Hershberger v. Hershberger

Thompson, J., delivered the opinion of the Court. John E. and Louise Hershberger filed a bill of complaint in the Circuit Court of Baltimore City to compel the return of $26,513.65 from their son and daughter-in-law, John E. and Linda Hershberger, III, appellants. From a decree issued by Judge Harry A. Cole, providing for the return of the entire ³⁴⁸ sum without interest or set-offs, the second generation Hershbergers appeal, questioning whether the lower court has matched the appropriate remedy to its finding of fact. In 1972, Mr. Hershberger, Sr. decided to move to Colorado.

In an attempt to adequately provide for his wife, Louise, who was to remain in Maryland, negotiations were initiated with Mr. & Mrs. Hershberger, III. An oral agreement was reached whereby the Hershbergers, Sr. would sell their home on Manhattan Avenue, turn the entire proceeds over to the Hershbergers, III, who in return were to provide Louise with a room in their home, a car, food, and $10.00 or $15.00 a week spending money for the remainder of her life. The Manhattan Avenue property was sold and $26,513.65 was turned over to the son and daughter-in-law. In addition Mrs. Hershberger, III admitted that $2900.00 held in escrow from the sale of the Manhattan Avenue property was transferred to the younger Hershbergers.

They used the money to put a $17,500.00 down payment on a new home in Carroll County. An additional $3,500.00 or $3,600.00 was expended for the installation of an extra bedroom and bathroom for Louise and a special kitchen floor. Mr. & Mrs. Hershberger, III and Mrs. Hershberger, Sr. moved into the new home and Mr. Hershberger, Sr. left for Colorado. After moving into the new home, the younger Hershbergers put a down payment of $1,881.26 on a new car for Louise.

They continued to make payments on the automobile so that at trial only $288.00 was still outstanding. They provided her with food, an allowance, and other necessities. Unfortunately, friction arose between the two generations to such an extent that Louise was told to vacate the premises. The trial court found that through no fault of her own Louise was forced to leave home involuntarily.

The appellants do not challenge the finding of the trial court that they breached the agreement, but contend that the amount of money expended on behalf of Louise should be set off from the $26,513.65. There is no question that a court of equity has the power to require the return of the $26,513.65, even where the ³⁴⁹ agreement is unenforceable at law, if it is deemed that this relief would be just. Scott v. White, 190 Md. 389 , 58 A. 2d 490 (1948); Long v. Huseman, 186 Md. 495 , 47 A. 2d 75 (1946); and Hartsock v. Strong, 21 Md. App. 110, 116-118 , 318 A. 2d 237 (1974). It is also