Ebling v. Brewer

Sloan, J., delivered the opinion of the Court. In this appeal there is one bill of exceptions, and that is to the refusal of the defendants’ (appellants’) first, fourth, and fifth prayers, to the sustaining of the plaintiff’s (appellee’s) special exceptions to the defendants’ fourth, and fifth prayers, to the granting of the plaintiff’s second, third, fourth, and fifth prayers, and to the overruling of the defendants’ special exceptions to all of the plaintiff’s granted prayers. The appellants’ first prayer is a demurrer to the evidence, and it is necessary, therefore, for us to consider all the evidence in order to pass upon its legal sufficiency to support a verdict for the plaintiff. The appellants were the owners of two adjoining tracts of land on the Severn River, containing respectively seventy-nine and one hundred acres.

In the seventy-nine acre tract, which bordered on the river, Henry Ebling had a life estate, with remainder to his children. The one hundred acre tract was owned by the children, who' had bought it at the fore-, closure of a mortgage made by their father, Henry Ebling. ²⁹² About January 1st, 1925, Henry Ebling listed the whole property with the appellee, who was engaged in the real' estate business at Annapolis, and agreed with him that, if the appellee secured a purchaser at $75,000, he would pay him a commission of five per cent. About this time the appellee had an inquiry from Edward S. Hine of Washington for water front property in Anne Arundel County, and on January 30th he wrote Hine that he had such a property. On February 10th Hine wrote the appellee that the day following he and a Mr. Patterson would go to Annapolis to investigate the tract, and the next day they visited the Ebling property.

Following this, for about two months, there were several visits and conferences between Hine, and Henry Ebling, and the appellee, sometimes with all present, at other times between Hine and Ebling, and still others between Ebling and the appellee. On March 8th a conference was held in Annapolis at the home of Mrs. Mace, a daughter of Henry Ebling, at which there were present Henry Ebling, his sons, daughters, and sons-in-law. This was the first and only meeting of the appellee with any of the owners except Henry Ebling, and whatever confirmation of Henry Ebling’s authority to represent his children there is arose out of this meeting. Messrs.

Hine. and Patterson were present, and the appellee says he introduced them to the children of Henry Ebling. The appellee also testified that “they afterwards explained to me” Mr. Bean was present, though he did not see him, and Bean testified that he was in Annapolis once, in April, 192,5, and met the appellee in the latter’s office. The appellee says, however, that he never did meet Bean until at the trial. • At the conference with the Eblings the appellee testified that “they (the Eblings) of course knew why we were there, and we immediately began to discuss the terms of sale; the price had been practically agreed upon, $75,000, and there were propositions and counter-propositions made, and we were not getting very far with them.” Mr. Hine then retired, “as he thought I could make better progress if he was ²⁹³ not present.” “Mr. Hine had put up a proposition which was not entirely agreeable to tbe heirs, so we talked it over and made a counter-proposition, the heirs, the defendants in this case, and myself.” The appellee said his commission was “agreed upon, five per cent, of the selling price,” and said that the purchase price, $75,000, had been accepted by the purchasers. “Either the next day or the day after, Mr. Ebling came into my office and I gave him an outline of the terms, which Mr. Ebling already knew, and Mr. Ebling informed me he wanted to see Mr. Randall about drawing the contract.” “It was up to the point where negotiations were closed and I offered to draw the form of contract. Mr. Ebling said he would not sign a contract unless he consulted with Mr. Randall about it.” The terms, as outlined in a memorandum filed by the appellee with his testimony, showed a cash payment of $500 to he made on the signing of the contract, $9,500 to be paid May 1st, 1925, two payments of $5,000 each on June 1st and July 1st, 1925, three payments of $10,000 each on September 1st, 1925, January 1st, 1926, and April 1st, 1926, and $25,000 on June 1st, 1926.

