Gordon v. Gross

Stookbridge, J., delivered the opinion of the Court. This suit was brought to compel the specific performance of a contract for the conveyance of the premises known as Ho. 922 Druid Hill Avenue, in Baltimore City. Before dealing with the facts of the case it is well to- get clearly in mind the rules which govern courts in the decreeing of specific performance : ⁴⁹¹ “It is a well recognized principle that the granting of specific performance lies in the sound discretion of the court ‘to be exercised upon consideration of all the circumstances of each particular case. The court will be controlled, of course, in the exercise of its discretion, by the established doctrines and settled principles upon the subject; but it does not follow, as matter of course, that because the legal obligation under the contract may be perfect, therefore the equitable power of the court will be exercised to compel or effect specific execution.

In every case, the question is, whether the exercise of the power is called for to subserve the ends of justice; and unless the court is satisfied that the application to it, for this extraordinary assistance, is fair, just and reasonable, in every respect, it will refuse to interfere, and leave the party to other remedies for redress.’ “Again — ‘The principles regulating the exercise by courts of equity of their power to compel the specific performance of contracts are well settled. Specific performance is not a matter of right in the litigant but it is one of sound judicial discretion controlled by established principles of equity and it will be granted or withheld by the court upon a consideration of all the circumstances of each particular case.’ ” Teschner v. Falkenwalde, 135 Md. 114, 119, 120 . The rule here enunciated has been laid down in a large number of other cases. Rickard v. Neff, 130 Md. 94 ; Diffenderfer v. Knoche, 118 Md. 189 ; Somerville v. Coppage, 101 Md. 519 Henneke v. Cooke, 135 Md. 417 ; and the same rule, with but one slight variation of verbiage, will be found in fitiller’s Equity, sec. 656, and 25 R. C. L. pp. 203, 223.

The contract in question, and for the enforcement of which the bill was filed, purports to have been executed on January 3rd, 1921, and was for the conveyance from Mrs. Rebecca Gordon to Harry B. Gross of the property No. 922 Druid Hill Avenue, for a recited consideration of $2,375. In all oases of this nature, the burden of proof is upon the party seeking to have the enforcement decreed. The testimony in ⁴⁹² the case is absolutely contradictory the one side to the other. According to the appellee’s version, the written contract produced, for the conveyance of the property for the consideration above recited, was executed on the evening of January 3rd, 1921, in the house where Mrs. Gordon was then living, 132 S. Eden Street, Baltimore.

According to the appellee’s witnesses, Mrs. Gordon made her mark on the contract in the form in which it was offered in evidence, while Mrs. Gordon, with equal positiveness, testifies that she did not touch the pen, or have any part whatever in the making of the cross mark which purports to he hers. The contract recites a payment of one hundred dollars in cash to hind the bargain, and the appellee’s witnesses testify that that amount was paid to Mrs. Gordon and that she gave fifty dollars of it to a real estate broker who wa-s present at the time and had written up- the contract, while Mrs. Gordon testifies that she received but fifty dollars, and ber friend, Mrs. Smulowitz, who was present, says that but fifty dollars was given to Mrs. Gordon, and that the real estate brokers took the other fifty dollars and divided it among themselves. The appellee’s evidence is to the effect, that Mrs. Gordon was desirous of selling her property on Druid Hill Avenue, and had placed it in the hands of a Mr. Koren, a real estate broker, for that purpose, anj that the price which she placed upon the property was-$2,500. Mrs. Gordon admits having entrusted the sale of the property to Mr. Koren, but at the figure of $3,500.

On the evening when the contract purports to have been signed, there appeared at the South Eden Street residence of Mrs. Gordon, Mr. Koren, Mr. Lieberman and Mr.