Cassell v. Pfaifer

McWilliams, J., delivered the opinion of the Court. Truth is always strange. 1 It may sometimes be improbable. 2 These ancient cliches are singularly appropriate to this episode in the lives of the appellant, Junia Cassell (Cassell) and Susan Pfaifer, the appellee (Susan). They met during the Christmas holidays in 1955 and began to keep company in the spring of 1956. She was 35 and widowed.

He was 33, married, but separated from his wife. 3 He was a clerk in a neighborhood food market. She kept house for her uncle, John Kruk (sometimes spelled Crook), with whom she had lived since childhood. Neither had advanced beyond grade school. Early in the summer of 1956, while in a hospital convalescing from abdominal surgery, he was visited by Susan and her Uncle John.

Because Cassell lived alone they urged him to stay at Uncle John’s house, on York Street, until he was fully recovered. Uncle John said, “You no can take care of yourself, you come and stay until you get well.” For a while he was a guest but when his in ⁴⁵⁰ surance benefits became available he began to pay $20 per week for his room and board. Soon after he moved in Susan became his mistress. In 1945 Uncle John had conveyed the York Street property to Susan “reserving * * * a life estate unto himself with the full and absolute power to mortgage, sell, convey * * * the entire estate.” Whether Susan was aware of her remainder interest when she met Cassell is not revealed by the record.

Nor is there any indication that Cassell, at that time, knew of it. Cassell found the amenities of the household to his liking and they (including Susan’s daughter, Jean) settled into a pleasant, harmonious routine. They “ate together, * * * went places together, * * * went out and had fun together, * * * went together on picnics [and vacations].” Cassell bought a washing machine, a studio couch, a hot water heater, a steam iron and a typewriter, all of which were put to use in the house. Susan wore a ring which looked like a wedding band and some people thought they were married.

He did odd jobs around the house and, on at least one occasion, provided the necessary materials. As he put it, he “usually done what a man usually does around the house as a married man.” He felt they “were all living there as one happy family.” In late 1959 a builder demolished the structure next door and, in the process, damaged Uncle John’s house. He had counsel file suit against the builder and in April 1960 a settlement was negotiated. Counsel deducted $600 for services and made his check for the balance ($1,700) payable to Uncle John and Susan.

This check was endorsed and left (neither cashed nor deposited) with Paradise Building Association, Inc. (Paradise) . Uncle John, Susan and Cassell debated whether to repair the house or accept the builder’s offer of $4,000 and buy another one. Cassell thought the house was not worth repairing. Susan said she couldn’t “afford' to buy a house.” After much talk Cassell said “Uncle John loves me like a son and I like him as a father.

As [we are] all one family and we are going to get married, what’s wrong with us all going in together?” No one demurred so Susan and Cassell went house hunting. She learned from her younger sister that a house on Doris Avenue was for ⁴⁵¹ sale. They looked at it, liked it and, later, took Uncle John to see it. Further details were left to Cassell.

He talked to the people at Paradise and from them he learned that Paradise would finance the purchase only if he (Cassell) joined in the execution of the mortgage. It seems that Uncle John and Susan were not acceptable because he was retired, she was a widow, and neither had sufficient means or income. Cassell said he relayed all this information to Uncle John and Susan. Early in May Uncle John disposed of the house and Cassell and Susan signed the contract for the Doris Avenue property.

As earlier noted, the check for $1,700 had been left with Paradise. Cassell went to the Paradise office, added his name as an-endorser, deposited $1,200 and received the check of Paradise for $500, which he and Susan took with them when they went to sign the contract for the Doris Avenue property. The owners presented them with a contract on a printed form which was not fully completed. Cassell wrote in his name as buyer and made other additions concerning certain appurtenances.

He signed the contract and then passed it to Susan. Oddly enough she signed Uncle John’s name. Their signatures were witnessed by her daughter, Jean and a boy friend. The purchase price was $10,200, $500 of which the sellers’ receipt stated was “Received from Junia H. Cassell.” Cassell had written in also a provision calling for settlement in 30 days, “if possible.” By arrangement with the owners of the Doris Avenue house, Cassell, before they moved in, made a number of repairs and improvements.

Early in July he went to the office of Paradise and signed the application for the loan he had negotiated earlier. The application indicates that “title [is] to be taken in the names of Sue Pfaifer, John Kruk and Junia H. Cassell.” Item 2, under the heading “Personal History,” calls for the full name of the applicant’s wife, “if married.” Cassell inserted “Sue Pfaifer (wife to be).” During the forenoon of 7 July I960 Uncle John and Susan (Cassell was not present) went to the office of The Title Guarantee Company for the settlement of the York Street house. Uncle John signed the deed and the memorandum of settlement and received the title company’s check, to his order, for $3,-741.94. In the afternoon of the same day Cassell, Susan and ⁴⁵² Uñele John went to the office of I. William Schimmel, Esq., the attorney for Paradise, for the settlement of the Doris Avenue house.

The memorandum of settlement shows that the amount of the loan was $5,200, to which was added the amount Paradise was holding in escrow 4 ($1,400). Uncle John handed over the $3,741.94 check he had received at the York Street settlement which was more than was needed so Mr. Schimmel gave Uncle John his check for the excess ($162.40). The sellers signed and delivered a deed which created a joint tenancy in Susan, Uncle John and Cassell. The mortgage, requiring monthly payments of $43.89 principal and interest, and $31.46 expenses, was then signed by all three.

