Realty Improvement Co. v. Unger

Adicixs, J., delivered the opinion of the Court. This appeal is from a decree for specific performance of a contract of sale between appellant, the vendee, and appellee, the vendor, of about six. acres of land in "Baltimore County, and two small lots adjoining the same. The appellant corporation is the owner of a real estate development in said county known as “Roscmont,” and the appellee the owner of adjoining land on which are two wells of water, one an artesian and the other a dug well. Lacking a water supply for its development, appellant entered into negotiations with appellee with a view to purchasing six acres of his land and two small parcels containing these wells, and on July 26th, 1920, the following option agreement was executed by the parties; after appellant’s manager, Fletcher W. Moore, according to his testimony, told appellee: “Wo would require the water thoroughly tested, both as to quantity and quality if we took it because if we bought the land at all we would buy it exclusively for the reason he had a water supply there; that we didn’t want the land at all”; and appellee re]died “the water was fine and had had it tested a number of times and also made the remark that it. wasi considered as good as Chattolanee water”: “This Agreement entered into on above date by and between the Realty Improvement Company, party of the first part, and Otto F. Unger, party of the second part: “That, for and in consideration of the sum of one dollar paid by first party to second party, the receipt whereof is hereby acknowledged, it is hereby mutually agreed that first party shall have the right to put men and machinery on second party’s land to test certain wells, and if same prove satisfactory to first party, ⁶⁶⁰ then first party will buy six acres of land in the Thirteenth District of Baltimore County, lying partly on Annapolis Road, south of English Consul Estate and north of the Brian Estate property, now known as Rosemont.

Included in said sale shall be two separate pieces of ground, one approximately ten by twelve feet in size on which is erected a pump house and tank and the other ten by ten feet which contains a deep well six inches in diameter. ■ “This proposed transfer shall also convey to first party the permanent right to maintain the water pipes now under ground and relay and repair same if necessary; the price to be paid second party for said six acres of land and the two smaller pieces containing wells and pumphouse, etc., shall be the sum of seven thousand dollars, payable two thousand, three hundred and thirty-three dollars and thirty-four cents down on the first party’s approval of title with six per cent, interest on unpaid balance computed and payable half-yearly hereafter, secured by first mortgage on the property aforesaid. “The balance of principal is payable two thousand, three hundred and thirty-three dollars and thirty-three cents one year after date of transfer and two thousand, three hundred and thirty-three dollars and thirty-three cents two years after date of transfer. “First and second parties are to mutually agree upon release clause to be placed on the individual lots plotted or to be plotted, which release price shall aggregate the sum of four thousand, seven hundred dollars; this sale to be subject to all the outstanding agreements to furnish water heretofore entered into by the party of the second part, and the party of the second part reserves the right and privilege to connect up with the water system or wells now constructed or to be constructed by the party of the first part and to have the use thereof for himself for the property still belonging to him at English Consul Estate and for any future purchasers of the said property at the same rates and terms extended to other customers of ⁶⁶¹ the said party of the first part; the party of the first part hereby agreeing to continue in operation the said water system. “Provided, however, that only four houses are to be supplied with water under this agreement and that the rate for same shall he $1.50 per month, payable half-yearly in advance. Service may be discontinued for non-payment of rates as specified. “To all of which we, the parties of first and second parts, hereby agree and have this day and year first above written hereby set our hands and seals. “The Realty Imp. Oo., “(Seal) By Chas. H. Steffey. “Otto P. Unger.

(Seal)” In pursuance of the above agreement appellant proceeded to have the water from the wells analyzed by the State Board of Health and by Penniman ,& Brown. There seems to have been considerable delay in getting reports on the quality of the water, and appellee, desiring to get married and needing money for his wedding trip, and expecting to be away for a considerable time, urged appellant to conclude the matter and execute a contract of sale so that he might have the use of the cash payment of $500. According to* appellant’s testimony, appellee said he didn’t understand why the settlement should be held up while waiting for an analysis of the water, as lie had a report from the State Board of Health showing that it was good drinking water. Appellee denies that he made any representations as to the quality of the water prior to the signing of the option agreement, or that the question of water was discussed at the time of the execution of the contract of sale.

