Schriver v. Garden Theatre Co.

Oebutt, J., delivered the opinion of the Court. This is an appeal from a decree of the Circuit Court of Baltimore City, dismissing a bill of complaint filed by the appellant in that court against the appellees for the purpose ¹⁵ of procuring the specific performance of an alleged contract made hy the Garden Theatre Company to lease “the front portion of 111 W. Lexington Street” to the appellant for a term of five years from May 31st, 1919, and to enjoin the appellees from interfering with her possession of those premises. The first five paragraphs of the bill of complaint arc as follows: “1. That in the month of December, 1915, this complainant was desirous of opening in the City of Baltimore a hair dressing parlor, and finally decided that she would like space on the second fioor of the building .114 West Lexington Street, the property of the defendant, and after interviewing the tenant of said floor this complainant had Charles H. Boulden, a real estate broker in the City of Baltimore, call on Charles E. Whitehurst, the president of the defendant corporation, to see what arrangements could be made about this complainant occupying part of said second fioor and the possibility of obtaining a lease for said second floor after the expiration of the lease of the then tenant. “2.

That the said Charles ÍL Boulden had a conference with the president of the defendant corporation and reported to this complainant that she might-become the subtenant for part of the second floor of said building, and at the expiration of the lease of the then tenant, the defendant corporation would give her a lease for any period up to five years at the rental of fifty dollars per month. “3. That your petitioner being a widow, with a small family to support, and being possessed of limited means, was not satisfied to invest the small amount of capital she had in her enterprise unless she had assurances in writing from the defendant corporation, and she had the said Boulden write to the president of the defendant corporation, as follows: ¹⁶ “ ‘December 23rd, 1915. “ ‘Charles E. Whitehurst, Esq., “ ‘Pres, of the Garden Theatre Co., “ ‘Park Ave. & Lexington St., “ ‘City. “ ‘Dear Sir: “ ‘Confirming our conversation today, wish to say for Mrs. Laura Schriver, who has leased the front portion of 114 W. Lexington St. from Mr. M. W. Mullen from January 15 to June 1, 1916, with assurances that you will give her an extension of the lease on the front jiortion of this floor at the same rental, $50.00 per month, for any length of time she may decide, say, five years, said lease to include the heat but no light, also that you will give her some display at the entrance, a small case or sign, indicating her business, which is hair dressing, manicuring and massage. Please confirm our understanding by a letter that you will issue to her the said lease at such time she may call upon you for it, as Mr. Mullen does not know yet that he will give up the premises on June 1, 1916. “ ‘An early reply will oblige, “ ‘Yours very truly, “‘(Signed) Charles EL Boulden, Agent.’ And that upon the receipt of said letter by Charles E. Whitehurst, he replied to the same as follows: “ ‘Mr. Charles EL Boulden, “ ‘Baltimore, Md. “ ‘Beplying to yours of December 23rd, wish to state that we have no lease with Mr. Mullen. Our lease is with the Buud Manufacturing Company, but we have no objection to them subleasing to your tenant, Mrs. Schriver, and at the expiration of said lease we will ■ be very glad to have her as a tenant for any length of time she may desire up to five years at $50 per month, said lease to include heat and no light.

Will give her certain amount of display at the entrance in the way of a sign or small case indicating her business, provided, of course, it is submitted to us and our per' ¹⁷ mission obtained in writing. The above agreement must be accepted by her twenty days from the date of this letter. “ ‘Yours very truly, “‘(Signed) C. E. Whitehurst.’ “4. That relying upon the promises and representations set forth in the letter above referred to, this complainant called at the office of the company the day following the receipt of the letter by Boulden, and had a personal interview with its president, Charles E. Whitehurst, whose office was located in the New Theatre Building, and discussed with him the matter of the proposed lease; that she would accept the proposition he had made in writing, and thereupon the said Whitehurst accompanied this complainant to the Garden Theatre Building and assigned to her the advertising space and display she was to have at the entrance of said building, as set out in the letter to Boulden above mentioned; that your complainant accepted the space, ordered her sign painted and immediately moved in and had her equipment installed. “5. That the said Whitehurst, at the conference with your complainant above referred to, told her that he would notify her when the Ruud Manufacturing Company’s lease terminated; that they had an option of renewal of three years from June 1st, 1916, hut if they did not exercise their right to renew, under the option, she could have her lease, and if they did renew, she would be given a lease at the expiration of the renewal period, and, that whatever was done or to be done, he would promptly notify her, all of which statements this complainant entirely relied upon, and as a result thereof expended large sums of money in fitting out said second floor.” Then follow other allegations, showing that the complainant. paid rent regularly until April 4th, 1919, when she was notified by the Garden Theatre Company that it had notified Mullen, “agent of the Ruud Manufacturing Company, that ¹⁸ his lease of the second floor of the Garden Theatre Building will be terminated on May 31st, 1919”; that that was the first notice she had received that the “lease on said floor was at an end” and that she at once placed the matter in the. hands of her attorney who demanded the execution of the lease h> her, but that although she was at all times ready and willing to execute the lease the defendant refused to execute it, and that subsequently a judgment for the restitution of the premises was entered against her, in a proceeding instituted for that purpose by the Garden Theatre Company in the People’s Court, of Baltimore City, and that the Sheriff of Baltimore City was about to execute a writ of possession on that judgment.

