Patton v. Graves

McWilriams, J., delivered the opinion of the Court. Can a contract for the sale of realty be enforced if it is made on Sunday? Before that question, the principal one in this appeal, can be answered we first must decide whether the contract was, in fact, made on Sunday. ⁵²⁹ In August 1963, the appellant (Mrs. Patton), an elderly widow, paid $22,000 for a brick dwelling in one of the residential areas of Prince George’s County. It was not long before she began to realize that her purchase was unwise.

The property with a broker early in February, 1964. She wanted $22,000 she found it difficult to obtain employment. Discouraged by diminished income, illness and unpaid bills she listed the property with a broker early in February, 1964. She wanted $22,000 but the broker listed it for $21,950 because, he said, “It sounds better.” Sunday, 1 March 1964, was a cold, damp day.

Mrs. Patton had been taking medication, sedative in nature, for her arthritis and hypertension. Earlier in the day she suffered a chill when she went out to attend her injured dog. During the afternoon, Mr. Gillman, the broker’s sales manager, showed the property to the appellees. They liked it well enough to offer $18,500.

Gillman thereupon prepared a contract, using the broker’s printed form. It is dated 1 March 1964 and recites the receipt of a deposit in the form of a promissory note for $250. Gillman inserted a provision requiring the seller to “pay all of purchaser’s settlement or closing costs including V.A. appraisal and credit check” and another provision requiring the seller to pay a “maximum [of] three points.” Appellees signed this contract while sitting in their car, which was parked in front of Mrs. Patton’s house. They left immediately for their home.

Gillman then brought the contract into the house and presented it to Mrs. Patton. At the time she was not herself, she said, because of the medication and the chill. Meanwhile another of the broker’s .salesmen, a Mr. Ciufolo, had arrived on the scene. Graves (one of the appellees) testified that later in the day Gillman telephoned him saying Mrs. Patton would not sign unless he offered $250 more.

When he refused Gillman said “if * * * [you come] up $150, she * * * [will] sign it.” Graves refused and told Gillman “to forget it.” Gillman then said, according to Graves, “Well, I think she will be in a position to sign it.” Shortly thereafter Gillman again telephoned Graves and told him that Mrs. Patton had signed the contract. According to Mrs. Patton when Gillman came in with the contract Ciufolo said, “This contract stinks!” Then he (Ciufolo) ⁵³⁰ told her to sign it, adding, “We will work out something in the office for you.” She did not read the contract before signing it because Ciufolo was using her glasses. When she awoke around 2 A.M. she put on her glasses and, for the first time, looked at it carefully. Only then, she said, did she realize what she had done.

Included in the record extract is a letter dated 1 March 1964 from the broker to the appellees “enclosing * * * [their] copy of the sales contract.” Graves thought he received the letter on Wednesday, 4 March. It seems to be agreed that this letter was actually written and mailed on Monday, 2 March. On Monday morning, 2 March, Mrs. Patton went to the nearby home of Evelyn Edwards, who like herself was also a nurse, and asked her to call the broker’s office and tell them to cancel the contract. Mrs. Edwards testified she made the call but the broker’s president said the office had no record of such a call.

The Chancellor (Powers, J.) filed a brief opinion stating his reasons for granting specific performance. He held the transaction did not become an enforceable contract until the appellees received their copy of the contract. Since this occurred on the following Wednesday he found it unnecessary to consider the Sunday question. Judge Powers relied on Baker v. Dawson, 216 Md. 478 , 141 A. 2d 157 (1958) which he thought was controlling.

We take a contrary view. In Baker the Dawsons listed 80 acres with a broker to sell for $500 per acre. The broker presented them with a contract signed by Auerbach (Baker’s assignor) which called for the sale of 85 acres for $35,000. To meet objections by the Dawsons the broker, using a pen, changed the price from $35,000 to $42,-000.

A few other changes were made all of which, including the new purchase price, were initialed by the Dawsons, whereupon they signed the contract. The broker took the signed copies to Auerbach, who approved the amended contract and initialed the changes. The broker then notified the Dawsons that the farm was sold. The broker also told the Dawsons that he would have the contract rewritten.

