Martien v. Mayor of Baltimore

²⁶¹ Thomas, J., delivered the opinion of the Court. The declaration in this case charges that on or about the llth of May, 1906, the defendant, the Mayor and City Council of Baltimore, through its agent, the Sewerage Commission of Baltimore, entered into a contract with the plaintiffs, “whereby the plaintiffs, who are real estate brokers, were employed to negotiate the purchases of certain lands lying near Back River, in Baltimore County, Maryland, and the plaintiffs were to receive from the defendant a commission of one and one-quarter per cent, of the aggregate amount of the defendant’s purchases of the said land; less whatever the plaintiffs might be able to obtain from the vendors of such land in excess of one and one-quarter per cent, of the aggregate amount of defendant’s purchases of said land; that the plaintiffs entered upon the performance of said contract and fully performed and discharged all their duties and obligations thereunder; that the aggregate amount of the purchases of said land by the defendant was $205,000.00; that by reason of the purchases there became due and owing by the defendant to the plaintiffs the sum of $2,562.50, but the defendant has not paid the same.” The defendant pleaded never promised as alleged, and never indebted as alleged,' and during the trial of the case, which resulted in a verdict in favor of the plaintiffs for $62.50, non pros, and judgment for defendant for costs, two exceptions were reserved by the plaintiffs, one to the rulings of the Court on the evidence, and the other to the action of the Court on the prayers, and on plaintiffs’ special exception to defendant’s sixth prayer. The Court, by granting the defendant’s first prayer, instructed the jury that there was no evidence in the case “legally sufficient under the pleadings to entitle the plaintiffs to recover any commission on the amount paid for the Willis lot, mentioned in the evidence,” and unless there was error in granting this instruction, it will not be necessary for us to consider any of the other prayers in the ease. The Act of 1904, Ch. 849, provided for the appointment, ²⁶² by the Mayor of Baltimore City, of a commission to be known as the Sewerage Commission of Baltimore City, who should have in charge the construction of a sewerage system for the City, with power to make, in the name of the Mayor and City Council of Baltimore, all contracts germane to the scope of its duties under the Act, and authorized the Mayor and City Council, acting by and through the agency of said commission, to acquire by purchase, gift or condemnation any land or property necessary for the construction or workings of such system.

The appellants, William Martien and James C. Martien, co-partners doing business under the firm name of William Martien & Co., real estate brokers of Baltimore City, knowing that the Sewerage Commission had to acquire a large lot or tract of land, needed in the construction of the proposed sewerage system, began, in the latter part of 1905 or early in 1906, to write to the Commission, making suggestions as to the character of the land in several directions from the City, which in their judgment would be desirable or suitable, and stating that they had for some time been taking an active interest in the sewerage work of Baltimore, and had collected a great deal of important data which would be useful and valuable to the Commission; that what they had done in the interest of the Commission had been done gratuitously, and tendering their services as real estate brokers whenever the Commission should decide to purchase. After having written a number of letters of the kind, on the 15th of May, 1906, General Leary, chairman of the Commission, wrote plaintiffs in reply that the Commission was not prepared at that time to 'enter into the purchase of real estate for the purpose of the Commission, but as soon as the Commission was informed of the recommendation of the advisory engineers the matter would be taken up by the Commission, and that he should be glad at that time to give the plaintiffs an interview on the subject. James C. Martien, one of the plaintiffs, states that on the 16th of May, 1906, Mr. Hendrick, the engineer, called at ²⁶³ plaintiffs’ office, and requested them to call at the Sewerage Commission’s office that afternoon. That when .they went to-the Commission’s office General Leary and Mr. Hendrick' were there, and they awaited the arrival of the Mayor, Mr. Timanus; that while wailing for the Mayor they were questioned by General Leary regarding their business experience, and upon the arrival of the Mayor they were told that the Commission had decided to purchase a large tract of land; that it was a matter “that would have to be handled very expeditiously and only with the utmost confidence,” and that it was a matter of vast importance to the Commission to acquire this land.

