Kriel v. Cullison

Oeeutt, J., delivered the opinion of the Court. William T. Cullison, the appellee, on March 16th, 1928, agreed with Walter E. Kriel, the appellant, to sell to him five separate parcels of land lying in Carroll County, Maryland, for $12,500, and on the same day delivered to Kriel a written receipt for fifty dollars, paid on account of the purchase price. But after that payment had been made it was found that Cullison had only a life interest in one of the tracts, and for that reason it was impossible for him to perform his contract. Both Kriel and Cullison, at that time, appear to have been desirous of completing the purchase of ⁴⁰⁴ the land which Cullison had undertaken to sell to Kriel, and to make that possible a proceeding was instituted for the sale of the parcel in which Cullison held the life estate, as a result of which trustees were appointed to sell it, and they reported a sale of it to Kriel for $5,000.

The sale was ratified, the purchase price paid, and the property conveyed to Kriel. That parcel lay on the west side of the Hanover Turnpike Road, and was estimated to contain eighty-five acres. On December 3rd, 1930, the day on which he agreed with the trustees to purchase the eighty-five-aere tract, Kriel executed a second contract with William T. Cullison, under which Cullison bargained and sold to him the same four lots which were described in the first contract, which Cullison had made with him on March 16th, 1928, and which, with the eighty-five-acre tract, comprised all the land which Cullison in that contract undertook to sell. In that contract of December 3rd, 1930, between Cullison and Kriel, the parties agreed: “That the said Yendor doth hereby bargain and sell unto the said Yen dee, and the latter doth hereby purchase from the former, all those several tracts of land lying east of Hanover Turnpike Road, of Carroll County, State of Maryland, containing in the aggregate forty-five acres, more or less, and more particularly described as follows: “(1) A tract of twenty acres, more or less, lying on the east side of Hanover Turnpike Road between Greenmount and Hampstead. “(2)° A tract of ten acres, more or less, lying on the Gross Mill Road. “(3) A tract of nine acres, more or less, lying at or near Rockbrook. “(4) A tract of five acres, more or less, lying in Greenmount. “Being all and the same property which by the last will and testament of Jesse M. Cullison, Sr., dated May 1, 1819, and recorded in the office of the Register of Wills of Baltimore City in Wills Liber R. T. B. 61, folio 119, was devised to Jesse M, Cullison, Jr., ⁴⁰⁵ for life, with remainder to his child or children, and if none surviving him, then to the said Vendor herein, the said Jesse M. Oullison, Sr., having died in 1889, and the said Jesse Al.

Oullison, Jr., having died in 1925 unmarried and without any child or children surviving him. “At and for the price of Seven Thousand Five Hundred Dollars ($7,500), of which the sum of Fifty Dollars ($50.00) was paid prior to the execution of this contract of sale, the balance of Seven Thousand Four Hundred and Fifty Dollars ($7,450) to he paid upon the ratification by the Circuit Court for Carroll County, in Equity, in the case of William T. Oullison et al. v. Georgia F. Crook et al. (Ho. 5869), of a contract of sale of even date herewith covering Oullison property lying on the west side of the Hanover Turnpike Road. “And * * * “It is understood and agreed between tbe parties hereto that this contract of sale shall become inoperative and without effect in the event that the sale to the Vendee herein in the court proceeding aforesaid of property lying on the west side of the Hanover Turnpike Road shall not be finally ratified, and upon such failure of ratification the deposit aforesaid shall he returned.” In January, 1931, when the purchaser had the land described in that contract surveyed, it was found that the “twenty acre” tract, known as the “White Hall property,” actually contained 11.52 acres, of which 1.08 acres were subject to a railroad right of way, the “five acre” tract known as the “Dayhoff” lot, 7.13 acres, the “ten acre” tract known as the ‘‘Worthington” lot, 10 acres, and the “nine acre” tract known as “Hoover’s Lot,” 3.748 acres. The aggregate acreage of these four lots as estimated in the contract was 44 acres, while the actual acreage shown by the survey was 31.32, a deficiency of 12.68 acres. Alleging that deficiency as a reason, the vendee refused to perform the contract, and on December 7th, 1931, the vendor filed the bill in this case ⁴⁰⁶ against the vendee, in which he prayed that the contract of December 3rd, 1930, for the sale of those four lots, be spe'cifically enforced. The trial resulted in a decree in favor of the vendor, in which the court directed the vendee to forthwith pay or bring into court the purchase money less an allowance of $561.50 for the deficiency, and that failing the payment or forthcoming of said money that the land be sold and the proceeds brought into court to be distributed under its direction.

The appeal is from that decree. The important question submitted is whether, upon the facts of the case, appellee was entitled to a decree requiring appellant to specifically perform the contract of December 3rd, 1930. If he was so entitled, a subsidiary question arises, whether the abatement allowed by the decree was sufficient to adequately compensate appellant for any deficiency in the quantity of the land sold. The material facts are either admitted by the pleadings or established by the proof, and may be -thus stated: Because of their character and location three of the four lots described in the contract may be considered as a group separately from the fourth.

Those three lots are: (a) The Worthington lot on the Gross Mills Road, estimated in the contract and shown by the survey to contains 10 acres; (b) Hoover’s lot near Rockbrook, estimated in the contract to contain 9 acres and shown by the survey to contain 3.748; and (c) the Dayhoff lot at Greemnount, estimated in the contract to contain 5 acres and shown by the survey to contain 7.13. These three lots were referred to in the evidence as “wood lots,” were not contiguous, were remote from the turnpike, and were valued by Kriel at fifty dollars per acre. The fourth lot, estimated in the contract to contain twenty acres, and known as the White Hall property, binds for about 904.66 feet on the east side of the Hanover Turnpike Road, which continues a short distance beyond as the main street of the Town of Hampstead. That lot was shown by the survey to contain 10.44 acres, exclusive of a railway right of way containing 1.08 acre’s, which runs through the property several hundred feet distant from and nearly par ⁴⁰⁷ allel to the turnpike.

