Pumphrey v. Kehoe

Barnes, J., delivered the opinion of the Court. The question in this appeal is whether or not certain parol evidence was admissible to establish an alleged express assumption by three of the appellees, Holly Hill Associates, a limited partnership and Robert F. Koch and Daniel J. Kehoe, the limited partners, as purchasers of land under a written contract, dated July, 1964, with the owner, Daniel Tessitore, of an alleged obligation by Mr. Tessitore to pay an additional $6,600.00 to the appellants, Carolyn E. Pumphrey et al., sellers of the land to Mr. Tessitore, under a written contract of January 7,1963, in the event the land was rezoned to the R-18 (Low Density, Multi-Family Residential) zone. Most of the facts are not in dispute. Prior to January 7, 1963, the appellants and plaintiffs below, Carolyn E. Pumphrey et al., owned the subject property, a 1.26 acre tract, bounded on the north by relocated Maryland Route No. 4, on the east by Pine Street and on the south by ⁴⁹⁸ Cross Street in Spaulding District, Prince George’s County.

The subject property was adjacent to a larger tract owned by Mr. Tessitore, one of the defendants below and one of the appellees in this Court, and George J. Panagoulis. The two tracts were separated by Cross Street. By a written contract, dated January 7, 1963, Mr. Tessitore agreed to purchase the subject property for $12,600.00 if rezoned to the R-18 zone, but if not rezoned, the purchase price would be $6,000.00. The plaintiff sellers agreed to join in an abandonment of Cross Street.

This contract provided that the purchaser Tessitore would apply immediately for the R-18 rezoning upon acceptance of the contract. Settlement was to be made within 120 days from the contract date and was held on October 11, 1963. $6,000.00 was to be held in escrow pending the rezoning and the settlement sheet indicates that this amount was so held in escrow by the Title and Escrow Corporation. On March 29, 1964, Mr. Tessitore executed a written contract with Holly Hill Associates (Holly Hill) to sell the property to that limited partnership for $20,000.00, “contingent upon the sellers [Mr. Tessitore and his wife, Dashia] obtaining R-18 zoning on the entire property on or before four months from date; settlement under this contract shall be held within sixty days after said zoning change becomes final and irrevocable.” The County Commissioners for Prince George’s County, sitting as the District Council, denied the requested rezoning on July 10, 1964. Thereafter, on July 16, 1964, Mr. Tessitore executed a new written contract to sell the subject property to Holly Hill for the “Total price” of $8,500.00, the new contract containing a specific provision, as follows: “Sellers agree to convey to purchasers all their right, title and interest in the property, including the right to initiate and prosecute an appeal in conjunction with the application to re ⁴⁹⁹ zone the property to R-18, which application was denied by the Commissioners of Prince Georges County on June 17,1964. “Sellers agree to join with the purchasers, if requested by them, in any action necessary to pursue the said appeal.” In the printed portion of this contract of July 16, 1964, was the following provision: “This contract, made in triplicate, when ratified by the seller contains the final and entire agreement between the parties hereto and they shall not be bound by any terms, conditions, statements or representations, oral or written, not herein contained.” There was no mention in this written contract of July 16, 1964, of the contract of January 7, 1963, of any of its provisions, or of the $6,000.00 held in escrow.

The only provision in the contract of July 16,1964, in regard to the amount of its consideration was that already indicated, i.e., “Total price of property Eight Thousand Five Hundred Dollars ($8,500.00),” which amount the purchaser agreed to pay in “cash at the date of conveyance, of which sum this deposit [$2,000.00] shall be a part.” Settlement under the contract of July 16, 1964, was held on August 6, 1964, the balance of the consideration of $8,500.00 being paid by the purchaser. Apparently, a deed for the subject property was delivered by the sellers to the purchaser and duly recorded. On December 31, 1964, the Circuit Court for Prince George’s County, where the zoning appeal was pending, passed an order directing further hearings on the rezoning application. This was done.

The County Commissioners again denied the application, but the Circuit Court, on October 23, 1965, reversed this action of the County Commissioners and granted the requested rezoning subject to a 150 foot setback from Pine Street. Carolyn E. Pumphrey et al. filed an action against Mr. ⁵⁰⁰ Tessitore, Holly Hill and Messrs. Koch and Kehoe in the Circuit Court for Prince George’s County. In their third amended declaration, they alleged the terms of the contract of January 7, 1963, (attaching a copy as a part of the declaration) and that the purchaser Tessitore had taken title paying at the time of settlement on October 11, 1963, the sum of $6,000.00.