On March 9th, the day following the family gathering, Hine wrote the appellee: “We have carefully considered the details of the proposition on the Ebling property and are prepared to make a counter proposition which follows very nearly the offer of terms made us yesterday.” He then outlined his terms, and said: “You will notice this offer is substantially the same as the proposition they submitted to me yesterday, except that 1 have eliminated the payment that they asked on May 1st of $9,500. This is my final offer, Mr. Brewer, and if they will not accept it, I shall have to close up on this other property.” On March 17th, Hine again wrote the appellee, regarding a defect in the title to the seventy-nine acre parcel, which ²⁹⁴ to him seemed no obstacle, and, suggesting a meeting of the Eblings, said: “If you get them together, try and get them signed up on something. Make the payment $9,500 on June 1st.” On March 18th the appellee wrote Hine: “There are so many contingencies that might arise that I personally feel that although Mr. Randall has informed Ebling that a title can be given, that unless you have some other assurance I would not advise the purchase of the property.” On March 19th, Hine again wrote the appellee: “The objections to the title, while they might prove very serious to the average developer, is in my opinion not an insurmountable one.” Then, after saying he thought he could get his New York people to go through with it, and outlining his proposed plan of payments, he said: “I think you should get the family together and present the facts to them to sign a preliminary agreement along these lines.” On March 22nd, Mrs. Henry Ebling died, and on March 24th the appellee wrote Hine that he “hesitated to interview Mr. Ebling further in regard to the property.” The next day Hine write the appellee that: “It should be the psychological moment to reach a satisfactory deal. I am leaving the entire matter in your hands, however, as I know you are as anxious as we are to consummate a deal.” The next day, March 26th, the appellee wrote Hine: “I had a talk with.

Ebling this afternoon and from what he tells me I think the children are in a more receptive mood. So in this connection it would ²⁹⁵ be well for you to see Ebling at an early date and arrange with him for a time when he and the children, together with Mr. Randall, can meet and have the terms of sale, as well as the distribution of the proceeds in the event of a sale, stated, which will be satisfactory to Ebling and the children.” On April 1st Hine wrote the appellee: “I saw Mr. Ebling yesterday. * * * I was very much in hopes of getting things in shape today, hut I cannot see that I am gaining anything. * * * I have acceded to practically every request they have made and I have about reached the limit. Erankly, Mr. Brewer, I would not have gone as far as I have had the property been less suitable to our purposes. * * * The thing for you to do, it would seem to me, is to arrange a final conference between Ebling, Randall, and Green and ourselves, in tbe immediate future, and try to get something concrete that the Eblings will stick to.” On April 3rd, Hine again wrote the appellee as follows: “My dear Mr. Brewer: Received your letter this morning. It would seem to us that your plan is the best one, but that it would be the best course for you to get Ebling and Randall lined up for an appointment with Green.

I doubt if the old man would take the initiative in the matter. Any step we may take in this direction at the present time would only give the impression that we were very anxious for the property. This may to a certain extent be true, but I have about reached the point that I have gone as far as I can. go and a little farther. “It is impossible for Mr. Rommel and myself to disclose the real people back of us, but you can assure Mr. Ebling if you wish that they are eminently responsible and he will recognize them when he learns who they are. But I certainly am not going to them every week with a different proposition.

This for your cue to Ebling. If you can arrange a meeting ²⁹⁶ with Randall and Ebling-and Green yourself I think you will get somewhere. Of course, I recognize how Ebling looks at it in reference to the title, but I am very sure that should he secure another buyer he would he estopped by this situation and afterward I would not dare take hold of the matter, for once the title is questioned by some one else and turned, down I could not afford to take up with something which was generally known to he faulty, for this situation would he enlarged and become generally known and that would stop my sales. “We are leaving the entire matter in your hands, Mr. Brewer, to adjust and bring to a focus. “Sincerely yours, “E. S. Hine.” A few days later the appellee called on Ebling who, he said, “did not seem very communicative, said ho was not feeling well.” “He told me he was coming to town Wednesday and would see Mr. Randall.” This was the last time the appellee saw any one or did anything with the Ebling property; from that time on ho was “awaiting' developments,” “and the preparation of the contract was left up to Mr. Ebling.” In answer to the question, “Did be ever produce a contract himself ?” he said, “He did not, not to me.” Asked, “Was there ever any revocation of your agency at any time?” he said, “There was not.” For a year or more the appellee was silent as to the whole proposition and showed no further interest or activity until he heard the property had been sold to Severn Shores, Inc., for $88,000. The evidence is that during the month of April, 1925, Hine abandoned the negotiations for the Ebling tract, and he and Bean bought a tract on the Patuxent River, and developed that during the summer of 1925.

Henry Ebling testified that after his wife’s death Mr. Brewer saw him on the property, which was the second time he was ever on it, and he then told him that owing to his wife’s death all negotiations were off, and that he never called on Mr. Brewer again regarding it, nor had Mr. Hine ever ²⁹⁷ seen him (Ebling) about it afterwards. Mrs. Mace and Henry Ebling subsequently had business with Mr. Brewer in the purchase of another property near Annapolis,