He testified, “the only time that water came into the proposition from the time 1 had anything to do with the Moore Realty Company (agent of appellant) or Steffey (president of appellant corporation) was along about the middle or later than the middle of August, when 1 came into' Mr. Steffey’s office and asked him whether be had received his report from Crook & Company ⁶⁶² yet; and lie put me off and put me off, and lie told me ‘no’ at that time.. He said, ‘We have some reports here that show this water- bad,’ and I said, ‘I haven’t anything- to do with that.’ I said, ‘1 don’t see where I have anything to do with the water analysis.’ He had some reports from his friend Crook. He pulled out a file like, and I told him I didn’t see where I had anything to do with that. I said, ‘As far-as that goes, I have a little certificate which shows the water is fit to drink.’ ” The contract of sale was as follows: “This Agreement, made this 31st day of August, 1920, by and between Otto E. Unger, unmarried, party of the first part, and The Realty Improvement Company, a body corporate, party of the second part: “Whereas, The parties of the first and second parts entered into a tentative agreement of sale of the hereinafter described property; “Whereas, The said The Realty Improvement Company has definitely decided and agreed to purchase the said property according to the terms and agreements set forth in this agreement; “Now, therefore, this agreement witnesseth, That the said party of the first part doth hereby bargain and sell unto the said party of the second part the following described property: “Being all that lot of ground situate and lying and being in Baltimore County, Maryland, and particularly described as follows: “Beginning at the beginning of said whole parcel of ground conveyed by C. H. Unger to Otto E. Unger by deed dated February 18th, 1910, and running thence on the outlines thereof south 16% degrees west 49 feet to a stone, south 55% degrees west 10% perches to a stone 25, north 66 degrees west 32 perches, south 53% degrees west 10 perches, north 42% degrees west 44% perches to the centre of Annapolis Road; thence in the centre thereof north 8 degrees east 52 feet to the centre of a 30 foot street; thence in the centre thereof, south 61% degrees east 500 feet, south 51% ⁶⁶³ degrees east 310 feet; tlience north 38% degrees degrees east 225 feet to intersect the south 54 degrees 31 minutes east 977-foot line of the whole tract, and thence on the same south 54 degrees 31 minutes east 532 feet to the beginning, containing 6 acres of land. “Together with the permanent right to use any portion of said thirty-foot street. “And also including two separate pieces of ground, one approximately ten by twelve feet in size on which is erected a pumphouse and tank, and the other a piece of ground ten by ten which contains a deep well six inches in diameter, and including also the ^permanent rights to the party of the second part, The Realty Improvement Company, to maintain the water pipes now under ground and relay and repair the same as necessary; “At and for the price of seven thousand dollars ($7,000.00), of which five hundred dollars ($500.00) have been paid upon the signing of this agreement, the balance to be paid as follows: “One thousand, eight hundred and thirty-three doldolars and thirty-four cents ($1,833.34) within sixty days from the date hereof, and the balance to be secured by a first mortgage on said property, interest at six per centum computed and payable half-yearly hereafter ,from date of said mortgage; the principal of said mortgage is to be payable as follows: “Two thousand, three hundred and thirty-three dollars and thirty-three cents ($2,333.33) one year from the date of said mortgage, less any amount paid on account of releases as stated herein, and an equal amount two years from the date thereof, less any amount paid on account of releases as stated herein; the parties of the first and second parts are to mutually agree upon a release clause in said mortgage providing for the release of the individual lots plotted or to be plotted, which release prices shall aggregate the sum of four thousand, seven hundred dollars ($4,700.00), and which payment shall be applied on ⁶⁶⁴ account of principal of said mortgage; and it is hereby mutually agreed and understood that the said party of the second part is to arrange to have water furnished to the houses upon the property heretofore sold by the party of the first part or now owned or which may be sold by the party of the first part, the houses in all not to exceed the number of four, on the same terms and in the same manner as other houses and lots in the development of .‘Rosemont’ receive or will receive water.

This contract is entered into subject to the said Otto E. Unger arranging with the purchaser of property heretofore sold by him to enter into the water system of fRosemont’ on the same terms and conditions as other property holders in ‘Rosemont.’ “And upon payment of the unpaid purchase money and the execution of the mortgage aforesaid the said Otto E. Unger agrees to convey the property by a good and merchantable title to the said The Realty Improvement Company at the time of the execution of said purchase money