North Avenue Casino Co. v. Ferguson

Briscoe, J'., delivered the opinion of the1 Court. This is an action of assumpsit by the plaintiff, a real estate broker, against the defendant, to recover commissions, for the sale of certain real estate, known as the North Avenue Casino, •or the Arcadia, situate in Baltimore City. The case was tried before the Court below, sitting as a jury, and the questions for our consideration are presented by a single exception, to the ruling of the Court, in refusing the •defendant’s five prayers, and in granting the plaintiff’s special exception to the defendant’s seventh prayer. The defendant’s prayers, except its seventh prayer were in the nature of demurrers to the evidence, and if there was any ■evidence competent and legally sufficient to sustain the plaintiff’s case, they were properly refused.

The defendant’s seventh prayer, it will be seen submitted to the Court, sitting as a jury, a question of law and tho special exception thereto, for this reason, was properly sustained. Roth v. Shupp, 94 Md. 55 ; Hobbs v. Batory, 86 Md. 70 ; Richardson v. Anderson, 109 Md. 650 . The facts of the case are these: The plaintiff a real estate broker of Baltimore City, on the 27th of March, 1915, negotiated a written contract of sale between the defendant and the Order of Boumi Temple Company, a corporation of the State of Maryland, of the property known as the North Avenue Casino or the Arcadia, corner of North avenue and Love-grove alley, Baltimore City. The property was subject to two mortgages but the purchaser was required under the contract to pay to the defend ³⁷⁸ ant only the difference between the purchase money and the mortgag'es and to: take the fee simple title subject to the mortgages. .

The property sold, was also under a five year leas¿ from the defendant to- one Maurice Tobin, and by contract of the same date, the receivers of the lessee agreed to sell the leasehold interest to the Bound Temple Company and each contract was conditional upon the performance of both contracts, so as the purchaser should have a fee simple title to the property. The purchase price for the property, and chattels, personal property and fixtures was $92,500 and the brokers? commissions of 2y2 % was included in the purchase price and were to- be paid under the contract. Subsequently, there were certain objections raised by the Bound Temple Company to the title of the leasehold interest, and exceptions filed to the ratifications of the receivers? sale, and they refused to' carry out their contract, for certain reasons., stated in the exceptions and set out in the record. On the 27th of May, 1915, the defendant filed in the Circuit Court of Baltimore City a bill for specific performance-of its contract, and in.paragraph seven (7) of the bill avers: That the North Avenue Casino Company and the receivers have complied in all particulars with the terms and conditions, of their respective contracts of sale to the Bound.

Temple Company and have tendered to it a good and sufficient deed therefor, but the latter have refused to take the property upon, the alleged grounds, that the Court that appointed the receivers was without jurisdiction so to do and further that-even if such jurisdiction existed the power of attorney of' John-Tobin was insufficient to justify him in consenting to-the- appointment of receivers and that therefore the receivers-can not give a good title to the lease and chattels and they demanded a deed of assignment for the same executed by W. Maurice Tobin himself; that while the receivers and the North. Avenue Casino. Company deny the contentions as to the valid- ³⁷⁹ it-y of the asserted powers of the receivers, they were quite willing in a desire to secure an amicable disposition of the matter to- obtain a dead signed by W. Maurice Tobin, that accordingly, at an expense of several hundred dollars, they finally located the W. Maurice Tobin and secured from him a deed of assignment of the lease and of the rights- and privileges conferred thereby as well as to all other property of W. Maurice Tobin, located in the premises herein involved; the deed being in favor of the Boumi Temple Company and confirming! in all respects the action of the receivers and of the Court; that the deed was tendered to the Boumi Temp-le Company, a body corporate, along with the deed of the complainant to the fee- simple interest but they have arbitrarily refused and still refuse to carry out its undertaking with this complainant and this in the face of the fact that this- complainant- and also the receivers have expressed a willingness to meet any reasonable condition or requirements that might be imposed by the said defendant in connection with the- consummation of the said sale-. By the ninth paragraph of the bill it was further alleged