Perlmutter v. Bacas

Hammond, J., delivered the opinion of the Court. Perlmutter contracted to buy a tract of land in Montgomery County from John Bacas, intending to subdivide it. At the suit of Bacas, the chancellor decreed that Perlmutter should perform specifically. We find that Bacas’ bill should have been dismissed because a mistake as to the material fact that adequate access roads were available induced Perlmutter to sign the contract.

Perlmutter asked Hastings, a real estate broker, to find out if the tract was for sale. Hastings knew that Aris Bacas, also a realtor, acted for his brother John and went to him and was given a sketch of the land. Hastings prepared a contract which the parties signed, calling for the sale and purchase of the “Bacas tract of Seven and Eight-Tenths acres ⁴⁰⁹ at Coquelin Parkway as shown on attached plat and made part hereof.” The plat made a part of the contract was the sketch given Hastings by Aris Bacas. The contract called for a purchase price of $4,500 an acre, the actual acreage to be determined by a survey.

The vendor agreed to pay the regular commissions to Hastings “his agent.” The plat made a part of the contract showed the Bacas land outlined in red. The interior was marked out in lots, blocks and streets. Defined on the plat is what appears to be a street called “Farmington Drive”, abutting part of the southern section of the area outlined in red. Also shown was another street, unnamed on the plat, which ran in an arc between two sections outlined in red, and eventually intersected Farmington Drive.

This street is referred to by the parties as “Farmington Court” and is so marked on a recorded plat introduced in evidence. Hastings testified that the unnamed street was described to him by Aris Bacas as a right-of-way that “would afford proper access to develop the property” shown on the plat made a part of the contract. Hastings said that from the plat he figured Farmington Court to be a fifty-foot right-of-way, and from what Bacas had told him, assumed it to be of record. Although Bacas denied telling Hastings that Farming-ton Court was a fifty-foot right-of-way, he did not deny he told him that there was proper access to the land.

Bacas says he did not put the red lines on the plat, although he concedes that they were on there when the contract was signed and admits that he gave the plat to Hastings to show the outlines of the land his brother still owned, the residue of a much larger tract. Hastings told Perlmutter that there was access to the property by a fifty-foot right-of-way and indicated to him “that there would be access to the land suitable for constructing the necessary road in order to develop the land, based on the plan which was supplied * * * by Mr. Bacas and based on * * * conversation with Mr. Bacas.” Perlmutter said he read the plat as showing Farmington Court and Farmington Drive to be of sufficient width to afford proper access to the property as he planned to develop ⁴¹⁰ it, and that it was on the basis of the plat that he entered into the contract. Farmington Drive, along its length abutting the Bacas property, actually is dedicated to public use for a width of only twenty-five feet. Farmington Court has a width dedicated to public use of fifteen feet only, although Aris Bacas offered to convey, as part of the land covered by the contract, an additional fifteen feet which he owned but which at the time of the making of the contract was thought to be owned by his brother, the vendor.

A land planner and civil .engineer, whose qualifications were acknowledged and stipulated to, identified a proposed plan of subdivision of the property, which he had prepared, and a letter from the chief planning engineer of the Maryland-National Capital Park and Planning Commission, in which it was stated that the proposed plan had been disapproved because of a lack of adequate access, due to the insufficient right-of-way of Farmington Court and Farmington Drive. The parties agree that under the applicable law (Montgomery County Code, 1955, Secs. 93-6 through 93-19), the minimum permitted width of such roads is sixty feet and that under Sec. 93-18 (b) (2), the County Manager may waive that minimum where “the proposed right of way connects with an existing right of way of substandard width which was lawful when established.” The record indicates that had Farmington Court and Farmington Drive been fifty-foot rights of way, a waiver from the County Manager and approval of the Maryland-National Capital Park and Planning Commission would have been forthcoming to make them available for access to the property. The engineer testified that, as the situation was, the access could only be from another road named Coquelin Branch, but that the expense of constructing such a means of access would be “prohibitive” and make development impracticable. He said further that even if Farmington Court were made a dedicated road of thirty feet in width, as Aris Bacas had offered to do, the requirements of the County would not be met and the authorities would not give their approval.

The title examiner, a witness for Bacas, ⁴¹¹ said that Perlmutter