Grauel v. Rohe

Grason, J., delivered the opinion of the Court. Peter L. Rohe (appellee) and his wife own a farm in Baltimore County, as tenants by the entireties. It is situated at Baldwin, consists of one hundred and sixty acres of land, improved by a dwelling house, and outbuildings, equipped with stock, machinery, and farming implements. The appellee operated the farm.

He, his wife and son lived on the place and the son, at times, assisted' ¹²³ in its operation. The son is married and a law student. Grauel (appellant) conducts a store and lives in Baltimore County. Young Rohe’s wife worked there, and Rohe, Jr., worked for appellant in the evenings.

Appellant became interested in the farm, and went to see it. Appellee showed him the place and its lines, and he concluded to buy it, together with all the stock and farm equipment. In December, 1943, appellant gave two checks to appellee, each for the sum of $500. He took a receipt for these checks, which was written out and signed in the name of Peter L. Rohe by his son.

The testimony shows that the purchase price for the farm was $20,000 and one of the checks was applied to that account. It also shows that the personalty was sold for $11,412.25 and the other $500 check was applied to this item. We think this agreement possessed the elements of an entire contract. It included the sale of both the farm and personalty, and not a separate and distinct sale of the farm or personalty.

Appellee agreed to farm the place for appellant. He testified he was to remain on the farm a year. For three weeks he rendered an account to appellant, showing the receipts and expenses in the operation of the farm. The sale of the farm was not consummated and this suit was brought by the appellant to recover the down payments of $500 on the real estate and $500 on the personal property.

The narr contains two of the common counts: (1) For money received by defendant for use of the plaintiff, (2) and for money found to be due from the defendant to the plaintiff on an account stated between them. The account filed with the narr is: “For money delivered to Peter L. Rohe by Harry Grauel on or about the 10th day of December, 1943, the return of which was demanded by Harry Grauel on or before the 29th day of February, 1944.” The response to the demand for particulars of the plaintiff’s claim is: “the money was delivered to Peter L. Rohe in connection with the proposed purchase of real estate and personal property”; and “the return of the money was demanded because no final agreement was reached.” ¹²⁴ The case went to trial on the narr as particularized under the general issue plea. Trial was before the court, without a jury, a verdict entered in favor of the defendant, and from a judgment entered thereon for the defendant, with costs, the case comes here on appeal. The points posed by the appellant are: 1.

That the record does not show an enforceable agreement for the purchase of the property mentioned in the evidence! 2. That any agreement for the purchase and sale of the property mentioned in the record was mutually abandoned by the parties to this case. Appellant contends that there was no such memorandum within the requirements of the statute of frauds and hence the agreement relied on is unenforceable. It is also urged there is no evidence to show part performance sufficient to take “the alleged agreement out of the operation of the statute of frauds.” In the view we take of the case, it is unnecessary that we go into a discussion of those questions.

It is not unlawful to make a verbal contract for the sale of land, although it is quite true that such a contract cannot be proved by oral testimony and must be evidenced by a written contract as contemplated by the statute of frauds if demanded by the seller. That act is primarily evidentiary. Its purpose is to prevent fraud, and the provisions of the statute, accordingly, limit its use to that purpose. It cannot be used to perpetrate a fraud.

If appellee had relied on the statute, appellant would have been relieved from all obligations under the agreement for the purchase of the farm and personal property. The evidence clearly shows that appellee waived the statute, and had no intention whatever of interposing it in the matter, and appellant, under such circumstances, cannot call up the statute in order to enable him to recover by his own breach of his agreement. “According to the great weight of authority, the vendee, under an agreement for the sale and purchase of land which, does not satisfy the statute of frauds, cannot recover back payments upon the purchase price if the vendor has not repudiated the contract but is ready, will ¹²⁵ ing, and able to perform in accordance therewith, even though the contract is not enforceable against the vendee either at law or in equity. Under this rule, one who has paid money in consideration of an oral contract cannot rescind such contract and recover the money paid unless the other party insists upon the statute and refuses to perform it on his part.” 49 Am. Jur.

