to this Court, when the decree of the lower Court was affirmed, as shown in the case of Wingert v. Brewer, 116 Md. 518 .

That case and “the one asking, for specific performance were consolidated by order of the Circuit Court for Washington County, and on the 12th day ⁶⁸⁵ of February, 1912, a decree was passed by which it was decreed: First — That Sowers pay the Clerk of the Court within fifteen days from the date of the decree $5,555.29 — that being the difference between the $12,000 and the two sums paid into Court by him. Second — That Brewer and wife within five days after payment of said sum into Court make and deliver a deed for the farm. Third — That Wingert, assignee, be perpetually enjoined from selling, etc., the farm under the mortgage. Fourth — That the clerk pay Harvey B. Brewer, upon the execution and delivery of the deed, the sum of $1,500 paid the clerk by Sowers, and the $5,555.29.

Fifth — That Sowers be subrogated to the rights of Cost and of Wingert, assignee, in the mortgage. Sixth — That the clerk pay said Wingert, assignee, upon his request the $4,944.71, in satisfaction of the mortgage, costs, etc. Seventh■ — That Brewer and wife pay the costs in the specific performance case and Wingert, assignee, pay them in the other case. From that decree Brewer and wife appealed, and Sowers entered a cross-appeal, especially from the first and fourth paragraphs. We will first consider the appeal of Mr. and Mrs. Brewer. 1.

It is contended for them that Sowers is not entitled to specific performance because he did not pay, or offer to pay, the purchase money as required by the agreement, relying on the provision that “If at the expiration of the time above mentioned the terms as set forth have not been complied with, then this option shall be considered as null and void.” There can be no difficulty about the question. Sowers not only notified Brewer of his acceptance of the option before November 1st, 1910, but he did everything that could be required of him in his effort to pay the $1,500 to Brewer, and, failing to find him, paid that sum into Court on November 1st. ⁶⁸⁶ The opinion in 116 Maryland sufficiently shows our views as to his right to pay off the mortgage, to avoid the necessity of 'further comment on that, and as to the balance of the purchase money due on or before April 1st, 1911, the suit for specific performance was then pending, the defendants were resisting the performance of the contract in every possible way, and Sowers was not only willing to perform it himself, .but was at the very time the money was to have been paid asking the aid of the Court to require Brewer and his wife to accept it and to perform their part of the contract. To deny Sowers relief under such circumstances on the ground that the balance of the purchase money was not actually paid by the time named in the agreement, would not only be without precedent, but contrary to every principle of justice and equity which are supposed to control Courts of Equity. Over half of the money was actually paid into Court before the 1st day of April, 1911, and while the amount to redeem the mortgage was not to be paid to Brewer, it was to be paid for his benefit, and it was necessary to be paid in order that the property could be conveyed “free and discharged of all liens and incumbrances of every character and description whatsoever,” as the agreement required.

We held in 116 Maryland that if the option was valid Sowers had the right to pay off the mortgage in order to protect his interest in the property, and if it was necessary to prove Brewer’s connection with the attempt to sell the property under the mortgage, which’it.is not, it would he difficult to escape the-conviction that the sale was in reality attempted in what was supposed to be for his interest. The mortgage was assigned to his attorney for the purpose of foreclosure and collection, and if the only object of the mortgage was to collect'his money and if the assignee had no other interest in selling the property, the latter’s persistent refusal to accept the money, or even to let Sowers know the precise amount due, can not be accounted for excepting on the theory that it was believed that the sale would deprive Sowex*s of sxxch rights as he had under the agreement, and that Brewer was interested in and ⁶⁸⁷ approving of the course pursued by his- attorney. Indeed, it is only just to Mr. Wingert to assume that Brewer approved of his acts, for he would not have been justified in refusing to accept the money and still continue to represent Brewer, unless Brewer was cognizant of and approved of his action in reference to the mortgage. The fact that all of the purchase money was not actually paid on or before April 1st, 3911, can not therefore prevent Sowers from obtaining a decree for specific performance under the circumstances stated above, and others shown by the record which could be mentioned. 2.

The agreement purports to have been made for the consideration of one dollar cash in hand, receipt of which is acknowledged, and was executed under the hands and seals of the parties. On cross-examination Sowers testified that he had not paid the dollar, and it was argued that there was no sufficient consideration for the option, and that it made no difference that the option was under seal. Although that is not very material, for reasons we will hereafter state, we can not concede that such is the law. In the absence of fraud, or some inequitable advantage taken by one party over another, Courts do not inquire into the adequacy of the consideration for a promise, but usually leave that to the parties, if it is something of value.

As said in Brantly on Contracts (2d Ed.), page 88: “There may be a qualitative but not a quantitative analysis of consideration. A stipulation in consideration of one dollar is just as effectual and valuable as a larger sum stipulated for and paid,” and on page 331 that author says: “When the agreement giving the option is under seal no other consideration is necessary. It can not be revoked and if exercised will be specifically enforced.” Tn Hannan v. Towers, 3 H. & J. 147 , it was said by Kiltt, Chancellor, that (quoting from syllabus) : “A consideration may be averred and resorted to without being-expressed in the deed; and any consideration, however small, is sufficient in a Court of equity to uphold an agreement.” That decision was affirmed by the Court of Appeals and was ⁶⁸⁸ also approved in