Malin v. Robinson

Collins, J., delivered the opinion of the Court. This is an appeal by John P. Malin, as executor of the last will and testament of Warren E. Malin, and individually, defendant below, from a judgment of the Circuit Court for Cecil County against him and in favor of the appellee, Ralph Robinson, plaintiff below, for the return of a deposit paid by the appellee to appellant’s decedent on an agreement for the purchase of real estate. The case was tried before the trial judge without a jury. On August 8, 1946, Warren E. Malin, as seller, entered into an agreement with Ralph W. Robinson, as purchaser, for the sale of garage property in Elkton, Maryland, for the price of $30,000.

The agreement acknowledged the receipt of $2,000 as paid on the purchase price. The balance of $28,000 was to be paid on or before September 1, 1946, when title was to pass. The agreement provided that the seller was to renew “the south half of the roof over the garage with a good rubberoid roofing properly applied,” and to bring in water from Bow Street to the building. Landlord possession was to be delivered at the time of sale.

After tlie execution of the contract, early in August, the parties to the agreement went to Philadelphia and ¹⁰⁶ interviewed the representatives of the Chrysler Motor Company in an effort to obtain for Robinson the agency for Chrysler cars in Elkton. Robinson testified that Malin had assured him that there would be no difficulty in getting this agency. No such provision was included in the agreement of sale. In Philadelphia, they were advised by the secretary to the General Manager that distributorships were closed for two years after the war and none were being given at that time.

During the latter part of August, Malin became ill and was confined to the Elkton Hospital. On August 30, 1946, an agreement was signed by the parties to the contract extending the time for settlement to October 1, 1946. Mr. Warren Malin died September 15, 1946. Upon failure of his executor to return the $2,000 paid on the purchase price, suit was entered against him on the common counts and a special count.

From a judgment for the return of that deposit with interest the appellant appeals. The appellee argues, with other contentions, that the contract of sale was mutually rescinded or abandoned and that therefore the judgment should be affirmed. E.Kirk Brown, Esq., of Elkton, who drew the contract of sale, testified that on August 27th, Mr. Robinson had obtained the money to settle with Mr. Malin and they went to the hospital on that date to make settlement. On account of Malin’s illness this could not be done.

Malin referred Mr. Robinson and Mr. Brown to Mr. C. A. Ring-gold, Treasurer of the Elkton Banking and Trust Company as his representative to make the settlement, but they were informed by Mr. Ringgold that settlement could not be made at that time because he did not know whether Mr. Malin’s wife, from whom he was separated, would sign the deed. Mr. Ringgold testified that he recalled that Mr. Kirk Brown and Mr. Ralph Robinson came to see him about August 27, 1946, regarding this particular settlement and talked about making settlement in a few days. “However, a question was brought up, I believe by myself, as to whether or not Mrs. Malin ¹⁰⁷ would not have to sign the deed to this property, she still being alive at the time. I think that was the main question that was brought up at this time.” Mr. Brown testified that when told of Mr. Ringgold’s statement, Mr. Warren Malin, on August 28th, said that he had spent most of the $2,000 and could not repay it but when he got out of the hospital he would pay it back. At the suggestion of Attorney Brown an agreement was signed on August 30th, extending the time of settlement to October 1st.

Mr. Brown testified that on that day Malin told him that he knew it was impossible for Mr. Robinson to get the Chrysler agency and that tender of the purchase price was not necessary. In spite of this, however, the extension agreement was signed. Therefore, if there was any abandonment of the agreement it must have occurred after the signing of the extension on August 30, 1946. On September 21, 1946, the will of Warren E. Malin was admitted to probate and Mr. John P. Malin named executor.

The executor testified that in the latter part of September, 1946, he saw Mr. Robinson at his home and was told by Robinson that he was no longer interested in the property. This conversation is denied by Mr. Robinson. During October, after the extension agreement expired, Mrs. Warren Malin died. Mr. Brown testified that about November 8th Mr. John Malin said that he would rather keep the property than sell it, but owing to financial conditions he did not know what he could do about it.

There was then some conversation about the re-payment of the $2,000. Mr. Brown then suggested to the executor that he employ counsel to represent him as he represented Mr. Robinson and he wrote a letter to Malin to that effect. The appellant then employed Mr. Roland S. Grubb of West Chester, Pennsylvania, as his attorney. A few days prior to December 1, 1946, Robinson says — Grubb says November 16, 1946 — 'Mr. John Malin, and Roland S. Grubb, visited Mr. Robinson and talked to him about the property and discussed with him the contract.

At that time Mr. Robinson told them he ¹⁰⁸ was not