Harris v. Kirshner

Collins, J., delivered the opinion of the Court. This is an appeal by Bertha Rose Harris, as Administratrix of the estate of Joseph G. Harris, and individually, plaintiff below, from a judgment n. o. v. for costs rendered in the Baltimore City Court by the trial judge, without a jury, in favor of the appellee, Nathan Kirshner, defendant below. On May 29th, 1948, Joseph G. Harris entered into an alleged agreement with Nathan Kirshner. This agreement is evidenced by the following receipt: “Received from Joseph G. Harris, Two Hundred ($200) Dollars deposit on 3921 Ridgewood Avenue.

The price of the property is Eighty-Three Hundred ($8,300.00) Dollars, subject to a ground rent of Eighty-Five ($85) Dollars annually. It is understood and- agreed that the seller will provide a mortgage of Six Thousand ($6,000) Dollars and that the buyer is to pay Six Hundred ($600) Dollars as additional deposit on June 10th. If the mortgage is not provided by that date the contract of the sale of property is to be null and void and the deposit of Two Hundred ($200) is to be refunded to the buyer, and upon payment of the unpaid purchase money, a ¹⁴³ deed for the property shall be executed at the Vendee’s expense by the Vendor, which shall convey the property by a good and merchantable title to the Vendee. Time of settlement June 29th or before.” This receipt was signed by J. Siskind, Agent for Nathan Kirshner.

On June 8th the following receipt was also given by Nathan Kirshner to Harris: “Received from Joseph G. Harris, Six Hundred Dollars ($600) additional deposit on 3921 Ridgewood Avenue. The balance of the price of the property is $7500.00 and is to be paid by June 18, 1948.” On June 14, 1948, Joseph G. Harris died. After his death his wife, Bertha Rose Harris, the administratrix of his estate, entered suit against Joseph Siskind and Nathan Kirshner on the common counts and a special count for the return of the $800.00 deposit. A judgment was entered in favor of Joseph Siskind for costs and against Nathan Kirshner for $800.00.

A motion for a judgment n. o. v. or for a new trial was made by Nathan Kirshner. The judgment n. o. v. was granted and judgment rendered in favor of Nathan Kirshner for costs. From the judgment in favor of Kirshner for costs the appellant appeals. The testimony shows that after the recited receipt was given for $200.00, on June 1st, 1948 Joseph Harris signed an application for himself and his wife, with a building and loan association for “a 12 year 5y%% Direct Reduction First Mortgage loan of $6000.00,” on the property to be purchased.

The principal amount of $29.58 and interest of $27.48 was to be paid monthly. This application is also signed “Agent: Siskind.” This loan was approved on June 4th, 1948, and the attorney for the building and loan association instructed to examine the title. A representative of the building and loan association testified that that association had taken all action necessary. Bertha Rose Harris, the wife of Joseph Harris, testified that this mortgage was acceptable to her.

After this application was accepted Joseph Harris, on June 8, 1948 paid the additional deposit of $600.00, which he had agreed to pay. ¹⁴⁴ The appellant contends that the contract on its face is indefinite, vague, and indistinct, and does not satisfy the Statute of Frauds because there is nothing set out in the receipts about the terms of the mortgage, length of time, amount of interest, and how it is to be amortized. Of course, a contract for the sale of land must be in writing, signed by the party to be charged or his authorized agent, and its terms must be clear, unamiguous, and certain in all its parts. Smith v. Biddle, 188 Md. 315, 321 , 52 A. 2d 473, 475 . It is true of course, that the contract was indefinite.

The only provision as to the terms of the mortgage was that “the seller will provide a mortgage of $6000.00”. However, in this case the part of the agreement which was originally too vague has become definite by partial performance. It provided that an additional deposit of $600.00 was to be paid on June 10th, but if the mortgage was not provided by that date the contract was to become null and void and the deposit of $200.00 was to be refunded. The testimony shows that the purchaser and the agent of the seller signed an application with a building and loan association for a $6000.00 mortgage on the property to be purchased.

This application definitely set out the terms of the mortgage desired. The loan was approved and the papers forwarded to the attorney of the building and loan association for title examination and record. The purchaser was satisfied with this mortgage because on June 8th he paid the additional $600.00 which was not to be paid unless the mortgage was provided. The terms of the mortgage became certain.

The contract, therefore, on June 8th before the required date of settlement by partial performance had become definite. It is said by Williston on Contracts, Revised Edition, Volume I, at pages 139, and 140: “If, however, the side of the agreement which was originally too vague for enforcement becomes definite by entire or partial performance, the other side of the agreement (or a divisible part thereof, corresponding to the performance received), though originally unenforceable, becomes binding. And even with ¹⁴⁵ out performance on either side the original indefiniteness may sometimes be cured by a subsequent definition of the intended performance.” Parks v. Griffith & Boyd