North Avenue Land Co. v. Mayor of Baltimore

⁴⁷⁷ Boyd, J., delivered the opinion of the Court. This is an appeal from a decree of the Circuit Court of Baltimore City dismissing the bill of complaint of the North Avenue Land Company, George R. Vickers, Jr., trustee, Frank H. Callaway, and Fielder C. Slingluff and Frank Slingluff, trustees, against the Mayor and City Council of Baltimore, which sought to require of the defendant the specific performance of an alleged contract for the purchase of land to be used as a reservoir site. Some questions affecting the contract were before us in Callaway v. Baltimore City, 99 Md. 315 , and Callaway v. Hubner, Ibid, 529, and the case of Vickers v. Baltimore City was argued with this. The latter is an appeal from a decree sustaining exceptions to a sale of a part of the land involved and will be disposed of in a separate opinion.

The city relied on numerous grounds to sustain the decree of the Circuit Court but, although they were argued with great ability on both sides, it will be unnecessary for us to pass on all of them in view of the conclusion we have reached, which determines the controversy, regardless of many questions raised. It is conceded that for sometime prior to the execution of the option hereinafter considered, the authorities of the city of Baltimore had concluded that additional reservoir capacity for the storage of clear water h'ad, to'use the language of Mr. Quick, the Water Engineer, become “of imperative necessity.” That was not only deemed necessary by reason of there being long periods during which the Gunpowder river, from which the water supply is obtained, was very muddy, but an additional clear water storage-reservoir was> “an imperative necessity” in order to insure water -to what is called “the high service district which comprises about one-third Qf the city’s area, as well as its population.” According to the evidence, the available reservoir capacity was scarcely sufficient for two day’s supply for that territory, and that was dependent upon pumping. In the event of an accident which would put the pumps out of service for several days there was great danger of exhausting the supply. Such an emergency had arisen twice within the period of six years prior to the ⁴⁷⁸ time Mr. Quick testified (August, 1903), and the supply of water was so low in the high service district “that hundreds of people had to go to the parks, wells and fountains and to private wells elsewhere, to get water.” Mr. Quick concluded his testimony on this point by saying: “So that a break at the pumps, or at the force mains, that would take over two days to repair, or three days or more, would undoubtedly result in a water famine in a district covering about one-third of the city.” An Act of the Assembly was passed (1902, ch. 333), to enable the city to issue stock to an amount not exceeding one million dollars for the betterment, enlargement, increase and improvement of the water service and supply, by the construction of an additional storage reservoir, the extension of the service, etc. An ordinance was passed in pursuance of that Act which was ratified by the voters at the election held in November of that year.

The Ordinance of Estimates for the year 1903, approved December 8th, 1902, appropriated three hundred and fifty thousand dollars for the acquisition, by the Mayor, Comptroller and Water Engineer, of land for a new reservoir, and the cost of its construction. Even prior to the passage -of the Act of Assembly the city authorities were investigating reservoir sites and other matters connected with the proposed improvements, and what is known in these proceedings as the “Callaway Site” was one of several under consideration. The commission, composed of the three officers named, organized in December, 1902, and met a number of times. Mr. Quick made borings on the several sites, to ascertain the character of the soil, etc., and on May 14th, 1903, he made a report to the commission stating the results, and recommending' what is spoken of as the “Williams Site.” He furnished copies of his reports to the Mayor and Comptroller and the commission again met on May 16th.

At that meeting the Mayor and Comptroller voted in favor of the Callaway site at $2,000 per acre — Mr. Quick voting in the negative. Mayor Hayes then produced an option on the Callaway site which he and Comptroller Smith accepted. That is dated the 15th day of May, 1903, is signed by Mr. Callaway and “rati ⁴⁷⁹ fied upon the part” of the Slingluff estate by the signatures of the two trustees, Messrs. Fielder C. and Frank Slingluff, on the part of the Vickers’ estate by George R. Vickers, Jr., trustee, and by the North Avenue Land Company on its part.

It gave the Mayor and City Council of Baltimore the option of purchase, on or before the 18th day of May, 1903, at $2,000 per acre, of (1) fifty-eight acres of a tract of ninety-two acres, (with the privilege of taking the whole of it) “described in the petition and report of Fielder C. Slingluff and Frank Slingluff, trustees, in the case of Fielder C. Slingluff et al. v. C. Bohn Slingluff et al., made and reported to the Circuit Court of Baltimore City, as a six months’ option to the said Frank H. Callaway and by said Court authorized on the 24th day of December, 1902;” (2) twelve acres belonging to the estate of George R. Vickers, deceased, and (3) ten acres of the North Avenue Land Company tract. Mr. Callaway also agreed to convey certain rights of way therein referred to. The acceptance by the Mayor and Comptroller recites a resolution of the commission and mentioned the terms of purchase — being the samé stated in the option. The petition of the Slingluff trustees reported that they had an offer from Callaway of $700 per acre; that they believed it would be “a most advantageous sale if they can dispose of the entire ninety-two acres above described, or any portion thereof, at the rate of seven hundred dollars per acre,” and prayed the Court to authorize them to grant Callaway an option for six months on the entire portion, or so much as he may want, upon final ratification of sale by the Court.

