Pollin v. Perkins

Bruñe, C. J., delivered the opinion of the Court. This is an appeal by Morris Pollin alone from a decree against him and Jennie Pollin, his wife, for the specific performance of a contract or contracts, consisting of an original agreement and amendments or modifications thereof below referred to, for the sale of certain real estate at Greenbelt, in Prince George’s County. The land in question was owned by Jennie Pollin and by one Eugene M. Howerdd, Jr. as tenants in common, each owning a one-half undivided interest. Pollin’s sole claim of interest in it was his inchoate right of dower, the statutory “husband’s dower” under Code (1957), Art. 45, § 7.

Mr. Howerdd and his wife were joined as parties to the suit, but as they were apparently at all times ready and ⁵³⁶ willing to go through with the contract, as revised, and did so before the case was tried, the decree was against the Pollins only. Mrs. Pollin did not appeal. The property in question consisted initially of approximately four hundred acres, a part of which (about thirty-eight acres) had been granted to the State Roads Commission for a right of way and was excluded from the tract covered by the contracts here involved. All of this land had originally been zoned R-R, “Rural Residential”, but some 280 acres or more had been rezoned during the Pollin-Howerdd ownership as “Industrial”, being intended for such use in some project that fell through.

This part of the tract comprised, it was agreed, about two-thirds of the property covered by the contracts in issue. The initial contract of sale was dated June 16, 1958, was finally executed by all parties by July 9, and was almost immediately amended by an agreement dated July 9, and finally executed by all parties on July 12, 1958. Both the Pollins and both the Howerdds joined in the execution of these documents and they were also duly signed by Edward M. Perkins, the purchaser, who is the plaintiff-appellee in this suit. The initial contract and its nearly simultaneous amendment may be treated as a single instrument for purposes of this opinion and will be referred to collectively as the “original contract.” It provided, among other things, for an aggregate purchase price of $595,000, an initial deposit of $5,000, a further deposit of $20,000 within 60 days from the date of acceptance by the sellers and for settlement within 180 days from the date of acceptance.

Failure of the purchaser to make the $20,000 deposit within 60 days would result in forfeiture of the initial deposit and termination of the contract. Soon after the execution of the original contract, Perkins, who was in the business of building houses, learned that under the Industrial zoning classification then applicable to 280 acres or more of the tract, that portion of the property could not be used for residential construction. The sellers were apparently also unaware of this restriction. Negotiations were instituted between Perkins, the real estate brokers and the ⁵³⁷ Pollins 1 to provide for an extension of time for the $20,000 deposit and an extension of time for settlement, so that the zoning situation could be met.

At this time all participants in the negotiations were eager to find a solution and to have the contract carried into effect. There is some dispute as to whether these negotiations began before or after Mr. and Mrs. Morris Pollin left for a trip to Europe, from which they returned about October 16, 1958. It seems to make no real difference on this appeal which version is correct. During the absence of Mr. and Mrs. Morris Pollin in Europe two documents were executed as a result of the negotiations.

One was a letter to Perkins signed by Abe Pollin as “Agent for Jennie Pollin and Eugene M. Howerdd, Jr., Sellers,” extending the time for the $20,000 deposit to September 17, 1958, which was “acknowledged” by Perkins. This will be referred to as the “extension.” The second was a document purporting to amend the original agreement. It was signed by Perkins, as Purchaser, by the real estate brokerage firm, and by Abe Pollin and Jack Pollin as “Agent for Jennie Pollin and Eugene M. Howerdd, Jr., Sellers.” This we shall call the “amendment.” The first draft thereof was prepared by one of the real estate agents, and it was revised to some extent prior to final execution by Perkins and by Washington counsel for the Pollins. Abe and Jack Pollin are sons of Mr. and Mrs. Morris Pollin and have been associated in business with their father.

