Sellner v. Moore

McWilliams, J., delivered the opinion of the Court. And again “we are engrossed in the arbitrament of a wrangle between a real estate broker and his customer.” Associated Realty Co. v. Cadillac Jack Enterprises, Inc., 250 Md. 371, 372 , 243 A. 2d 543 (1968). The trial judge, Bowie, J., sitting without a jury, entered a judgment for $51,509.06 in favor of appellees (Moore) 1 against appellant (Sellner) on 6 Sep ³⁹³ tember 1967. We have thought it desirable to relate the facts in some detail.

They are not controverted. Sellner, who, at the time of trial, was 91 years old, a widower and “very hard of hearing,” acquired, in 1925, a 94.5 acre tract in the Oxon Hill section of Prince George’s County, upon which, until recently, he had resided. In May 1958' the United States took about 20 acres of his property and, as a result, access to the remainder (73.05708 acres) was destroyed. The National Park Service then issued a revocable permit giving him access to his property over land owned by the United States.

Sellner was unaware of the revocability of the permit. During 1961, Sellner’s daughter, Violet Plendsley, was approached “many times” by a fellow employee, Duel Smith, about buying her father’s property. Smith, in his spare time, was a salesman for Moore. Mrs. Hendsley told Smith on each of these occasions that her father was not interested in selling his property.

Early in 1962, however, Sellner began to show some interest in selling. On 10 March 19'62 Moore obtained a listing agreement signed by Sellner. The handwriting on the printed form is Moore’s but it is not clear whether the listing was obtained by Smith or Moore since there is evidence that Moore had never met Sellner. The listing agreement, exclusive for 6 months, discloses an asking price of $15,000 per acre and a willingness to accept a first trust for 75% of the purchase price, payable in 10 equal annual payments plus interest at 6%, the first payment to be due one year from the day of settlement.

On 2 May 1962 Moore and Smith presented to Sellner for his signature a contract of sale which had been signed the day before by A. R. Minchew, a builder, well known to Moore and for whom Moore had been selling some houses. Moore testified that he prepared the contract, that he dictated it to a secretary no longer in his employ and whose name he could not remember. The contract, typewritten and single-spaced, is on two sheets of plain legal size white paper. It recites the receipt from A. R. ³⁹⁴ Minchew of $5,000 “in the form of a check” to be applied as a “part payment” on the purchase of approximately 75 acres at $9,000 per acre.

Of the total price of $675,000, Minchew agreed to pay $168,750 in cash and give a first trust for the balance. The terms of the first trust as set forth in the contract are interesting. The due date is 11 years later. No interest is payable during the first year.

The first principal payment is postponed for 2 years. Any land can be released at the rate of $12,000 per acre. Prepayments are unlimited, without penalty and must be applied to “the next succeeding curtailments due.” Subordination is required to “any bona fide construction and/or permanent loan or loans placed from time to time upon the subject property or any portion or portions thereof.” The trustee is required “to release land to be dedicated for public use such as for streets, public utilities, sanitary sewer, water, storm sewer, etc. * * * without curtailment and at no cost to the purchaser.” (Emphasis added.) The contract further provides that the “purchaser and/or his agents” are to be given the right to enter upon the property “at any time prior to settlement for the purpose of surveying, engineering and such other work as they deem desirable or necessary * * *.” Sellner is required to convey the property to whoever might “be designated at settlement.” Settlement "shall be one yean from the date of acceptance” of the contract. “Assessments for improvements [except Washington Suburban Sanitary Commission improvements] completed priori to- the date * * * [of the contract], whether assessment therefor has been levied or not shall be paid by the Seller or allowance made therefor at the time of transfer.” (Emphasis added.) See Morris v. Ehlers, 211 Md. 23 , 124 A. 2d 776 (1956). Commissions are provided for in the following paragraph : “The seller recognizes Moore and Moore Realtors as the agent negotiating this contract and agrees to pay 6°/o of the sale price for services rendered herein, same to be due and payable upon the settlement of this contract.

The entire deposit shall be held by Moore and Moore Realtors until settlement hereunder is made and the party making settlement is hereby authorized and directed to deduct the aforesaid ³⁹⁵ commission from the proceeds of the sale and pay same to said agent. The agent hereby agrees to the within commission provisions and acknowledges receipt of the above deposit but assumes no responsibility for the condition of the property or for the performance of this contract by any or all parties hereto.” Near the end of the second page it is stated that “this contract is a revision of a contract dated April 25, 1962, as requested by the seller.” Mrs. Hendsley said Sellner “didn’t like the amount of years that was on it [the April contract] because of his age.” There is nothing else in the record bearing on the 25 April contract. We shall assume that the only difference between it and the May contract was that the term of the deed of trust described therein was longer than 11 years. Moore testified that after Sellner had signed the contract Minchew “asked him not to run it [the $5,000 check] through the bank” and that sometime thereafter Minchew brought him $2,000 in cash which he put in his escrow account.

