Klavens v. Siegel

Singley, J., delivered the opinion of the Court. In March 1968 the Siegels entered into a contract to purchase the Klavens’ residence in Summit Park, Baltimore County. The contract provided that the purchase price was $23,500 for a leasehold interest, subject to a ground rent of $120.00; for settlement on or before 30 July 1968; described the property only as “2415 Light-foot Drive”; and contained the usual provision that title was to be good and merchantable. In May of 1968 the Siegels, who planned to build an addition to the house, engaged the engineering firm of Matz, Childs and Associates to make a survey and prepare the perimeter description which would be needed ⁴⁷⁸ in connection with a petition for a rear and side yard variance which the Siegels proposed to file with the Baltimore County Zoning Commissioner.

Incident to the making of the survey, it was discovered that the Klavens’ driveway encroached on an adjoining lot. The encroachment, which was 4.9 feet wide where the driveway entered Lightfoot Drive, extended for a length of 28 feet, gradually narrowing in width. Negotiations were entered into by the Siegels and the Klavens in an effort to resolve the difficulty, but proved, for reasons now unimportant, to be fruitless. The Siegels, advised by their title company that an unqualified policy of title insurance would not be issued, declined to make settlement and demanded a return of the $3,000 deposit which they had made.

The Klavens declared the deposit forfeited, and the Siegels brought suit for damages for breach of contract in the Circuit Court for Baltimore County. From a judgment of $3,200 with interest and costs entered on a jury verdict in the Siegels’ favor, the Klavens have appealed. Both parties concede that merchantability of title is an issue in the case. The Klavens assign three reasons why the judgment should be reversed: (i) the defect in title was not sufficiently substantial to adversely affect merchantability; (ii) the court erred in excluding evidence of merchantability; (iii) the court erred in admitting the testimony of an employee of the Siegels’ engineers, because he had no personal knowledge of the facts as to which he testified.

(i) The Klavens’ contention that the defect was not sufficiently substantial to have an adverse effect on merchantability is simply another way of saying that there was insufficient evidence to take the case to the jury. The Klavens’ motion for a directed verdict at the end of the Siegels’ case was denied. It was not renewed at the end of the entire case. There were no exceptions to the court’s instructions.

As this Court, speaking through Judge Mar- ⁴⁷⁹ bury, said in Rockville Corp. v. Rogan, 246 Md. 482, 484-85 , 229 A. 2d 76 (1967): “There is nothing before this Court to review. After making its motion for a directed verdict at the close of appellees’ case, which motion was denied, appellant offered evidence to support its theory of the case and to rebut the evidence presented by appellees. The motion for directed verdict was withdrawn by the appellant’s presentation of evidence. Maryland Rule 552 b.

Schmidt v. Millhauser, 212 Md. 585 , 130 A. 2d 572 ; Smith v. Carr, 189 Md. 338 , 56 A. 2d 151 . At the close of all the evidence appellant made a motion for a directed verdict without stating the grounds therefor, as he had done previously for the motion made at the close of the evidence offered by appellees, [citing cases]. A party has the obligation to state for the record the grounds of his motion for a directed verdict in order to inform the court and the counsel for the non-moving party. * * * The second motion was defective, and having failed to properly renew the first motion and the reasons therefor, appellant can not now rely upon either on appeal. Appellant also failed to object to any instructions given the jury.

Since appellant offered evidence after making its motion for a directed verdict at the close of appellees’ testimony, but failed to properly renew the motion at the close of all the evidence or to object to instructions with reference to the issues raised in the trial, the rulings on the motions and the instructions to the jury became the law of the case and the questions raised by the appellant are not properly before this Court for decision.” This has been quoted with approval in Jones v. Federal Paper Board Co., 252 Md. 475, 488-89 , 250 A. 2d 653 ⁴⁸⁰ (1969) and in Glover v. Saunders, 252 Md. 102, 105-06 , 249 A. 2d 156 (1969) and is certainly apposite here. We are constrained to note in passing, however, that there was evidence from which the jury could, and probably did find that the Klavens lot was irregularly shaped and was a little less than a quarter-acre in area; that the driveway provided the only means of vehicular or pedestrian access to the house; that the driveway was 133-1/5 inches wide where it entered Lightfoot Drive, and that the encroachment was 58% inches at this point. If Mr. Siegel had been denied use of that part of the drive which encroached, he would have been left with a driveway 741/2 inches wide. He testified that both of his cars were wider than this.

(ii) The Klavens say that the court erred in excluding testimony as to merchantability. Mr. Klavens was asked on direct examination: “All