Kalavan v. Hamburger

Johnson, J., delivered the opinion of the Court. Morris Hamburger and Rachel Hamburger, his wife, owners, as tenants by the entireties, of certain adjoining houses located on North Broadway in Baltimore City and known as 1801, 1803, 1805, 1807 and 1813, filed their bill of complaint in the Circuit Court for Baltimore City against Morris Kalavan and Jacob Klotzman, alleging that defendants had on July 6th, 1939, through E. T. Newell & Co., Inc., purchased said properties at §1500 each at public auction after the same had been advertised by Newell & Co. in the Baltimore Sun. It was further alleged that in pursuance of said sale, complainants had procured the signatures of the purchasers to a written contract, a photostatic copy of which was thereunto annexed and made a part of the bill, and that by the terms of said contract the defendants paid as a deposit the sum of §500, and agreed to pay the balance due within thirty days, but had failed to make any further payment, although the time agreed upon so to do had previously expired; that complainants had made demand upon the purchasers to comply with its terms, but Kalavan and Klotzman had refused to pay the balance of the purchase money due thereunder upon said properties. They prayed specific enforcement of the contract referred to.

Kalavan and Klotzman answered the bill, denying that they were the purchasers of said five properties and as ²²⁰ serting that Kalavan did purchase the corner property, known as 1801 North Broadway, for $1500, and he not' having available funds to make a deposit thereon, Klotzman, the other respondent, who was known to the auctioneer, deposited with the latter his personal check for $500 as a deposit, whereupon the auctioneer requested that Klotzman also sign the contract, inasmuch as he had given his check for the deposit. They asserted, however, that it was not the intention of the respondents or of the auctioneer that Klotzman was to be regarded as the purchaser of the property known as 1801 North Broadway, further that Kalavan had offered to pay the balance of $1000 due by him for the property at 1801 North Broadway, but the complainants had refused to ■convey the same to him. It will thus be perceived that the issues between the parties as raised by the bill and answer are sharply drawn, complainants contending that they had sold through Newell & Co. to Kalavan and Klotzman five adjoining properties, while Kalavan and Klotzman denied that it was ever the intention of Klotzman to purchase either of said properties, but Kalavan had purchased one of them. Upon those issues, the case came on for hearing and the chancellor, after hearing in open court the testimony offered by the respective parties, decreed, (a) the specific enforcement of what was termed the contract of sale,.a copy of which was filed with the bill; (b) that the defendants comply with said contract by paying unto complainants the balance due thereunder, the sum of $7000, with interest from August 6th, 1939, to which date all expenses and income for the properties were to be adjusted; (c) that in the event the defendants refused to comply with the terms of the decree within thirty days, a trustee was appointed to resell said properties at the risk of the defendants, and (d) that the defendants pay the costs of the proceeding.

From that decree Kalavan and Klotzman have prosecuted this appeal. The principal contentions advanced by the appellants are, (1) that the contract relied upon is uncertain; (2) ²²¹ that the purchase of only one property, viz: No. 1801 North Broadway, was intended and that by Kalavan alone; (3) that the contract is lacking in mutuality. The last contention is based upon the fact that the authorization to the auctioneer to sell the properties was from Morris Hamburger only. This is inferred from the advertisement which appeared in the Baltimore Sun, to the effect that the property was being sold by Newell & Co. “by order of Morris Hamburger,” and from the additional fact that the authorization to Newell & Co. was signed only by him.

But Rachel Hamburger, his wife, testified that she had “left everything” to her husband. She is a party to the suit and it would seem clear that this fact makes the remedies mutual. 5 Pomeroy’s Equity Jurisprudence (2nd Ed.), Sec. 2192; Engler v. Garrett, 100 Md. 387 , 59 A. 648 . The first and second contentions will be considered together after reviewing the evidence shown by the record. The properties had, prior to July 6th, 1939, been advertised in the Baltimore Sun by the auctioneers, the sale to take place at four o’clock in the afternoon upon the date last mentioned, but in those advertisements nothing appears to indicate that they would be sold as an entirety, nor that one of them would be sold with the understanding that its purchaser was required to take the other four at the same price.

It further appears from the advertisement that a deposit of $200 “on each lot at the time of sale” was required to be paid and the balance was payable in thirty days, all adjustments to be made to the date of transfer, so that from a careful reading of the advertisement a person of average intelligence would naturally conclude that the properties were to be sold separately, and this evidently was the first plan, because the auctioneers had five separate contracts, one of which applied to each of the properties, which they intended to have signed by the purchasers after the sales had been held. Just when this plan was changed does not appear from the record, but it is shown that, at ²²² the hour mentioned in the advertisement, the auctioneers were present at No. 1801, being the corner property, and, before beginning the sale, it was announced that the purchaser of 1801 would be required to take the remaining properties at the same price. However, at that time neither Kalavan or Klotzman was present, and after the auctioneer had cried! the property for some minutes and succeeded in securing a bid of §1200, Kalavan and Klotzman rode up in a taxicab. One of them made a bid which was raised, and Kalavan or Klotzman continued bidding until §1500 was offered and it was struck off to Kalavan.

