Frederick Motor Sales, Inc. v. Baltimore & Ohio Railroad

Collins, J., delivered the opinion of the Court. This is an appeal by Frederick Motor Sales, Inc., (Frederick Motors), appellant, from a judgment in ejectment entered in favor of the appellee, The Baltimore and Ohio Railroad Company, (B & O), against the appellant for possession of the premises in question and damages for its detention. The appellee, on November 1, 1948, entered into what was designated as a “License and Agreement” with the appellant by which it leased certain premises in Baltimore for a rental of $75.00 per month, payable monthly in advance, which appellant agreed to pay. The License and Agreement, among other things, contained the following clause: “In the event of a breach of any of the covenants, terms and conditions of this license by Second Party the Railroad shall have the right to revoke said license immediately.” On June 6, 1950, the appellee by registered mail notified the appellant that “on account ⁴⁹³ of non-payment of rental in accordance with terms of said agreement”, it revoked and cancelled the agreement effective five days after receipt of the notice and required appellant to vacate said property prior to that date.

At that time appellant was four months in arrears in rent for the months of March, April, May and June, 1950. Appellant, not having removed from the premises, B & 0, on August 17, 1950, filed summary ejectment proceeding in the People’s Court of Baltimore for nonpayment of rent under the provisions of Article 53, Sections 28, 29 and 30, 1939 and 1951 Codes. At the hearing of that case in the People’s Court, Frederick Motors tendered the four months rent in arrears. B & O refused to accept the tender and nonprossed its suit.

On October 16, 1950, B & 0 filed in the Superior Court of Baltimore City a suit in ejectment against the appellant for possession of the premises and damages for its detention because of non-payment of rent. Accompanying the declaration was a motion for summary judgment and an affidavit setting out the facts. To that declaration appellant on June 7, 1951, filed the general issue plea and the following pleas based on equitable grounds: “2. For defense on equitabe grounds, the Defendant alleges that the plaintiff prior to the institution of this action through one of its employees, had assured the Defendant that no action would be taken because of the failure of the Defendant to pay his rent promptly and when due, and Defendant relied on the good faith of the Plaintiff. 3.

For defense on equitable grounds, the Defendant alleges that the Plaintiff filed an action in ejectment in the Peoples’ Court of Baltimore City, Case No. B-360166, and at the time of the hearing of said action, the Defendant tendered payment of the rent to the Plaintiff in accordance with Article 53, Sections 28 and 29 of the Maryland Code, and the Plaintiff refused said tender.” A demurrer was sustained to the third plea and interrogatories were filed by the plaintiff to the second plea asking the date; place; name of employees of the plaintiff referred to; if names of em ⁴⁹⁴ ployees were not known a description of said employees; whether the assurance alleged in defendant’s second plea was oral or in writing; if oral, “state as accurately as possible exact words alleged to have been spoken by the plaintiff’s said employee.” An answer was filed to the interrogatories on July 25, 1951, stating date unknown ; place of business, Charles and Baltimore .Streets and also over the telephone; name of employees unknown, but employed in the rental collection .department of B & 0 and to the best of defendant’s knowledge the name of the employee was either Callahan or Gallagher ; assurance was oral; defendant not certain of the exact words, but as accurately as possible the following words were used “Pay your back rent up as well as you possibly can, and we’ll go along with you, and no action will be taken to remove you from the premises.” On November 9, 1951, appellee’s motion for summary judgment was denied and issues limited to the second plea and further limited to answers filed to the interrogatories. The case proceeded to trial on October 21, 1952, and on instructions from the trial court on October 22, 1952, a judgment was entered for the appellee. From that judgment appellant appeals. Appellant contends that the lower court erred in striking out its third plea and in limiting the second plea to the answers given by it in the interrogatories.

It specifically contends that the trial court erred in not admitting in evidence the following testimony, set out in this paragraph, offered by the appellant. Mr. Henry Oberfeld, President of appellant corporation, would testify that Mr. Kennedy, real estate agent for appellee, at the time of