Myers v. Forbes

Bartol, J., delivered the opinion of this Court. The hill in this case was filed by the appellant to compel the specific performance of a contract made by the appellee with the complainant’s testator, and also to enjoin the appellee from further proceedings under a scire facias, on a mechanic’s lien. The contract is in these words : “ I hereby agree to do the carpenter’s work on the warehouse about to be built for Charles Myers, on the corner of South street and Exchange Place, at sixty-one per cent, off carpenter’s full measurement price, the work to be approved of by the architect. “ In consideration of the above contract, I hereby agree to lease of Charles Myers, the following lots, that is, all that lot of ground beginning for the same on the east side of Spring street, at the north-west corner of a two story brick house, said lot belonging to Alexander Lowry, and running thence north-westerly 26 feet, thence easterly parallel with Madison street, 60 feet, thence southerly parallel with Spring street 26 feet, thence westwardly parallel with Madison street 60 feet to the place of beginning. The above to be divided into two lots, and the price to be $20.00 for each lot annually, payable semi-annually on the first days of January and July, the rent to commence on the 1st day of January, 1861 — said Eorbes to have the privilege of buying out said ground rent within three years, at the rate of six per cent, per annum. ' “Jambs S. Forbes.

Baltimore, Nov. 28, 1860. Endorsed: — Patrick IIammill, llot. Witness : — O. II. Myers.” ⁶¹⁰ It appears by tbe proof that the contract for doing the-carpenter’s work on the. warehouse was fully performed by Forbes, the appellee, and after much altercation and dispute between him and Myers, the appellant’s testator, with regard to the price of the work, a final settlement of the dispute was made between them on the 28th day of May, 1861, when Myers gave his two notes to Forbes, one for $500, payable the first of October, 1861, and the other for $468.03, at six months, and a receipt was given by Forbes declaring the same to be, “when paid, in full of all demands against Myers for carpenter’s work, materials furnished, &c., on the warehouse.

A claim of lien was filed in the Clerk’s office by Forbes, and a balance of $403.69 remaining unpaid, a scire facias was issued for its collection, and to restrain further proceedings thereon, was one object of the bill in this case. The equity of the bill rests upon the alleged failure and refusal of the appellant to perform' his agreement to lease the lot of ground on Spring street, and the bill prays for a decree requiring a specific performance of the contract to lease. Objection was taken below to the jurisdiction of the Court, and the Circuit Court, entertaining the opinion that this objection was well taken, on that ground dissolved the injunction and dismissed the bill. In the opinion of this Court, if the case of the complainant were free from difficulty in other respects, and depended alone on the decision of the question of jurisdiction, the decree of the Circuit Court would have to be reversed.

The case of Smoot et al. vs. Rea and Andrews, 19 Md. Rep., 398 , and Mercer vs. Howser, (see appendix,) decided at the last term, are conclusive of this question. In our opinion the evidence in the case fails to sustain the defence on the ground either of waiver and abandon ⁶¹¹ ment of the contract on the part of the