Downs v. Reighard

Barnes, J., delivered the opinion of the Court. This appeal is a sequel to our decision in Reighard v. Downs, 261 Md. 26 , 273 A. 2d 109 (1971). In that case, we reversed a judgment entered by the Circuit Court for Harford County (Dyer, J.) for costs in favor of Downs, a surveyor, whose employee inverted certain coordinates in computing acreage on a subdivision plat prepared for Reighard, showing a parcel of land containing 22.075 acres, whereas the parcel only contained 19.58 acres. The trial court had concluded that there was no liability on the part of Downs.

We reversed and held that there was liability on the part of Downs to Reighard for negligence in computing the acreage and remanded the case to the lower court for the determination of Reighard’s damages, indicating, however, that the trial court had properly granted Downs’ motion to strike out testimony relative to lost profits, the proof on this theory of damages being too conjectural and speculative to support an award of damages on that theory. Upon the remand, Judge Dyer reviewed the testimony and in his written opinion filed August 4, 1971, stated, in part: ³⁴⁶ “The three items of damage to the Plaintiff are in evidence. There is no evidence to the contrary sufficient to disturb the weight of the Plaintiff’s evidence. Therefore, the Court concludes the Plaintiff has established by the preponderance of evidence the following items of damage: “ (1) Excess amount of purchase price paid for acreage by reason of the error in computation, 21/2 acres (difference between 22 and 19.5 acres) at $1250.00 per acre ...................................... $3,125.00 “(2) Excess interest at 6% on Mortgage money from 15 August 1966 to 30 August 1967 ...................................... 194.93 “(3) Excess real estate tax........ 20.00 Total $3,339.93 “Judgment for the Plaintiff entered this date in the amount above stated, together with costs of this Court and costs of Appeal to the Court of Appeals.” From the judgment entered on August 4, 1971, in accordance with the trial court’s opinion, Downs filed a timely appeal, contending that there was insufficient evidence to prove an award of damages to Reighard on any theory, except for the item of $20.00 for excess real estate tax which Downs concedes was properly awarded as damages.

We do not deem it necessary to recount fully the testimony stated in some detail in our decision in Reighard v. Downs, supra; but we will state the facts bearing on the question of damages, excluding, of course, the testimony in regard to alleged loss of profits. The testimony indicates that Reighard directed that ³⁴⁷ the lots in the proposed subdivision have a minimum frontage of 125 feet and that each lot be approximately an acre in size. Although Reighard understood that land contour and the shape of a lot had to be considered, he was uncertain why he could not get more lots out of a 22 acre tract than shown on the plats prepared by Downs. Reighard had approved a plat showing 20 lots but this had been disapproved by the proper officials of Harford County.

A plat showing 19 lots was then prepared and it was on the basis of this plat that Reighard entered into the written contract to purchase with the owners of the tract. Reighard was dissatisfied with the small size of the lots which had been further diminished from 19 to 17 as shown on the plat recorded among the Land Records of Harford County. He ordered that area computations be made as a result of which he discovered the negligence in making the survey. Reighard stated: “I asked what was to be done to correct the error — that I have paid more for the property than I should have because I was informed by them that I was buying 22 acres.

And he agreed that there was a problem.” Reighard had been a real estate broker for 19 years and a real estate appraiser for 15 years. He had testified as an expert witness in regard to value of real estate in the Circuit Courts for Baltimore County and Harford County and is a qualified appraiser for the State Roads Commission. He testified that in the original listing agreement, the price was $1,500 an acre. This price would only be attractive to “a developer or someone who wanted small acreage for a homesite.” He stated that in making his offer, he computed his offer based on a price per acre and, further, that, in his opinion, the fair market value of a piece of property immediately adjacent to the tract purchased by him and located in the worst part