Uncle John failed rapidly after the move to Doris Avenue. He had been something of an invalid since 1957. Cassell had taken him to and from the hospital a number of times and frequently he assisted Susan in performing the nursing services the old man required. One of the symptoms of his ailment was an incontinence of both bladder and bowel.

Cassell, at times, had to assist in attaching the urinal device he had to wear. He got along well with Uncle John, who “was like a father to him.” Cassell felt he “was like a son to ” Uncle John. He was with him the night he died (28 October 1961). Uncle John’s death brought to an end any financial assistance he may have provided.

Otherwise things went on pretty much as before. In the spring of 1963 they bought an awning for the house. The application for the loan ($428), which made their purchase possible, was signed by Cassell and “Susan Pfaifer Cassell.” Then she signed the contract of sale “Sue Cassell.” On a number of occasions Cassell had asked Susan to marry him but, for reasons not in the record, “she kept turning * * * [him] down.” Their liaison mwureuse, which she seems to have preferred, began to founder in the fall of 1963. He proposed marriage for the last time in November and when she refused he told her he was “going to wait until the first of the year” and that if, by then, she hadn’t made “up * * * [her] mind ⁴⁵³ to marry * * * [him], * * * [he] was getting out.” He left on 7 March 1964 and on 4 September 1964 married Florence Bender Cassell.

The ensuing litigation was begun by the filing, on 2 September 1964, of Cassell’s petition for the sale, in lieu of partitition, of the Doris Avenue house. On 19 September Susan filed a bill of complaint to compel Cassell to convey his interest to her and to restrain him from transferring it. Susan’s bill of complaint alleges neither the existence of a confidential relationship nor facts from which such a relationship might arise. There is no allegation of fraud nor the recital of any facts from which fraud might be inferred.

Her bill of complaint is remarkable in other respects. She alleges the acquisition of the Doris Avenue house as a joint tenant with Uncle John (excluding Cassell). No mention is made of Cassell’s liability on the mortgage. She alleges ownership of the York Street property by herself and Uncle John as “joint tenants.” And, despite her special knowledge to the contrary, Cassell is referred to, throughout the bill of complaint, as “she,” “her” and “herself.” On 22 December the cases were “consolidated for purposes of [the] trial,” which took place on 4, 6 and 7 May 1965.

Judge Prendergast, in deciding in favor of Susan, held that a confidential relationship existed between her and Cassell. With that holding we are unable to agree. It is true, as has been pointed out in Susan’s brief, that the decision of the trial court on the facts must be respected unless clearly erroneous. It is also true that before we can say that the lower court’s decision is clearly erroneous the evidence must be reviewed in a light most favorable to Susan.

If, viewed in that light, there is substantial evidence to support the factual conclusion, then we should accept that conclusion. But if there is no substantial evidence, then the conclusion may be disregarded as arbitrary. Space Aero v. Darling, 238 Md. 93, 106 , 208 A. 2d 74 (1965); Goodwin v. Lumbermens Mut. Cas.

Co., 199 Md. 121, 129 , 85 A. 2d 759 (1952). Susan cites many other like decisions of this Court and of other courts, but in one way or another, they all say the same thing. The trial court’s conclusions of law based upon the facts, however, are reviewable by this Court. Space Aero, supra. ⁴⁵⁴ We are not here concerned, we think, with a relationship which is presumed, by its very nature, to be confidential.

Zimmerman v. Hull, 155 Md. 230, 240 , 141 Atl. 531 (1928). The relationship, if it exists, must be proved as a fact. Tracey v. Tracey, 160 Md. 306 , 153 Atl. 80 (1931). In our judgment the evidence offered, in the case at bar, to prove the fact lacks that degree of substantiality which would require us to affirm the trial court.

There can be no doubt that Uncle John, Susan and Cassell, by their cooperative effort, accomplished something which would have been difficult, if not impossible, of accomplishment without any one of them. Uncle John had the necessary cash. Cassell supplied the credit and Susan undertook the management of the household and the care of Uncle John. Judge Prendergast gave his reasons for finding that a confidential relationship (between Susan and Cassell) existed and we-shall discuss them in the order in which he stated them. “While Mr. Cassell [he said in his opinion] was fully aware of the fact that * * * [Susan and Uncle John] had been represented by Mr. Kimmelman [in the damage suit] he [ Cassell] made no effort to have Mr. Kimmelman come out and attend the settlement on this Doris Avenue property.

Mr. Kimmelman simply was not consulted.” Uncle John had employed Mr. Kimmelman to file the suit for damages and when the case was settled he, with Susan’s approval, directed Mr. Kimmelman to negotiate the sale of the York Street property. Mr. Kimmelman did so and prepared the contract of sale which was signed by Uncle John and Susan. Nowhere in the evidence does it appear that Cassell procured the services of Mr. Kimmelman for Uncle John or that he ever prevented or discouraged Uncle John (or Susan) from consulting him thereafter. Neither Uncle John nor Susan consulted Mr. Kimmelman in connection with the settlement of the York Street house.

In fact, Uncle John went (with Susan) to the title company’s office (the Doris Avenue property was settled later the same day) and concluded the transaction without the advice or assistance of anyone. Although Mr. Schimmel had represented Cassell in his divorce case Cassell did not know he was the attorney for Paradise, to which he had been referred by his insurance agent. While cross-ex ⁴⁵⁵ amining Cassell, Mr. Kimmelman twitted him about this. “Why didn’t you * * * ask me to represent * *