Gerlach v. Warren

PattisoN, J., delivered the opinion of the Court. The appellee, Carroll E. Warren, was on the first day of -June, 1918, a tenant of the leasehold premises known as 5002 Palmer Avenue, in the City of Baltimore, and was then, and had been for several years prior thereto-, paying as ■rent therefor to its owner, the appellant, Joseph F. Gerlach, the sum of fifteen dollars a month. !On the date above mentioned Warren purchased the property so occupied by him from Gerlach at and for one thousand dollars, of which sum one hundred dollars was paid in cash and the balance ($900) was to be paid in monthly installments of twenty dollars, commencing with the first day of June, 1918. From the payments, so to be made, were to be deducted the interest on the purchase money, and a sufficient amount to cover taxes, ground rent, water rent and insurance on the property from Ihe date of the agreement-; and when the amounts so paid, after the deductions aforesaid, amounted to nine hundred ■dollars, the balance of the purchase money, the property was to be assigned or conveyed to- the appellee- by the appellant. There was to be an adjustment every twelve months-, at which time Gerlach w'as to deduct from the aggregate amount- paid •during the preceding twelve months- the interest on the ⁶⁷⁰ amount of purchase money owing at the beginning of saicl term, as well as all taxes, ground rent, etc., paid by him. during said time, ,and the balance was to be credited on the purchase mloney.

And if Warren, for two consecutive-months-, failed to pay the monthly installments as the same-became due and payable, then the agreement with all its-provisions, and covenants^ was to- be null and void at the option o-f Gerlach, and all money paid by Warren thereafter,, if he were permitted to remain in possession -of the property, was to- be considered as rent, such rent however not to- exceed twenty dollars per month. The abo-ve provisions- were- contained in a written contract,, executed in duplicate-, and in the hand writiug. of Gerlaoh. The duplicates, when written by Gerlaoh, were- carried by him to- the home of Warren, where they were compared, Ger-laeh reading one- of them, while Warren and his- wife-, with the other, followed him in his reading. After the comparison-was so made the contract, as we have said, was- executed in-duplicate, and either on that day, or at a later time, one of the duplicates was given by Gerlaoh to Warren and the other was- retained by him, and thereafter Warren made his> monthly payments upon the purchase money in accordance-with the terms of the agreement.

In November, 1919, when Warren was to meet Gerlaoh for an adjustment, as provided by the agreement, the June meeting of 1919 having been deferred to such time at the request' of Gerlach, Warren, to get hisi duplicate, went to the- drawer-of -the bureau where, only a few months before, be had placed it, but was unable to find it. Whereupon he at once told Ger-laeh o-f its loss, and called upon him for a copy of the duplicate in bis possession, but- it was not until March, 1920, after repeated demands had been made upon him, that he furnished, at the request of Warren’s attorneys-, what purported to- be a copy of such duplicate. Until told by Warren that he had lost his duplicate, Ger-lach had regularly called at Warren’s home for t-he payment ⁶⁷¹ •bf the monthly installments, but thereafter Gerlaoh ceased to come for them, and Warren carried the money to Gerlach. In February, 1920, Gerlaoh told him he would not receive from him any more of the monthly payments, but that he would sell the property to him for one thousand, two hun-•drecl and fifty dollars.

Warren having lost his duplicate of the contract and not knowing what might be the effect or result of its loss in an effort to enforce it, considered the proposition to- buy the property at the new price named by Gerlach, and, by appointment, met Gerlach at the court house in Baltimore City, where they discussed the purchase of the property, and it was suggested that the execution of the duplicate held by Gerlach should be acknowledged by them, and that such duplicate, with the acknowledgment appended thereto, should be placed upon record. A notary w!as procured, who wrote an acknowledgment upon the duplicate, hut before acknowledging it, Warren asked to be permitted to read the duplicate, and upon reading it, he observed, at the end of it, .a, clause which he said was not in either of the duplicates at the time of their execution, and of which he, until then, had no knowledge whatever. 'The following is the clause mentioned: “It is agreed and understood between tbe parties hereto that the party of the first part shall have the right to cancel this contract any time providing he refunds one hundred (100) dollars and all money paid over expenses and interest.” After discovering that the duplicate contained the above clause Warren refused to acknowledge its execution, and, as shown by the original duplicate produced at the argument, lines were drawn through the acknowledgment so written by the notary. It was after the meeting above referred to at the court house that Gerlach furnished the copy of the duplicate held by him; and although he had said on February, 1920, that he would not thereafter receive from Warren any more of the monthly payments, he continued to receive them until ⁶⁷² July, 1920, the last one received by him being on the 21sfr day of July of that year, and in the receipt given by him for that payment it is stated that it was “on account, purchase,’5' which was the language used in many of the preceding receipts for such monthly payments. After the last named date Warren continued to send the monthly installments to Gerlach until June 6th, 1923, when, he received a letter from Gerlaoh’s attorney, saying: “Under your agreement with Joseph F. Gerlach dated June 1, 1918, Mr. Gerlach is privileged to cancel that contract and repossess the property No. 6002 Palmer Avenue at any time upon repayment to you of the sum of one hundred dollars, plus the net difference between the sums paid by you in installments, and the expenses and interest on the principal of one thousand dollars. “Mr. Gerlach now desires to repossess this property, and I wish you would arrange an appointment, so that we can strike a balance, and thus determine exactly how much is due. “Under the circumstances, no more payments of .twenty dollars per month will be accepted by Mr. Gerlach.” As there was no adjustment of the matter as suggested by the above letter, and as Warren remained in possession of’ the property, Gerlach, on the 25th day of June, 1920, brought an action of ejectment in the Baltimore City Court against Warren to eject him from the property. ■It was then that Warren applied to the Circuit Court off Baltimore City for an injunction restraining Gerlach from, the further prosecution of his suit in ejectment.

The court, after hearing testimony upon the bill and answer filed, granted the injunction as prayed. From that decree Gerlach has appealed to this Court. The only question in this case is, Bid the contract when-executed contain the provision above set out giving to1 Ger-lach the right to cancel the contract upon the terms therein, stated, notwithstanding Warren should fully comply with. ⁶⁷³ the other provisions of the contract therein previously contained ? Warren testified that in June, 1918, Gerlach came to his home — 5002 Palmer Avenue* — and said to him that he, Warren, “would either have* to buy or move from the property” he then occupied as a tenant of Gerlach, as “he was going to sell.” “We talked it over and he, Gerlach, said ho would draw up> an agreement and bring it down and. we could study over it, and he brought the agreement down some time after that”; that when he brought it to hisi home* “he, Ger-lach, read over one copy and we (he and his wife), followed on with the other one,” .and he* and his wife a. number of times, thereafter, read the duplicate that was left with him; That the last clause in it was that the party of the second part (Warren) had the right to alter and repair the property, and, as he remembered, about three inches below that Was the name of Gerlach, and beneath Gerlach’s name was his own name; and that the clause at the end of the contract, giving Gerlach the right to cancel it was not in the contract ,at such time.

He also testified that shortly after his duplicate or copy was left in