Thereupon the auctioneer demanded §1000 deposit upon what he contended had been sold, which was an equivalent of §200 upon each property. Kalavan had already signed the memorandum of purchase and, he being without funds, Klotzman deposited §500, saying that sum was enough. The auctioneer knew Klotzman by reputation and considered him a responsible citizen, but did not know Kalavan. However, he accepted Klotzman’s check for §500 over Hamburger’s objection, and then informed Klotzman that, since he had accepted his (Klotzman’s) check, the contract should be signed by Klotzman in addition to Kalavan.

Klotzman then inquired whether he could transfer the contract to some one else when the transaction was put through, and was assured that no reason existed why he could not. The §500 deposit was then written in figures in the appropriate place upon the memorandum or contract of sale, the pertinent provisions of which are as follows: “Baltimore, Md. 7 — 6—, 1939. “I (we) hereby acknowledge and agree to the purchase by me. (us) of the property 1801 N. Broadway described in the advertisement, copy in said advertisement and all the terms and conditions of sale hereinafter set forth, for the sum of §1500. ea., of which §500.00 has been paid at the time of the signing hereof of which is hereto attached in accordance with and subject to all the terms and conditions of sale contained......” (Evidently in the contract as printed the third and fifth lines are transposed.) ²²³ The auctioneer denied that Klotzman, when signing the memorandum of sale, told him he was not buying the property, but as early as August 3rd, 1939, counsel for Kalavan wrote Newell & Co., to the effect that his client, who had purchased 1801 North Broadway, was ready to consummate the sale upon the execution by Mr. and Mrs. Hamburger of a deed therefor, and demanded a return of the 8500 deposit, should the Hamburgers be unwilling to accede to that arrangement. John S. Townsend, vice-president of the Calvert Bank, gave testimony to the effect that he knew Klotzman, and a branch manager of his institution sent him in to see the witness concerning a loan upon the properties in the 1800 block of North Broadway, but he did not recall the amount desired; that he could not loan the amount asked by Klotzman, and when he found out it was leasehold property, he dropped the entire matter.

A. Brown DuBel, an official of the State Mutual Building Association, could not identify Klotzman, but testified that some one giving Klotzman’s name came to his office as a result of a telephone call from the office of Newell & Co.; that he talked to the party representing himself as Klotzman and made certain memoranda to the effect that Klotzman wanted a loan of S5000 upon the Broadway properties and 85000 was applied for. The witness further produced a memorandum of the application, but it does not bear the signature of Klotzman and appellee admits Klotzman did not sign it. Mr. DuBel further testified that the loan was not made, because Klotzman did not wish to pay six per cent, interest upon it. The father of the witness and a Mr. Miller were present when Klotzman called at the building association office, and both of them gave testimony which tended to corroborate the younger DuBel.

In addition Mr. Miller attended the auction sale and saw Klotzman and Kalavan there before the sale was over, but did not hear any conversation between them and Mr. Newell, nor did he see the check signed. ²²⁴ Myer Mindel testified that he attended the auction sale and remained there from its beginning until the end and heard the auctioneer’s announcements; that he saw Kalavan and Klotzman arrive at the sale in a taxicab, and before the properties were finally sold, and after their arrival the auctioneer announced that the purchaser of No. 1801 was buying the other four at the same price. Bernard Klein, a realtor, testified that he attended the sale; that he knew Kalavan and Klotzman well and recalled that they arrived at the sale after it had started; that, upon their arrival, the auctioneer stopped crying the property and announced that all five were being offered and the bid at that time was $1200 or thereabout, but after their arrival the bidding was more spirited. He could not say whether Kalavan had in fact placed any bids upon the property, but Klotzman was bidding; that Kalavan and Klotzman were standing near each other toward the curb; he further stated that when the sale was over Klotzman went to the auctioneer and there seemed to be “some wrangling,” but he did not know its nature. The witness further testified that shortly after the sale Kalavan and Klotzman went over to the car, as did the witness, who told them that they had now bought the properties and could make money upon them by recreating the ground rents; that Klotzman could not get the meaning of his conversation and replied, “Oh, well you don’t know anything about it any way”; that, they were all wrangling in regard to recreating the ground rents, and he advised that when they got straightened out, if they wished to recreate them, to come down and see them, and later Klotzman told his uncle to “go ahead and recreate the ground rents,” but the witness did not do so, because he had no