He had it recopied on a typewriter, using the same printed form and incorporating verbatim all of the changes made with a pen. No other changes were made. ⁵³¹ Auerbach and the Dawsons signed the rewritten contract on a Sunday. Chief Judge Bruñe, who wrote the Court’s opinion, said : “The Chancellor held, correctly, we think, that a valid contract was entered into between the Dawsons and Auerbach between June 13th and June 18th. When the Dawsons adopted the amendments to the form of contract submitted by Sigler on June 13th and signed the agreement as amended by him during the conference on that date and delivered the agreement as revised to Sigler for submission to Auerbach, they made a counter offer.

When Auerbach approved the changes (and initialed them) and so accepted the counter offer and notice of his acceptance was communicated to the Dawsons, as was done on or before June 18th, the contract was made.” Id. at 484-85 . It seems to us beyond question that Baker v. Dawson, supra, requires a holding that the contract in the case at bar was made on Sunday, no later than the telephone call from Gillman to Graves advising him that Mrs. Patton had signed the contract originally submitted to her. It is interesting to note in this regard that appellees, in their bill of complaint, allege that they “entered into a written agreement” with Mrs. Patton on “March 1st, 1964.” A similar situation was before us in Miller v. Herrmann, 230 Md. 590, 595 , 187 A. 2d 847 (1963). The broker, in that case, submitted to the Millers a contract signed by Herrmann calling for the sale of their property for $14,000 in cash, settlement to be within 30 days from the date of acceptance.

When Herrmann signed the contract, the word “none” had been inserted opposite the printed language, “Property to be sold subject to an existing tenancy as follows . . .” This would have required the Millers to move just before Christmas, so, at the broker’s suggestion, the words “60 days or sooner” were substituted for “none.” The Millers initialed the change and the broker left with the contract. Within a few hours Herrmann had been notified by telephone of the change which he approved. Judge Hammond (now Chief Judge) said, for the Court: ⁵³² “The sellers and the purchaser had had a meeting of the minds on all the essential terms of a sale and purchase of a piece of real estate, fully expressed in a writing, on the evening of November 13, 1960, when Mr. Herrmann accepted the contract he had previously signed, with the unessential and relatively insignificant modification as to the existing tenancy. This was not a situation where no contract was intended until a final draft evidencing all terms and conditions had been signed or initialled by both sides, as in Binder v. Benson, 225 Md. 456 ; rather, it was intended to be, and was, complete when Mr. Herrmann reiterated his agreement to buy under the slight modification proposed by the Millers.

After that it was too late for them to call off the bargain they had made. Baker v. Dawson, 216 Md. 478, 485 .” We turn now to the Sunday question. The statute provides that “No person whatsoever shall work or do any bodily labor on the Lord’s day, commonly called Sunday; * * Code, Art. 27, § 492 (1957, Cum. Supp. 1966).

Nor shall any person in this State “sell, dispose of, barter, or deal in, or give away any articles of merchandise on Sunday, except * * Code, Art. 27, § 521. It is settled that where the contract which the plaintiff seeks to enforce is expressly or by implication forbidden by the statute, no Court will lend its assistance to give it effect. Goldsmith v. Mfgr's Liability I. Co., 132 Md. 283, 286 , 103 Atl. 627 (1918); 17 C.J.S., Contracts, § 201. No useful purpose will be served by extended comment on the subject of the Sunday laws which, over the years, have generated much work for the courts and unceasing turmoil in the General Assembly.

All that might be said here seems already to have been said in McGowan v. Maryland, 366 U. S. 420 (1961), wherein the decision of this Court in 220 Md. 117 , 151 A. 2d 156 (1959) was affirmed, and in Richards Furniture Corp. v. Bd. of County Comm’rs, 233 Md. 249 , 196 A. 2d 621 (1964). In the circumstances it is remarkable that the question here presented seems never to have been decided by this Court. Perhaps even more remarkable is the fact that there are decisions of trial courts declaring Sunday contracts to sell realty ⁵³³ to be unenforceable, which were not appealed to this Court. Appellant suggests we might find three of those decisions to be persuasive.

We shall consider them, in chronological order, not because they might be persuasive but simply because they show the respect and the importance some trial judges think should be attributed to the dicta in Rickards v. Rickards, 98 Md. 136, 140 , 56 Atl. 397 (1903) and Cook v. Pearce, 160 Md. 434, 439 , 153 Atl. 661 (1931). In Rickards Chief Judge McSherry, who wrote the Court’s opinion, observed: “No executory