Statute of Frauds 870, Sec. 564. 37 C. J. S., Frauds, Statute of, Sec. 256, p. 779. “It does not follow, however, that to refuse plaintiff a recovery will be to enforce the contract in violation of the statute. The defendant is not in default; he tendered his deed properly executed, was ready and willing to perform, but was prevented from doing so by plaintiff’s refusal to pay the full purchase price and accept the deed. The plaintiff is in the position of a vendee seeking to recover back purchase money paid on an unenforceable oral contract, which he alone is unwilling to carry out because he wishes to rescind it.” Roberts v. Roesch, 306 Pa. 435 , 159 A. 870, 871 . “The agreement was not illegal. There was no objection in law to complete performance by both parties.

Money paid in performance in part even of an oral contract for the purchase of land cannot be recovered if the vendor is willing to convey on the performance of the conditions by plaintiff.” Keystone Hardware Corporation v. Tague, 246 N. Y. 79 , 158 N. E. 27, 28 . . With these authorities we are in full accord. Appellant cites Colonial Park Estates v. Massart, 112 Md. 648 , 77 A. 275 , to sustain his contention that no final agreement was reached in this case. There, the purchaser was shown by the agent of the seller a printed form of contract, and a contract under the terms therein contained was to be furnished him for execution.

The next morning a contract was presented to the purchaser, containing “several very material provisions imposing additional burdens and restrictions upon the lots”. Thompson v. Killheffer, 99 N. J. Law 439, 125 A. 11, 12 , is also cited by appellant. The purchaser in that case ¹²⁶ paid to a real estate agent $500 to apply on the purchase price of a farm, including farming tools and furniture. The price was $15,000, one-half to be paid in cash and one-half by way of mortgage.

A receipt was given by the real estate agent to the prospective purchaser. The day after, the purchaser advised that he could not take the farm. It was held in that case “that a real estate agent employed to sell has no authority, as such agent, by virtue of his employment, to enter into a binding contract for the sale.” These cases are not in point. In this case the contract was made directly between appellant and the appellee who owned the property together, with his wife, as tenants by the entireties.

There is nothing in the evidence to show that either party intended to enter into a more formal written contract. Appellee was ready, willing, and able to perform his agreement. It is suggested that" the agreement between the parties cannot be enforced because the property is held by appellee and his wife as tenants by the entireties. A husband can act as the agent of his wife in such transactions. “If he acts with her authority, either expressly or impliedly conferred upon him, his acts are binding upon her; and ‘she may also render his unauthorized acts as her agent binding on her. by subsequent ratification which under the principles of agency is equivalent to original authority.’ ” Kvedera v. Mondravitzky, 145 Md. 260, 264 , 125 A. 591, 593 .

In Safe Deposit & Trust Co. v. Strauff, 171 Md. 305, 316 , 189 A. 195, 199 , the Court quoted with approval 21 Ruling Case Law, page 858, paragraph 36, which is, in part, as follows: “As against one who has assumed to act as the agent of another the presumption is that he had authority to do the acts in question.” In this case the wife of appellee was not called by him as a witness. She did not repudiate the agreement, but was apparently entirely in accord with her husband in retaining the one thousand dollar part payment for the ¹²⁷ farm and the personalty. She was therefore in agreement with her husband in his endeavor to sell both the farm and the personalty to appellant, and under the facts in this case she was bound by her husband’s action in the matter. The pivotal question in the case is: Was the agreement mutually rescinded by the parties?

If one of the parties to a contract refuses to perform it “ ‘the other party thereupon has a choice of remedies. He may stand upon his contract, refusing assent to his adversary’s attempt to rescind it, and sue for a breach, or in a proper case, for a specific performance, or he may assent to its abandonment, and so effect a dissolution of the contract by the mutual and concurring assent of both parties. In that event he is simply restored to his original position, and can neither sue for a breach or compel a specific performance, because the contract itself has been dissolved.’ * * * In Gunby v. Sluter, 44 Md. 237, 250 , it was held that a mutual recission of a contract for the sale of land entitled the vendees to the return of the purchase money paid, ‘and no express promise was necessary.’ * * * In Restatement, Contracts, Sec. 222, it is said that a contract within the statute of frauds may be orally rescinded ‘unless the prior contract is enforceable and the contract to rescind involves the retransfer of some subject-matter which is