Hampton Park Corp. v. T. D. Burgess Co.

Levine, J., delivered the opinion of the Court. This appeal stems from a case tried without a jury in the Circuit Court for Prince George’s County (Bowie, J.), which resulted in a judgment in the total sum of $213,159.10, including interest, against appellant, Hampton Park Corporation (Hampton Park). The judgment was recovered by appellee, T. D. Burgess Company, Inc. (Burgess), which had sued Hampton Park for a real estate broker’s commission alleged to have been earned for selling a parcel of land owned by Hampton Park to the United States Government. With limited exceptions, which we shall note later, the material testimony in this case is undisputed.

Being desirous of acquiring a large parcel of land in Prince George’s County for the purpose of building a bulk mail facility, the Post Office Department, as it was then known, entered into a contract on June 2, 1969, with a New York firm known as Drake Sheahan/Stewart Dougall, Inc. (Drake Sheahan). The latter is a marketing and physical distribution consultant. In addition to conducting a study of “present and projected mail flow in the Washington, D. C. area” for the purpose of determining “if there is a need for major new facilities in the area,” Drake Sheahan was to chart the patterns of mail flow, evaluate plans for future facilities, develop specifications for recommended facilities and review the effect of transportation patterns upon the volume of mail handled in the Washington area. Also it was to undertake the following: “5.

The development of the criteria for selecting sites. The contractor [Drake Sheahan] shall provide a description of the factors to be considered. These shall include, but not be limited to, the needs of transportation, site size, personnel access, mail flows, service, land cost, prevailing ²⁷¹ wage rates, labor availability and community characteristics. “6. Recommended sites in priority of their desirability.

The final selection of a site, or sites, if they are required, will require negotiations by postal officials. Therefore, the contractor, working with local and regional postal officials, shall provide a priority listing of potentially available sites to form the basis for negotiation.” (emphasis added). In pursuance of the part of the study related to the proposed bulk mail facility, Drake Sheahan was referred to Burgess. A representative of the former, one A. L. Lowe (Lowe), called on Burgess in late October 1969 for the purpose of visiting prospective sites.

Mr. T. D. Burgess, president of the company, delegated the assignment to Frank Principe, vice president, and his son, John Principe, a salesman in the firm. Burgess thereupon proceeded to obtain from Hampton Park, which was then known as The Jean Corporation, a listing agreement which reads as follows: “As owners and developers of an industrial complex at the intersection of Central Avenue and the Capital Beltway, we authorize your firm to offer for sale, subject to prior sale, properties contained within this industrial complex. We agree to pay you a commission of six per cent (6%) of the total sales price for any properties sold by you. “It is our understanding you are now offering to the U.S. Post Office a parcel containing approximately 40 acres. We agree, in the event the above-said firm elects to purchase in said industrial complex, as a result of your efforts to pay you your full commission amounting to six per cent (6%) of the total sales price irregardless [sic] of any claims by others.” (emphasis added).

In early November, the Principes met with Lowe, Burder Smith Athey (Athey) of the Washington, D. C. Post Office, ²⁷² and J. Kevin Malloy (Malloy), vice president and secretary of Hampton Park. It is undisputed that this was the first occasion on which Malloy had met anyone from the Post Office Department in connection with the purchase of any land owned by Hampton Park; and it is equally undisputed that this was the first time anyone from Drake Sheahan had ever met Malloy. On this occasion, Lowe expressed an interest in parcels of approximately 40 acres in size, with industrial zoning, close to the Capital Beltway (Interstate 495) between Pennsylvania Avenue and Route 50. Malloy then indicated that Hampton Park’s 350-acre industrial park complex — located within the area designated by Lowe — included at least one tract which met the requirements of the Post Office Department.

The Hampton Park property is located at the Beltway and Central Avenue in Prince George’s County. Subsequently, a description of the Hampton Park site and its favorable characteristics — prepared by Malloy with some assistance from John Principe — was mailed to Drake Sheahan. In the ensuing months, the Principes furnished Lowe with additional data and documents pertaining to the Hampton Park property. On at least one other occasion, John Principe revisited the Hampton Park site with Lowe and Athey.

