Cohen v. Numsen

Briscoe, J., delivered the opinion of the Court. The bill in this case was filed in the Circuit Court of Baltimore County on the 26th day of August, 1905, by the appellants against the appellees for the specific performance of an agreement in writing for the sale of a fee-simple lot of ground situate upon the northwest corner of Park Heights and Belvedere avenues and fronting 297 feet more or less on Park Heights avenue, and fronting 647 feet more or less upon the northwest side of Belvedere avenue in Baltimore County at and for the sum of $9,500, and with an abatement of the purchase price, for an admitted shortage in the number of feet. The bill charges that by a survey, subsequently made, the lot was found to contain by actual measurement only 262 feet 4 inches, on Park Heights avenue, and 632 feet on Belvedere avenue, a shortage of about thirty-five feet on Park Heights avenue and about fifteen feet on Belvedere avenue. It is also alleged, that the defendants refuse to allow any ⁶⁷⁸ abatement from the purchase price, the difference in value of the lot being on or about the sum of $2,500 or $3,000.

Subsequently, on the 23rd day of November, 1905, the appellants obtained leave to file an amended bill, wherein it is prayed that the contract may be reformed by striking therefrom the words “more or less” and the price agreed to be paid.for the lot may be so abated and reduced, and the plaintiffs be required to pay for only so much of the lot purchased, as the appellees can conve}'- under the contract, at the rate stipulated and the contract as so reformed, be decreed specifically to be performed. The ground of the relief, upon which it is sought to strike out the words “more or less” in the contract is an alleged representation, by the defendant, George N. Nunsen, agent, at the time they were inserted, that they meant inches and did not mean feet. The appellants further contend, and they so allege in their bill, that it was. understood between the appellants and the appellee, Nunsen, that thé property was purchased for the purpose of being divided into lots of fifty feet front each on Park Heights avenue, and ten lots of fifty feet front each on Belvedere avenue, and owing to the fact of the shortage in the quantity of the ground the desired number of lots cannot be obtained. The defendants answered both bills admitting the execution of the agreement, but denying their material allegations and. asserting that when the words “more or less” were inserted, it was distinctly agreed and understood between the parties that the number of front feet could only be approximated, without a survey or actual measurement; that the words “more or less” were inserted on the demand of Numsen and with the consent of both plaintiffs, and they were willing to purchase the lot without definitely ascertaining the number of front feet in the same.

The defendants, .also by their answers, positively deny that the property was sold upon the assurance and representation that it was to be divided into the number of lots, alleged in ⁶⁷⁹ the bill of-complaint, but that the appellants were willing to purchase it and to take all the risk as to the number of front feet. The general replication was filed to the answers, and a large mass of testimony taken on both sides. The testimony is very conflicting and a large portion of it is absolutely irreconcilable as to the acts and declarations of the parties prior and at the time the contract of sale was signed. There is no allegation of any fraudulent or deceitful representation upon the part of Mr. Numsen, the agent, and he testifies that he did not know the exact number of feet in the lot.

The principle is well settled that a Court of equity will in a proper case and upon clear and satisfactory proof, reform a written instrument and so amend it as to make it conform to the real intention of the parties. O'Keefe v. Irvington, 87 Md. 200 ; Broumel v. White, 87 Md. 527 ; Ranstead v. Allen, 85 Md. 482 . In Stiles v. Willis, 66 Md. 552 , it is said: “But in such cases, it is not enough to show the intention of one of the parties to the instrument only; the proof must establish incontrovertibly that the error or mistake alleged was common to both parties. * * * The Court will never, by assuming to rectify an instrument, add to it a term or provision which had not been agreed upon, though it may afterwards appear very expedient or proper that it should have been incorporated. And Lord Eldon, in Beaumont v. Bramley, 1 Turn. & Russ. 41, said, in deciding cases of this nature, weight must be given to what is reasonably and properly sworn to on the part of the defendant because it must be a very strong case that would, even in a recent transaction, operate to overturn or vary a solemn instrument.” Judge Story in his work on Equity