To that bill the defendants both answered and demurred. Thomas E. McHulty, the Sheriff of Baltimore City, after demurring generally to the bill, disclaimed any knowledge of the facts set up, in it, or any interest in the controversy other than the due execution of the “writ or mandamus” in accordance with the duties of his office. The Garden Theatre in its demurrer to the bill assigned the following grounds of objections: “(1) That the plaintiff has not stated in her bill such a case as entitles her to any relief in equity against the defendant. “(2) That the bill of complaint does not disclose any valid and enforceable agreement to lease between the plaintiff and this defendant. “(3) That the fourth section of the Statute of Erauds is a bar to the relief sought by the plaintiff in her bill, and is urged and relied upon by this defendant as a defense, notwithstanding any statement contained in this answer or in the bill of complaint. “(4) That the bill of complaint does not disclose that the plaintiff is entitled to any right or interest in respect of the property described in the bill. “(5) That the plaintiff has been guilty of laches in the assertion of her alleged rights’ to relief in this court. ¹⁹ “(6) That in the ejectment case of this defendant against this plaintiff, filed in the People’s Court of Baltimore City on August J4th, 1920, and finally determined in the Baltimore City Court on appeal on March 1th, 1921, when judgment was rendered in favor of this defendant for the restitution of the premises described in the bill of complaint, the rights asserted by the plaintiff in the present suit were finally determined and became and are res adjudicatei.” It further answered the allegations of fact in the bill of complaint, by denying the existence of the contract set up by the complainant. Evidence relating to the issue of fact thus made was taken orally before the court, which, after the case had been argued, on July 25th, 1921, passed the decree dismissing the bill of complaint, from which this appeal was taken.

The, principal and indeed, the crucial and pivotal question upon which this case turns, is whether it appears from a clear preponderance of all the evidence in the case that there was any agreement between the Garden Theatre Company and the appellant under which the company agreed to lease to the appellant the qrremises in question for five years from May :11st, 1919. Before examining the proof in the case hearing upon that question, we will refer briefly to the principles, by which the quantity and the quality of proof which the complainant was required to product to meet the burden placed upon her in this case is to he measured. In Miller s Equally, sec. PAO, it is said: “In respect to the character of proof required to establish a contract sought to be enforced, it is the duty of the plaintiff to make out the cast set up in the bill with such distinctness, certainty and legality in all its parts that the court may have no difficulty in deciding exactly what the contract was.

The proof must be clear and explicit, leaving no room for reasonable doubt, and must in every essential particular correspond wdtli the terms of the contract set up in ²⁰ the hill.” That statement of the law is so sound and so well supported by authority, and the principles laid down there have been so often stated by this Court that further iteration of them is not needed. The contract which is the basis of this suit must be found in the correspondence between Charles E. Whitehurst and Charles N. Boulden, which was introduced to prove an offer, and in the testimony of witnesses offered for the purpose of showing an acceptance of that offer. The offer was clear enough and expressed in this language: “Our lease is with the Ruud Manufacturing Company, but we have no objection to them sub-leasing to your tenant, Mrs. Schriver, and at the expiration of said lease we will be very glad to have her as a tenant for any length of time she may desire up to' five years at $50 per month, said lease to include heat and no light.” But it was made upon the expressed condition that it be accepted within twenty days, and the inquiry is therefore further narrowed to ascertaining whether there was such an acceptance. Boulden had in his letter to Whitehurst asked for a lease for a term “of say five years” beginning at the expiration of Mullen’s lease.

Whitehurst in his reply offered to lease the property for “any length of time up to five years, at the expiration of its lease to the Ruud Manufacturing Company.” To support the complainant’s right to a specific performance of the contract in this case the evidence must show, then, (1) when the Ruud lease terminated and (2) that the appellant accepted the offer of a lease for five years from that time. The most definite and convincing evidence in the case as to when the Ruud lease terminated is found in the original lease from E. A. Stehl & Son to the Ruud Company, under which the Ruud Company held the property, which shows that the term expired on May 31st, 1915, and a notice from the Ruud Company to the Garden Theatre Company that it would surrender the premises on May 31st, 1915. The lease contained a provision that at the expiration of the original ²¹ term it could be renewed for a period of five years upon serving a written election to so extend it upon the landlord. The evidence shows that this notice was never given, but on the other hand it appears that the Ruud Company declared it would surrender the promises at the end of the