In addition, he showed them three other parcels, none owned by Hampton Park, all of which were located within the preferred area. Throughout this period, the Principes remained in communication with Malloy. On March 6, 1970, Drake Sheahan submitted its report entitled “Proposed Bulk Mail Handling Plant” to the Post Office Department. As the contract had contemplated, the report dealt with a number of subjects: The Washington area mail volume; mail flow; space requirements; available site and property costs; mechanization and cancellation costs; and a variety of economic analyses projections.

On May 1, 1970, one Earl S. Godfrey (Godfrey), employed in the real estate division of the Post Office Bureau of Facilities, was given the assignment of investigating property sites for the proposed bulk mail facility. He “was ²⁷³ given a preferred area within which to survey, and criteria for the sites as far as size and so on was concerned.” This was furnished to him in the form of a three-page extract from the Drake Sheahan study. It may be described as sketchy and merely states: “The weighted center of gravity of the Washington, D. C. Bulk Mail Facility Service Area is approximately four miles southeast of Alexandria. This area, however, consists of national parks and memorials and cannot be considered as a site for the BMF [bulk mail facility]. “The recommended area for the Washington, D. C. BMF is the Beltway (1-495) between Route 50 and Marlboro Pike (Pennsylvania Avenue).

This area provides ready access to Baltimore, Richmond and Norfolk, and southwest Virginia via the Beltway. Washington, D. C. parcel post delivery operations are also acceptable from this area. “This area also has good access to existing piggyback ramp yards in Washington. It may be possible to have additional pig facilities at the Penn Central Yards at Route 50 and the Beltway. “Five available sites which have been developed in the recommended area are listed below in 'priority order. A minimum of 50 acres is recommended for the site.

If other properties are developed they should be considered along with the attached list.” (emphasis added). Attached to this is a superficial map of the metropolitan Washington area with the five locations indicated thereon, and listed at the bottom in this manner: ²⁷⁴ The same list appears on the third page with the available acreage of each location and the land cost per acre. ²⁷³ “1. Forestville Road Marlboro Pike #495 Beltway “2. Westphalia Road Penn.

Ave. #495 Beltway “3. Pa. Ave. Industrial (emphasis added).

Park” 4. Central Ave. #495 Beltway 5. Route #50 #495 Beltway ²⁷⁴ When Godfrey received his assignment on May 1,1970, he was directed to submit his recommendations for a site by May 15. He therefore immediately recruited a five-man team of real estate specialists from the Washington Regional Office of the Post Office Department.

He instructed those personnel to promptly survey the area designated in the Drake Sheahan extract by obtaining zoning maps, traffic counts, assessment maps, zoning regulations, building codes; and to consult various public agencies. They were also to check recent land sales in the area. Approximately three days after receiving his assignment, Godfrey, in the company of a member of his team, made an unannounced visit to Malloy’s office. Upon entering, as Malloy describes it, Godfrey proclaimed, “ T want to inform you I am here as a result of certain studies and surveys I am doing with respect to locating a site for the Post Office Department for [a] bulk mail facility.’ ” (emphasis added).

Aware of the activities previously engaged in by the Burgess office and its dealings with Lowe, Malloy questioned Godfrey closely: “So, I said, ‘Have you ever heard of the T. D. Burgess Company?’ “And he said, ‘No; I haven’t.’ “I said, ‘Have you ever heard of Mr. Athey?’ “And he said, ‘No, sir; I haven’t.’ “And I asked him if he ever heard of Mr. Lowe. “He said, ‘No, sir; I haven!t.’ “And he asked me who they were. “So, I told him. I said, ‘They are some people who had been working on a survey or a study of my ground previous, prior to this time.’ “And he said, ‘Well, I don’t know those gentlemen.’ “So, I could not remember what depart ²⁷⁵ ment Mr. Athey was with. All I knew he was in the Post Office Department. “So, he said, ‘Well, I will find out what Mr. Athey has done, and in the mean time let’s get down to business.’ “Mr. Godfrey got right down to business.” After Malloy recounted the activities engaged in by Lowe and the Principes, Godfrey communicated with Athey, and asked him to “bring whatever material he had.” A day or two later, Athey delivered to him several papers. They consisted of letters written to Lowe by the Principes, which contained information pertaining primarily to the subject property, but which included references to other parcels shown to Lowe by the Principes.

