Gilbert v. Clay Sales, Inc.

McWilliams, J., delivered the opinion of the Court. The appellant (Mrs. Gilbert), a member of the bar of the District of Columbia, has been, and perhaps still is, an occasional investor in real estate. The venture which generated this appeal, while not a complete disaster, is hardly likely to be a happy memory. There is little, if any, dispute in respect of the relevant facts.

In the summer of 1965 Mrs. Gilbert, at the time a 55 year old resident of Montgomery County, became interested in a property in Mount Airy, a small town in Carroll County about 25 miles north of her home in Bethesda. It was a large frame house on Main Street owned by the appellee, Clay Sales, Inc., a Maryland corporation; it had been converted into three apartments. The appellee’s broker, Nick Aloi, showed it to Mrs. Gilbert and Mrs. Joyce Alibrando, her own broker, for the first time in August. They were denied access to the apartment on the first floor by the tenant, the estranged wife of Paul Clay, president and sole stockholder of the appellee.

Mrs. Clay was said to be “unusual * * * [and] peculiar.” Subsequent visits by Mrs. Gilbert and Mrs. Alibrando were equally unsuccessful as far as admission to Mrs. Clay’s apartment was concerned. However, Aloi assured them that Mrs. Clay would be out of the property before settlement. The contract of sale, executed 8 August, provided for a purchase price of $11,000, of which $8,250 was to be paid in cash at settlement, the balance to be evidenced by a note for $2,750. Settlement and the delivery of possession were scheduled for 7 September but this could ⁶⁴⁰ not be accomplished because the appellee’s charter, having been forfeited, had to be revived and also because Mrs. Clay was still in possession of the first floor apartment.

Settlement was rescheduled for 22 September. Mrs. Gilbert, Mrs. Alibrando, Paul Clay and Aloi were among those present. Mrs. Clay was still in possession and Clay was unable to say with certainty just when she would vacate the premises. After some discussion Mrs. Gilbert agreed to complete the transaction upon Clay’s representation that until his wife moved out he would pay Mrs. Gilbert $90 per month.

It seems to have been understood that she would quit the premises in a matter of weeks. Clay paid rent to Mrs. Gilbert on 10 November and again on 10 December but it is not clear that he has paid all that was due. On 14 December Mrs. Gilbert and Aloi visited the property but again they were unable to gain entrance to the first floor apartment. Mrs. Gilbert said it was “occupied at that time.” She next visited the property on 11 February, apparently responding to a telephone call from “the oil company.” She found the house vacant; the “plaster was down;” burst pipes were visible; “every radiator in the house was burst;” “puddles were on the floors;” the furnace emergency switch was in the “off” position.

Just when Mrs. Clay moved out of the first floor apartment was never established but it seems to be conceded that Mrs. Clay did not give notice either of her departure or of her intention to depart. Mrs. Gilbert said she tried to get repair estimates from different people but the only way “they would consider the work * * * [was] on a time and material basis, with no guarantee of any maximum [price] * * She tried to sell the property but it was “not until October of [19] 68” that she was able to dispose of it. The sale price, $9,600, seems to have been the best offer she was able to obtain. When the $2,750 note matured on 22 September 1966 she refused payment.

On 28 February 1967 the appellee obtained judgment by confession. After much skirmishing the judgment was stricken, whereupon Mrs. Gilbert ⁶⁴¹ filed a counterclaim against the appellee for $6,256.85. The case (both note and counterclaim) came on for trial before Joseph M. Mathias, J., and a jury, on 1 July 1969. Judge Mathias directed a verdict in favor of the appellee against Mrs. Gilbert for the amount of the note,