Sears v. Polan's 5¢ to $1.00 Store of Annapolis, Inc.

Finan, J., delivered the opinion of the Court. The vendors appeal a decree of the Circuit Court for Anne Arundel County in an equity suit, in which two cases were consolidated in one, which dismissed their bill seeking rescission ⁵²⁷ of a contract for the sale of real estate and ordered them to specifically perform, as prayed in the purchaser’s bill of complaint. We affirm the lower court. On July 25, 1964, Bernard W. Sears and his wife contracted for the sale to Polan’s 5^ to $1.00 Store of Annapolis, Inc., for $100,000, of “40 acres, more or less, lying on the South side of Best Gate Road, on the East side of the abandoned B & A Railroad right of way, being a portion of the property described among the land records of Anne Arundel County in Liber 775, folio 189.” The evidence showed that at the time of the contract the Searses owned a parcel of ground at that location in excess of 61 acres.

The agreement provided that “The exact area sold is to be determined by a survey to be ordered and paid by the Buyer and a copy thereof made a part of this agreement, * * *Upon acceptance of the contract, the buyer was given 90 days to conduct tests on the land if he so desired, and 10 days after that to submit an application for rezoning of the tract. However, the buyer was given the right to waive the rezoning condition to the contract. Settlement was to be within 30 days after final determination by the zoning authority. A separate agreement, executed the same day and made a part of the sales contract, recited that the parties had agreed upon a price of $2,500 per acre and that if the survey should produce a deviation from the 40 acres purported to be sold by the primary contract, adjustments would be made to the $100,000 purchase price to the extent of $2,500 for each acre of variance.

The vendors’ broker was Carlton L. Foster, Inc., whose authorized agent, Ronald C. Paape, exclusively represented the vendors in the negotiations preceding the contract. In accordance with the agreement, the buyer drew a $5,000 check payable to Carlton L. Foster (individually) as an escrow deposit, and left it with Paape, who neither deposited it in a bank nor informed the vendors of its existence. On October 20, 1964, for a stated consideration of one dollar, Polan’s, Inc., assigned its rights under the Searses’ contract to the broker’s representative, Ronald C. Paape, and on July 7, 1965, Paape assigned the contract to The Paape Development Company, Inc. These assignments were made without the knowledge of the vendors. In fact, when the buyer’s at ⁵²⁸ torney sent the rézoning application to the Searses for signature as legal owners of the tract, the named purchaser on the application was still Polan’s, Inc., even though the contract had' already been assigned to Paape.

The application was filed with the county on October 26, 1964, along with a survey map, prepared by J. R. McCrone, Jr., Inc., which, indicated that the Searses’ tract was comprised of three separate parcels, and that the two unimproved parcels added up to 37.7 acres. When the rezoning application was submitted, Anne Arundel County was in the process of converting from county com-' missioners to a charter form of government. As a result, many zoning applications,- including the Polan’s, Inc. application, lay. dormant. After several delays in obtaining rezoning, the purchaser decided to waive the rezoning condition, and by letter' dated November 9, 1965, the attorney for “the Paape Development Company, Inc., assignee of Polan’s 5 Cents to $1.00 Store of Annapolis, Inc.,” informed the vendors that it was ready to settle on November 12.

Apparently, this was the first notice to' the Searses that the contract had been assigned. The appellants filed a bill for declaratory relief praying for a decree declaring the contract null and void, and The Paape Development Company, Inc., then filed a bill for specific per-' formance. The cases were consolidated for trial purposes by agreement of the parties. The appellants make a tridentated attack on the contract’s amenability to specific performance, contending: (1) that the description of the land contained in the contract was so vague and insufficient as to render the contract unenforceable; (2) that the real estate agent Paape violated his fiduciary relationship with the vendor, in that he was serving two masters, - which vitiated the assignment of the contract; and (3) that the appellees did- not pursue the rezoning of the property with proper diligence. i It is well settled law, in this state and elsewhere, that to successfully maintain a bill for specific performance of a contract for the sale of land “ ‘the description [of' the land used in the contract] must be such as to enable the court to determine with' certainty, with the aid of such extrinsic evidence as is admis— ⁵²⁹ sible under the rules of evidence, what property was intended by the parties to be covered thereby.

The description need not be given with such particularity as to make a resort to extrinsic evidence unnecessary. Reasonable certainty is all that is required.’ Kraft v. Egan, 76 Md. 243; Engler v. Garrett, 100 Md. 387 .” Powell v. Moody, 153 Md. 62, 66 , 137 A. 477, 478 (1927), followed in this Court in Baker v. Dawson, 216 Md. 478, 491 , 141 A. 2d 157, 164 (1958), and Neuland v. Millison, 188 Md. 594, 604 , 53 A. 2d 568 (1947). The fact that the agreement itself calls for a survey to render the description more precise does not affect the validity of the contract providing there is sufficient identity of the land to have allowed a meeting of the minds of the parties to the contract. “A description may be sufficient although the contract contemplates a survey to prepare a more complete description.” Neuland v. Millison, 188 Md. 594, 604 , 53 A. 2d 568 (1947); Powell v. Moody, 153 Md. 62, 67 , 137 A. 477 (1927). In the instant case the description iti the contract of the land to he conveyed was sufficiently definite to identify the land in the minds of the contracting parties with reasonable certainty.

The Searses owned three parcels of land south of Best Gate Road, on tiie east side of the B & A Railroad right of way. The contract called for the conveyance of a tract of 40 acres more or less, with an addendum providing for an adjustment at the rate of $2,500 per acre pending the result of the survey, which was expressly contemplated by the parties to the contract, more accurately describing the property by metes and bounds. At the time of the execution of the contract the Searses owned approximately 61 acres of land south of Best Gate Road and east of the B & A Railroad right of way. Parcels two and three combined contained 37.7 acres, parcel two containing 27acres and parcel three, 10J4 acres.

From the survey prepared by J. R. Mc-Croue, Jr., Tnc., it is obvious that parcels two and three comprised the 40 acre tract to which the parties to the contract had reference as the subject matter of their agreement. Parcel number one appears to consist of 23.4 acres, which if it were to be combined with the contiguous parcel number two would form a tract in excess of fifty acres. It is obvious that the parties to the contract contemplated the combining of parcels two and three to form the 40 acre tract. ⁵³⁰ Marion J. McCoy, an employee of the Planning and Zoning Office of Anne Arundel County, testified that an application for the rezoning of the subject property had been filed on October 26, 1964, which application bore the purported signature of Mr. Sears, and that a plat was filed with the application which the witness identified as similar to the Plaintiff’s Exhibit No. 6, which plat designates by metes and bounds the three parcels owned by the Searses, including parcels two and three. Subsequently, another plat was prepared by J. R. McCrone, Jr., Inc., designated as Plaintiff’s Exhibit No. 7, which is substantially the same as Exhibit No. 6 and which shows parcels two and three to contain 40 acres, although at the hearing it was testified by the surveyor that only 37.7 acres remained in the designated 40 acre tract because several outgoing conveyances had not been subtracted from the 40 acre tract.

We think it can be said with reasonable certainty that the contract embraced the 37.7 acres comprising parcels two and three of the Searses’ land. u On the surface a plausible argument is seemingly presented by the appellants’