It is separated by the turnpike from the tract estimated in the contract of March 16th, 1928, to contain 85 acres but which was found by actual survey to -contain 87.79 acres. It is obvious from the evidence that the controlling consideration which induced Kriel to execute the contract of December 3rd, 1930, with Cullison was his desire to obtain that lot, which will hereafter be referred to as the White Hall property, that he attached little importance to the three wood lots, and that they were included in the contract only because Cullison desired to sell all of his property lying in Carroll County as a whole. Kriel, at the time he made the contract, had never inspected the three wood lots, did not even know where the Dayhoff and Hoover lots were located, and while he knew the “direction” of the Worthington lot on the Gross Mills Road, he did not know the “exact” location of it. In the course of his examination Kriel admitted that, in the proceeding for the sale of the eighty-five acre tract, he had valued the frontage of that land on the Hanover Turnpike, and of the White Hall property which binds on the same road opposite to it, at $8 a foot, and that he had valued the timber on the eighty-five acre tract at $1,000.

And he valued so much of the eighty-five acre tract as did not bind on that road at about $30 per acre. But accepting his valuation of the frontage of the eighty-five acre tract on the Hanover Turnpike Road at $8 per foot, which was based upon its utility for building lots, it is apparent that the remainder of that tract was worth little more than $20 an acre. As stated above, the chancellor decreed that the vendee specifically perform the contract, but abated $561.50 from' the purchase price. That abatement was based upon an allowance of $50 per acre for the deficiency in acreage, less an allowance of .033 for variation to gratify the words “more or less” in the contract.

That allowance was based upon the excess acreage in the purchase of the eighty-five acre tract,which the parties had accepted without question, as a substantial compliance with the contract to convey eighty-five acres. ⁴⁰⁸ Turning to the first question stated, the important inquiry is whether Cullison sold the four lots by the acre or in gross. A sale in gross, sometimes .called a “contract of hazard,” is where specific designated parcels of land are sold as a whole ahd there is no warranty, express or implied, as to quantity. 2 Words and Phrases, Third Series, page 446. In determining whether a sale is by the acre or in gross, as in other contracts, the intention of the parties is controlling and must be given effect. 21 R. C. L. 436; 39 Cyc. 1313, note 5. Where the language of the contract is clear, plain, and free from ambiguity, that intention must be gathered from its four corners; but where it leaves the question in doubt, extrinsic evidence as to the surrounding circumstances and the situation of the parties is admissible to aid in its interpretation.

Ibid. The mere fact that the acreage is specified in the contract does not conclude the question, and where it is apparent that the specification of quantity was not intended by the parties to be of the essence of the contract, but merely descriptive of the property, the sale will be considered as in gross, notwithstanding the specification (39 Cyc. 1313, note), especially where the specification is qualified by the words “more or less.” Tyson v. Hardesty, 29 Md. 305 ; Slothower v. Gordon, 23 Md. 9 ; Hall v. Mayhew, 15 Md. 551 ; Stull v. Hurtt, 9 Gill. 446; Hurt v. Stull, 3 Md. Ch. 24 . In Slothower v. Gordon, supra, in referring to the effect of those words when used to modify a specification of quantity in a contract for the sale of land, the court said: “The terms used in describing the quantity of land, have acquired a legal meaning in this State, which is supposed to he known to all purchasers. The construction of these terms is judicially determined by the cases cited by Judge Krebs, in his elaborate opinion in the case of Hall v. Mayhew, 15 Md. 559 , afterwards affirmed by this court.

The learned judge says: Tt is not necessary to look beyond the decisions of our own courts for the true import and effect of the terms “more or less” or “estimated to contain,” in contracts for the sale of lands.’ In Jones v. Plater, 2 Gill, 128 , the court ⁴⁰⁹ adopts the law as stated in the words of Judge Story, in the case of Stebbins v. Eddy, 4 Mason, 419 [Fed. Cas. No. 13,342]. ‘It seems to me that there is much good sense in holding that the words more or less, or other equivalent words in contracts or conveyances of this sort, should be construed to qualify the representation of the quantity in such a manner that, if made in good faith, neither party will be entitled to relief on account of a deficiency or surplus.’ “In Hurt v. Stull, 3 Md. Ch. 26 , the Chancellor says: ‘If the representation of the quantity be mere matter of description, and not of the essence of the contract, as where there are qualifying words, as “more or less,” or “by estimation,” the vendee must be understood as assuming upon himself the risk of the quantity.’ He also quotes the language of Judge Story, as above cited, and says: ‘It must be regarded as establishing the law here.’ This decision was affirmed in [Stull v. Hurtt] 9 Gill, 451 , where the court says: ‘These words must be considered as qualifying the representation of quantity, and neither party could claim relief on account of a deficiency or a surplus.’ ” See, also, Eastland v. Robinson, 233 Ky. 403 , 25 S. W. (2nd) 1028 ; Wagner v. Goodrich, 148 Md. 323 , 129 A. 364 ; Musselman v. Moxley, 152 Md. 17 , 136 A. 48 ; Cohen v. Numsen, 104 Md. 681 , 65 A. 432 ; Neavitt v. Lightner, 155 Md. 372 , 142 A. 109 . In Marbury v. Stonestreet, 1 Md. 147 , relied upon by appellant as opposed to that principle, the affirmation of quantity was positive and