In his first visit to Malloy, Godfrey stressed that he had been designated as the sole Bureau of Facilities representative of the Post Office Department; and, indeed, that it was the practice of the Post Office Department not to deal through real estate brokers. He testified, in effect, that prior to May 1, 1970, he had done no real estate surveying in Prince George’s County, and knew nothing about any industrially-zoned sites there. In his subsequent report to the Post Office Department, Godfrey made a prefatory reference to the general criteria suggested by the Drake Sheahan study. He testified, however, that the study was not a primary factor in his recommendation that the Post Office Department acquire the subject property.

Godfrey explained that: “ . . . The main purpose of the Drake Sheahan report was to provide transportation data to the Postal Service and as a side aspect of the contract having identified what the volumes were going to be for the various bulk facilities, and considering then where these volumes of mail were coming from and going to, of designating the general location for the Bulk Mail Center. “In addition to that then they were asked to ²⁷⁶ indicate locations that would be appropriate for the Bulk Mail Center. So, the report goes on and designates five literally intersections as what they are, because while they are referred to as sites number one through five, again the information that was available to me was strictly what is here, and there is no information beyond the intersections. It was up to us, certainly, to guess what sites were intended by these locations.

And there is no indication of the owners, as an example. The only one that comes close to an owner is the one referred to as the Pennsylvania Avenue Industrial Park. “So, these were located upon as certainly areas that we should look at. And, of course, I must say these are the intersections between U. S. 50 and Pennsylvania that can be considered. So, what they have done is to say each of the intersections along the Beltway should be looked at.” (emphasis added).

He also testified that the information contained in the other papers he first received from Athey two days after initially calling on Malloy, was already known to him before he made that visit; “or would have been the kind of information that normally would have been acquired.” Godfrey particularly stressed that the Hampton Park property had been “identified as a potential site” before he received the material from Athey; and that it merely confirmed what was already obvious to him. The thrust of his testimony was that he learned of the site and called on Malloy as the result of his own investigations and the reports compiled by his own five-member team. It was those reports which disclosed that the Hampton Park property was the largest undeveloped industrially-zoned area “on the Beltway” between Route 50 and Pennsylvania Avenue; and that it was “inside” the Beltway, which was of material significance in connection with the existing “sewer moratorium.” During the month of May, following Godfrey’s first visit, ²⁷⁷ Malloy spoke to the Principes, and informed them of Godfrey’s arrival on the scene. He also related Godfrey’s claim that his presence was in no way connected with the Drake Sheahan study; and that Godfrey would not deal through the Burgess office.

Malloy also reported that after he had repeatedly questioned Godfrey whether he had ever heard of the Burgess firm, the former acknowledged that some Burgess correspondence was included in the Drake Sheahan material. It is at this point that the only real conflict in the testimony emerges. The Principes insist that in the same discussion, Malloy also went on to reassure them in this manner: “ ‘Don’t worry about it. I will recognize you as the agents.

You will get your commission.’ ” Malloy, on the other hand, denies making any such statement. They also quote him as saying: “ T have got everything under control, and just let me handle it from heref.]’” Malloy acknowledges that he said to the senior Principe: “ ’[Y]ou haven’t earned a commission in this case; however, you did go to time and trouble, you exerted some effort, you were trying to do your job, and I want to pay you something for it.’ ” In essence, his announced position then, as it has been at each stage of the proceedings, was that the Burgess efforts had been aimed at the wrong people; and that other than the extract, Burgess had no connection with Godfrey who was the key to the sale. While the Godfrey-Malloy negotiations were fermenting, the Principes complained to Malloy that they were not being permitted to participate in the efforts to complete the sale. It was then, they say, that he reassured them about being paid a commission.

Malloy acknowledges using at that point in his communications with the Principes the expression, “Don’t rock the boat.” But, as he