Kalis v. Shor

Collins, J., delivered the opinion of the Court. This is an appeal by Samuel D. Kalis from a decree of the Circuit Court of Baltimore City, requiring the appellant, defendant below, to specifically perform a contract. The plaintiff below, appellee here, advertised in her name and in the name of the auctioneer, leasehold property in Baltimore “together with the store and fixtures of Confectionery. Cigars, Tobacco, Soda Fountain, etc.” Why a period rather than a comma appears after the word “Confectionery” is not explained.

This was evidently an error in the advertisement. The advertisement stated “ground rent $68.00.” At the time of the sale, October 14, 1948, the auctioneer announced that there was furniture in several of the rented rooms in the property and that “whatever furniture belonged to the owner would go along with the property, stock, and fixtures..,. There was no inventory of it, but what ⁶⁴⁶ ever furniture — I think she told me it was very poor, and I announced it was very poor, but whatever there is here that belongs to the owner will become a part of the sale — will go with the property.” The rented rooms were registered with the Office of Price Administration at that time. There was no announcement whether the ground rent was redeemable or irredeemable.

There was no inventory or schedule of the cigars and tobacco. Everything sold was in sight on the premises, except the furniture in the rooms, which as hereinbefore set forth, the auctioneer stated was of very little value. All the fixtures and chattels were in the store and on the premises at the time of the sale. The bidding at the sale was rather spirited, starting at $10,000.

From 125 to 150 bids were made. The highest bid was finally made by the appellant at $16,125. He paid a deposit of $1,500 and signed a memorandum of sale prepared by the auctioneer. The auctioneer stated that the appellant arrived after the sale was under way “and when he began bidding on the property I think I went over the whole situation again from the very beginning.

I made my announcements all over again. I told him about the rentals we were getting from the signs, and what the rentals were we could get from the rooms, and I went right over the same announcement I had made. He came up after the sale started. As I recall, it, I might be wrong about that, but it seems to me he did, and I did that for his benefit.” Immediately after the sale the store was closed.

On November 24, 1948, the attorney for the appellant wrote a letter to the appellee, stating among other things, that title examination showed that the property was subject to an annual ground rent of $68 which was irredeemable. In view of the fact that this was not announced at the sale and the title to the property was not good and marketable, he asked the return of the deposit of $1,500. On December 11, 1948, this attorney wrote another letter to the appellee demanding return of the $1,500 deposit “due to title to said property not ⁶⁴⁷ being good and merchantable, and not in accordance with the advertisement of the sale of the property.” On December 17, 1948, the appellee filed a bill of complaint alleging, among other things, that she was ready, willing and able to perform her part of the contract, but that the defendant had refused to carry out his obligations thereunder and had notified her that he had no intention of complying with the contract. She asked that the contract be specifically enforced.

The appellant filed an answer basing his refusal to carry out the contract on the ground that he was not informed by the advertisement of the property, or in any other way at the time of the sale, that the ground rent of $68 was irredeemable. After a hearing before the chancellor, at which no evidence was offered by the appellant except three letters offered as exhibits, the chancellor signed a decree on March 11, 1949, ordering the appellant to specifically perform the contract. From that decree the appellant appeals. The appellant alleges that the contract was not sufficiently clear, definite, complete, and certain, to form the basis for a decree of specific performance because there