They further alleged that Tessitore had refused, notwithstanding numerous requests, to pay “the balance of the purchase price.” It was then alleged that Tessitore had entered into the contract of July 16,1964, with Holly Hill, a partnership and its principals, Messrs. Koch and Kehoe, which the plaintiffs construe to be an assignment of all the right, title and interest that Tessitore had “as well as all liabilities going therewith.” It was then alleged that Holly Hill and Messrs. Koch and Kehoe “had full knowledge of the condition of” the contract of January 7, 1963, and took the conveyance under the contract of July 16, 1964, “with all of the rights as well as liabilities of the original Agreement.” The contract of July 16, 1964, was attached as a part of the declaration. It was further alleged that among the conditions and as part of the consideration for the conveyance to Holly Hill and Messrs.

Koch and Kehoe was the right “to be conveyed” to the defendants, Koch and Kehoe, “to pursue the zoning appeal * * * for the purpose of obtaining the zoning originally contemplated between the Plaintiffs and Daniel Tessitore.” The appeal “was taken and after the conveyance of title to the said property by Daniel Tessitore to Koch and Kehoe, the zoning was successfully obtained as requested.” The damages claimed were $6,000.00 with 6% interest from October 11,1963, and costs. The defendants, Holly Hill and Messrs. Koch and Kehoe, filed the two general issue pleas in assumpsit — that they were never indebted as alleged and never promised as alleged — and a special plea of limitations, which apparently was not further pursued in the case. At the trial of the case before Judge Digges (then ⁵⁰¹ Chief Judge of the Circuit Court for Charles County and now a Judge of this Court), Mr. Tessitore testified that Mr. Panagoulis had done most of the negotiating with Mr. Koch in regard to the purchase of the subject property while the rezoning was pending.

Mr. Tessitore also testified that he had suggested to Mr. Koch that he purchase the subject property; that Mr. Panagoulis had a few conversations with Mr. Koch and was authorized to act for the sellers; that Messrs. Koch and Kehoe had seen the contract of January 7, 1963, and that the contract of July 16, 1964, had come about as a result of negotiations by both Mr. Panagoulis and himself. At the trial, Mr. Panagoulis did not appear and the parties stipulated that his deposition would be used in lieu of his contemplated testimony in court, without, however, waiving objections to the admissibility of his testimony on the merits. We will later consider certain specific testimony of Mr. Panagoulis.

Mr. Koch, in his testimony, denied that he had the conversations with Mr. Panagoulis, which we will consider later, and in no way acknowledged any responsibility for the payment of any additional $6,000.00 to the plaintiffs in the event that the rezoning was granted and asserted that the obligation of Mr. Tessitore, if any, to others was not part of Mr. Koch’s agreement with Mr. Tessitore. We now come to the specific testimony of Panagoulis in regard to the admissibility of which, the decision in the present case turns. After testifying that Mr. Koch was advised by Mr. Panagoulis that Mr. Tessitore “had an additional obligation of $6,000.00 to pay if the zoning was obtained,” and that, after discussing with Mr. Tessitore subsequent to the denial of the proposed rezoning by the County Commissioners, the possibility of a sale of the subject property to Koch and Kehoe, concerning which he spoke to Mr. Koch, the testimony of Mr. Panagoulis was, as follows : Mr. Koch “agreed to an $8500 figure for the ⁵⁰² land; he then asked me if Danny would give him the right to appeal the commissioners’ action. I then informed him I would have to talk to Danny about it, but if he did he would also have to assume, to be granted the right to appeal, he would also assume any liabilities that' went along with the contract. “Q. Did you refer specifically to the additional $6,000 he paid to Pumphreys?

A. It’s my recollection, I believe I did. “Q. Do you have any recollection of his reaction to your discussion? A. None whatsoever. “Q. You don’t know if he acknowledged that $6,000 debt or he did not, or what he said about it? A. No, I don’t know; I’m sure he was aware that there was an obligation. “Q. Because you had so informed him?