Kraft v. Egan

Briscoe, J., delivered the opinion of the Court. The first appeal in this case is reported in 76 Md., 243 . It was a bill filed for the specific performance of a contract for the sale of land and improvements. On that appeal we held the contract to be sufficiently certain in description, and that the rent was a sub-rent.

Afterwards the appellee Egan, answered the bill, alleging that the written agreement did not correctly state the contract between the parties; that the complainants were to sell the whole fee simple for $27,500, and not subject to a ground rent of $600 a year; and that the contract had been signed by mistake. The following clause of the agreement is the one about which the controversy arose: “Witnesseth that Kraft and "Winebrenner have sold to said Egan all their land, and improvements thereon, together with the boiler and elevator, on the east side of Belt Street, * * * * which is subject to a ground rent of $600 a year. “The terms of sale are twenty-seven thousand, five hundred dollars for said property, of which the sum of one hundred dollars has been paid this day, and thirty-nine or forty-nine hundred dollars more, making say four thousand dollars, or five thousand dollars, shall be paid within thirty-days from this date, and the balance ³⁹ within five years from the first day of May, 1891, with interest semi-annually from that date.” The principal questions in the case relate to the admissibility of parol evidence in defence, in suits for a specific performance. It is a well established rule that in suits for the specific performance of agreements, even when written, the defendant may, by means of parol evidence, show that through the mistake of both or either of the parties, the writing does not express the real agreement, or that the agreement itself was entered into through a mistake as to its subject-matter, or as to its terms. In short, a Court of equity will not grant its affirmative remedy to compel the defendant to perform a contract which he did not intend to make, or which he would not have entered into had its true effect been understood.” 2 Pom.

Bq. Jur., sec. 860. And this rule has been sanctioned by this Court in many cases. Philpott vs. Elliott, 4 Md. Chan.

Dec., 273; Moale vs. Buchanan, 11 G. & J., 314 ; Popplein vs. Foley, 61 Md., 381 ; Bond, Adm’r vs. Dorsey, et al., 65 Md., 310 . It is aiso true that grounds of defence are open, in resisting the application for a specific performance, which would not avail a plaintiff seeking the aid of a Court of equity to enforce the performance of a contract. Waters vs. Hoivard, 1 Md. Chan. Dec., 112; Gough vs. Crane, 3 Md. Chan.

Dec., 119. And in the case of Dulany, et al., Ex’rs vs. Rogers, 50 Md., 533 , this Court held that Courts will not rectify a contract unless it was executed under a common mistake, —both parties having done that which neither of them intended, — yet a mistake on one side may be ground for rescinding the contract. What then, are the facts, as disclosed by the record, upon which this appellee relies in resisting the enforcement of this contract ? ⁴⁰ The witness Eneran Egan, the father of the appellee, who made the first negotiation for the