The amendment provided: first, that the settlement date should be extended to not later than March 15, 1959 (instead of January 2) ; second, that the purchaser should have the right to apply for rezoning to residential use of any part of the property prior to settlement, that “all applications for rezoning shall be submitted first to the sellers for their consideration and approval, and seller to approve any reasonable application”; third, that “[u]pon approval by the sellers of the zoning applications the sellers shall sign the same, however, purchaser shall pay all costs of said rezoning”; fourth, that the purchaser should immediately deposit an additional ⁵³⁸ $20,000 with the real estate agent, and that the entire deposit ($20,000 plus the original $5,000) should forthwith be delivered to the sellers; and fifth, that if the purchaser did “not secure said rezoning, the purchaser, at his option, may terminate this contract,” in which event the $25,000 deposit should be paid over, $7,500 to the sellers, $2,500 to the real estate agents and $15,000 to the purchaser. At the end of October, one of the real estate agents left at the office of the Pollins (the appellant and his sons) an application for rezoning for apartment use the 280 acres or more previously zoned as industrial. This was the first time the Pollins had known that Perkins intended to build apartments rather than houses, a fact which Perkins had not cared to disclose to them previously. The Pollins were apartment house developers themselves and it is not beyond the realm of possibility that they wished to participate in any such development of this property or that they did not relish Perkins’ competition.

Whether for either of these reasons or because, as they said, they thought the application unreasonable, or perhaps for all three reasons, two of the younger Pollins became quite excited over the matter. Both sides agree that there was some discussion of a further agreement or understanding between the Pollins and Perkins before the sellers signed the application and delivered it to Perkins for filing, though Perkins claimed that its execution and delivery were promised, regardless of whether any such agreement might be reached. The Pollins claim that the proposed application jeopardized performance of the contract and risked “freezing” the zoning of the property for a year, if the application were denied. Perkins said that he had been advised by his counsel and land planners to “ask for the moon” and he took the position that if he did not get all that he asked, he might get at least some part of the property rezoned.

It appears that the Pollins did not then communicate their fears to the Howerdds, but submitted the application to them and obtained their signatures. The Pollins claim that Perkins agreed to give them some share in the real estate or in the venture if the application were granted in whole or in part. Perkins says he agreed only to give them an opportunity to participate in the financing, ⁵³⁹ should he later find himself in need of further assistance along that line. Both Mr. and Mrs. Morris Pollin did sign the rezoning application and it was delivered to Perkins.

There was no written agreement as to any terms or conditions upon which it was so executed and delivered. The application was subsequently granted in full by the Board of County Commissioners. Abe Pollin testified that after the rezoning had so been approved in full, he then informed the Howerdds of the agreement which the Pollins claimed to have made with Perkins and that it was his intention to include the Howerdds in the benefits of that agreement. At the same time he sought (unsuccessfully) to enlist the support of the Howerdds in refusing to convey and in seeking to force Perkins to comply with the alleged oral agreement.

The Chancellor held that the appellant had adopted both the interim extension of September 6, 1958, and the amendment of September 12, 1958, and we think that he was right in so holding. Mr. Pollin testified that he was informed of these documents on his return from Europe in October. As to the extension, his testimony was that it was “perfectly all right, whatever they [his sons had] done.” As to the amendment, he was asked: “You never questioned this agreement, did you?” Pie replied: “Never did, no, because we know we signed it.” A recognition that his sons were his agents with regard to these documents (even though they had not so represented themselves) and that he had ratified their actions presumably motivated Mr. Pollin’s acknowledgment of these documents as his agreements. His recorded testimony adopting them is, however, of itself sufficient to satisfy the requirements of the Statute of Frauds.

Trossbach v. Trossbach, 185 Md. 47, 52-53, 55 , 42 A. 2d 905 ; Sealock v. Hackley, 186 Md. 49 , 45 A. 2d 744 . We quote from the latter ( 186 Md. at 52-53 ) : “As stated in Trossbach v. Trossbach, 185 Md. 47 , 42 A. 2d 905 , the admissions of a party in the form of testimony constitute sufficient ‘memoranda’ or ‘writings’ under the Statute of Frauds, for recorded testimony is regarded as equivalent to signed depositions. * * * Admissions of a party in testifying, while evidence in form, are in essence not ⁵⁴⁰ mere evidence, but make evidence against him unnecessary.” This was no case of mere passive acquiescence on the part of the holder of an inchoate dower right, as in Alvey v. Alvey, 220 Md. 571 , 155 A. 2d 491 . In reaching the conclusion that Morris Pollin did adopt these documents and is bound by them, we do so on the basis of the Trossbach and Sealock cases,