That petition was accompanied by a certificate of two real estate brokers, certifying that in their opinion the price was “an extremely good” one' for the property in question. On December 24th, 1902, the Court authorized the trustees to give the option for six months, which they did by 'a writing dated December 26th. On June 10th, 1903, Callaway notified the trustees that he accepted the option, and asked them to take such steps as were necessary to convey to him the fee-simple title. On June 25th they reported the sale to the Court, which was set aside by order of ⁴⁸⁰ December 29th, 1903, which order was affirmed by this Court on June 9th, 1904.

In 1903 Mr. McLanewas elected Mayor and Mr. Heffner Comptroller, and on July 20th, 1903, they notified Mr. Callaway, that the Mayor and City Council of Baltimore repudiated the acts of the commission, especially of the majority in accepting the option, and on January 14th, 1904, an ordinance was passed repealing the appropriation of $3 50,000, so much of the Ordinance of Estimates as purported to authorize the Mayor, Comptroller and Water Engineer to acquire land for the new reservoir, etc. ° Under these facts and others established by the record, some of which we will refer to, are the appellants entitled to a decree for specific performance, even if it be conceded that the action of the Mayor and Comptroller did bind the city, and that the contract could not be rescinded., at the mere dis - cretion of the Mayor and Council, without some sufficient cause for such action? It is scarcely necessary to repeat the general principles applicable to relief by specific performance, but in Bamberger v. Johnson, 86 Md. 41 , after saying that the application for such relief “is addressed to the sound discretion of the Court, to be granted or refused according to its circumstances; it does not flow as a matter of right,” this Court approved a quotation from Fry on Spec. Per., sec. 44, which it may be well to bear in mind. It is there said that “The meaning of this proposition is not that the Court may arbitrarily or capriciously perform one contract and refuse to perform another; but that the.

Court has regard to the conduct of the plaintiff and to circumstances outside the contract itself, and that the mere fact of the existence of a valid contract is not conclusive in the plaintiff’s favor.” We have seen that it was deemed by the city authorities “an imperative necessity” to have a new reservoir for the storage of clearwater, and the testimony of Mr. Quick and of ex-Mayor Hayes shows that time was not only material, but was of the very essence of the contract. It cannot be doubted that before Mr. Calla-way had obtained the acceptance from the Mayor and Comptroller he was aware of the importance to the city of a speedy ⁴⁸¹ consummation of such purchase as would be made. On March 6th, 1903, in a letter addressed to the secretary of the commission, he said: “I can also give a guaranteed, merchantable, fee-simple title to the entire property, and am also ready to sign the necessary papers, give immediate possession absolutely free from all condemnation." That particular expression was not used in the option he gave the Mayor and City Council, but he limited the option to “the 18th day of May, 1903” — just three days after the date of his offer — and it was therein provided that “the purchase-money for said land to be paid within sixty days from the date of the acceptance of this option without interest, unless further time be required by the City Law Department for the examination and perfection of the titles to said land and rights-of way, in which event further reasonable time shall be given for that purpose, provided that the said Callaway in his own right and those for whom he is acting as agent are ready to execute and deliver a good and merchantable title by deed in fee-simple to said land intended to be conveyed.” It is clear then that the agreement contemplated that the city should pay the purchase-money and that Callaway and those for whom he was acting should convey the property within sixty days, unless further time was required by the City Law Officers for the examination and perfection of the title, and in that event “ further reasonable time” was to be given for the payment and the conveyance. At the end of the sixty days (July 15th, 1903) Callaway ánd others were unquestionably unable to convey a good and merchantable title to the property, for within that time the sale of the ninety-two acres had been reported to the Court by the trustees of the Slingluff estate and exceptions had been filed which were still pending.

We do not refer to the exceptions to the sale reported by Mr. Vickers as that was excepted to by the city, which action might present other questions as to that, but the city had nothing to do with the exceptions to the sale of the Slingluff property. After considerable testimony was taken, those exceptions were finally heard and on December 29th, 1903, they were sustained, and ⁴⁸² the sale set aside. That was over five months after the expiration of the sixty days. Mayor McLane and Comptroller Heffner (who had been elected before and qualified three days after the acceptance of the option by Mayor Hayes and Comptroller Smith) notified Mr. Callaway on July 20th, 1903, that the Mayor and City Council of Baltitimore repudiated the acts of the commission.

If it be conceded, as we will do for the purposes