Globe Home Improvement Co., Inc. v. Brothers

⁷⁴ Hammond, J., delivered the opinion of the Court. A bill of complaint was brought to compel the successful bidder at an auction to perform his contract to buy a new bungalow. The defense was that the ground rent said to be on the property did not exist but was to be created, and the term of the proposed lease was not stated. The chancellor dismissed the bill and ordered the return to the buyer, Paul Brothers, of the deposit which he had made at the sale.

The seller, Globe Home Improvement Co., Inc., has appealed. The published advertisement of sale described the property as a very desirable new bungalow to be sold on the premises, 3903 Duvall Ave., at the risk and expense of a former purchaser, and then said this: “G. R. $120.00. . . Taxes, interest, G. R. and all other adjustments to be adjusted as to date of sale.” The advertisement was signed by the attorney for the seller and gave the name of the auctioneer. Brothers had been advised of the sale by the attorney who represented Globe and who had also represented him at times.

At the sale, he purchased the property for $15,500.00 and was permitted to make a deposit of $1,000.00, instead of the $1,500.00 required by the terms of the advertisement. The auctioneer gave Brothers a receipt, on which was noted that $1,000.00 has been received: “. . . as deposit on purchase of property 3903 Duvall Ave., for the price of $15,500. Subject to an annual ground rent of $120, at public auction on May 19, 1952. By order of............

(Auctioneer) ALEX COOPER”. A copy of the advertisement was attached to this receipt and the two writings together constitute the contract relied on by Globe. About a week after the auction, Brothers was asked by Globe’s attorney to sign the papers necessary to create the $120.00 ground rent. He says that this was the first time he knew that the ground rent did not exist and was to be created.

He refused to go through with his purchase because the ground rent was to be newly created. ⁷⁵ Although it is not stressed in the briefs, the contention was made at the argument that Globe cannot prevail under the decision in London v. Riebel, 189 Md. 876 . There it was held that an advertisement of an auction sale and an auctioneer’s receipt together constituted the memorandum of sale and, since neither disclosed the name of the seller, the Statute of Frauds was not gratified and parol evidence was not admissible to show the owner. Globe’s reply is that the facts here are not those of London v. Riebel, but are equivalent to those in Scholtz v. Philbin, 157 Md. 196 , where it was held sufficient under the Statute of Frauds that the name of the agent of the owner appeared. We find it unnecessary to pass on this question since we think the decision here turns on another point.

Globe recognizes the rule that a contract of sale of real estate must be clear, definite, complete and certain if a court of equity is to specifically enforce it. It says that the writings in the instant case meet these standards, even though the term of the proposed lease is not specified, because Brothers knew that the ground rent was to be created, and as a real estate man and insurance broker, must be presumed to know that ground rents commonly are for a term of ninety-nine years. Globe’s attorney, who had interested the appellee in the purchase of the property, testified that Brothers had been told that the ground rent was to be created at the time of settlement. Brothers denied flatly that he had ever been so told, and reiterated that his first knowledge that the rent was not in existence was when he was asked to sign the papers necessary to create it.

The chancellor gave no opinion so that there is nothing to indicate how, if at all, he resolved this conflict in the testimony. It is not necessary to decide whether, had the facts justified it, oral testimony properly could have been admitted: “. . . not to vary the contract nor to alter it in any way, nor to add anything to it.” but to explain something otherwise doubtful which could be made plain by proof of usage or custom, as suggested ⁷⁶ in Applestein v. Royal Realty Corp., 181 Md. 171 ; or, whether, as seems far more likely, oral testimony would have been inadmissible to furnish the missing detail of the proposed lease, under the holdings of Smith v. Biddle, 188 Md. 315, 320 ; Trotter v. Lewis, 185 Md. 528, 535 ; and Vary et ux. v. Parkwood Homes, Inc., 199 Md. 411 . This is because the evidence which was offered does not cure