They wanted to know if the plaintiffs could handle the matter without outside help, and upon being assured by the plaintiffs that they could, they wanted to know what commissions plaintiffs would charge, and the plaintiffs told them two and one-half per cent, commissions; that they said that it was a “matter of considerable magnitude, a deal of large proportions,” that the land they wanted “contained about one square mile of territory,” and that they thought that the commissions ought to he less, and requested the plaintiffs to name a lower rate. That plaintiffs told them that they were not willing to charge less than two and one-half per cent, hut thought they could collect their commissions in a. number of instances from the land owner; that they said to the plaintiffs that that would not be satisfactory, as the plaintiffs would then he representing the land owners, and they preferred plaintiffs to represent the City; that plaintiffs then told them that they thought they could render the City better service by seeking to collect their commissions from the land owners, that if they were “to go in to acquire a large tract of land and not make an attempt to collect a commission from the land owners, they would immediaffily suspicion some big corporation was behind the transaction, and their prices would he higher than if we attempted to collect commission from them.” That the gentlemen representing the Commission then agreed that the plaintiffs should collect the commissions’ if possible, from the land owners, and plaintiffs said they ²⁶⁴ would guarantee to collect at least fifty per cent, of the commissions from the land owners, if the City would pay the other fifty per cent., and the Commission agreed' to that. That they then requested plaintiffs to reduce to writing the terms of the agreement, which they did as follows: ’ Baltimore, May 16, 1906. Sewerage -Commission of Baltimore.

Gentlemen:— In the matter of the purchase of property for you we hereby agree to negotiate the purchase on a basis of commission not exceeding one and one-quarter per cent, on the amount of the aggregate purchases. Prom our previous experience we do not anticipate the commission will amount to the above. Very truly yours, William Martien & Company." “The aforegoing terms are accepted by the commission. May 17th, 1906. .

Peter.Leary, Jr., Chairman.” That after plaintiffs signed this contract, Mr. Hendrick then showed them a small sketch of the property desired by the Commission, which they said contained about one square mile; that they did not know who owned the property, hut the.Mayor said that “Mr. Willis was a property owner in that section;” that these gentlemen then turned the plaintiffs over to Mr. Hendrick,-to whom plaintiffs were to make their reports as they progressed in the work. That the next day General Leary told them'that the Commission had accepted the contract formally, and had noted the acceptance on the contract, and the plaintiffs then asked him to give, them a copy of the contract, which he did. That after the contract was executed, plaintiffs, in order 1o find out who the owners of the land were, had to go to Back River and take a launch, and run down the river, and inquire of the man in charge of the launch as they went along the names of the land owners on either side of the river. The man showed them the lines of the Willis property, and gave them information about other properties, including the property of Mr. Jacob Nor ²⁶⁵ ris; that they stopped, on their return up the river, at the Harris property, and called on Mr. Horris and questioned him about the sale of the poperty.

That they made daily reports to the Commission of their progress; that they were instructed not to call on Mr. Willis nntil Mr. Hendrick said so, hut to gather information regarding property values, and when plaintiffs felt prepared to see Mm to report to Mr. Hendrick, and this they did on the 21st of May, and Mr. Hendrick told them then to call on Mr. AVillis. That plaintiffs went to see Mr. Willis the next day and told him that they had come to see him in regard to his property; that Mr. AVillis said his property was not for sale; that plaintiffs told him that they were not willing to accept that as his answer, that they were there to negotiate for his property, and desired to deal with him for it; that he insisted that he did not want to sell it, and they told him he might have to sell i‘¿ and that then Mr. AVillis said, “well, now if you represent anyone having the power of eminent domain, such as a railroad company, and can make me sell the property, I am not as foolish as that and I will talk to you. about my property;” that plaintiffs told him that their client had “the right of eminent domain,” and that he said then he would talk to them, and told them that his property contained about six hundred acres, he did not know the correct area; that he estimated that he had about 5000 feet on Back River, and about 1000 feet on Eastern Avenue, and about 500 acres of inland property; that he estimated his front on the river to he worth about $1.00 a foot, and his front on Eastern Avenue at $2.00 a foot, and the 500 acres at $200.00 an acre, and said that he would take $250,000.00 for the property. That plaintiff asked him if he could get a plat of his property for them, so that they “could get down to correct dealing with him on his property,” as it was not satisfactory to deal on roughly estimated acreage or frontage, and he said Bouldin had made surveys at different times of portions of the property, and that he would see him. That plaintiffs made a written report, of this interview with Mr. Willis to the Commission on the 22nd of May; that ²⁶⁶ on the-24th of May they went to see Mr. Willis again 1o see if he had gotten a plat of the property, and he said that Bouldin was to proceed.' at once to prepare a plat of his property, and that as soon as he got hold of it