Moore kept the check in his file. Minchew, he further testified, was supposed to bring him the remaining $3,000. This Minchew never did nor does it appear that Moore ever again asked him for it. The testimony suggests that Minchew did not have the $3,000.

It is interesting and, perhaps, not without significance that on 31 March 1967, less than 3 months before the trial, Moore testified, under oath, while being deposed, that he deposited the $5,000 check in his escrow account in the National Bank of Washington where the money remained until January 1967 when he withdrew it and returned it to Minchew. At the trial he testified that he did not deposit the check hut returned it along with the $2,000 to Minchew. Moore admitted that he did not tell Sellner anything about the check or the $2,000 and that Sellner did not authorize the return of either the check or the money to Minchew. Either late in 1962 or quite early in 1963 Minchew told Moore that he had conveyed a interest in the contract to Gudelsky Company (Gudelsky).

Moore did not make this known to Sellner because he “didn’t figure it was important.” Early in April 1963 Moore told Mrs. Hendsley that the clos ³⁹⁶ ing would be held at the office of The District Title Company on 30 April 1963. In addition to the settlement officer, on that day, there were present Sellner, his incompetent son, Charles Sellner, Violet Hendsley, Ballard Hendsley, her husband, Moore, Minchew, Isadore Gudelsky and Max Ammerman, Gudelsky’s attorney. After the deed had been signed by Sellner, Gudelsky, who, according to Mrs. Hendsley, had been “doing all of the talking,” brought up the matter of the revocable right of way. It seems reasonable to suppose that this circumstance must have been known to Moore, Minchew and Gudelsky for quite some time before the settlement, but it is clear that it was news to Sellner.

Although all of the papers, including the deed of trust, were executed and although Gudelsky delivered to the settlement officer his company’s check for the cash payment (approximately $168,750), the settlement officer was directed by Gudelsky not to disburse anything until the right of way question could be resolved. Sellner was then presented with a letter to the Title Company, prepared in advance of the closing, one of the conditions of which was as follows: “Seller shall provide an irrevocable, legal and recorded right of way of a minimum 60 feet width from the subject property to Bald Eagle Hill Road to the East of said property.” This letter was signed by Sellner, Minchew and Gudelsky. We note that Sellner’s “revocable right of way” was only 40 feet wide. It is of some interest that Moore did not bring to the settlement either Minchew’s check or the $2,000.

The record does not disclose whether the Title Company ever cashed Gudelsky’s check which, incidentally, included the “$5,000 down payment.” Nor do the circumstances of the return of Gudelsky’s check (or the money) appear in the record. The record is not clear as to what efforts were made, or by whom, to obtain the 60 foot right of way. It is clear, however, that they were unproductive. Nor does the record disclose what led up to the execution of the following agreement, dated 1 November 1963, which was prepared by Moore and typed on one of his letterheads: ³⁹⁷ “Mr. A. R. Minchew, 128 Dranesville Road, Herndon, Virginia and Mr. Isadore Gudelsky, or their attorney representative, 2001 Falls Road, Rockville, Maryland. “I have not employed Adrian Fisher as my attorney to represent me to get the existing right of way recorded in the Land Records Office of Prince George’s County at Upper Marlboro, Maryland located at 6009 Oxon Hill Road, Oxon Hill, Prince George’s County, Maryland. “I am willing to give you up to Five Thousand Dollars ($5,000.00) to get above described right of way recorded in the Land Records of Upper Marlboro, Prince George’s County, Maryland, which said recordation right of way must be satisfactory to ‘The District Title Insurance,’ located at 1413 Eye Street, N. W., Washington 5, D. C. The maximum time from acceptance of this agreement for securing said right of way is ninety (90) days and time is of the essence of this agreement.

The cost of above recordation is payable at disbursement from ‘The District Title Insurance Company’ from the settlement of my property, the purchasers are A. R. Minchew and Isadore Gudelsky, in accordance with a sales contract dated May 1, 1962.” The signatures, except Sellner’s, were torn off. Ballard Hendsley testified Moore told them “he didn’t think the lawyer * * * [they] had was giving * * * [them] a good job and that he knew a lawyer who could get * * * the right of way [for them] for the sum of $5,000.” He said that when the agreement was presented to Sellner it had been signed by Moore, Duel Smith and a lawyer, whose name he didn’t know. Moore later tore off the names, Hendsley said, because the lawyer, whose efforts were unsuccessful, “didn’t want his name on it.” Isadore Gudelsky died on 17 December 1963. He appears to have been the prime mover in the affairs of the Gudelsky Company and it seems not unreasonable to suppose that the surviving partners were something less than eager to further pursue ³⁹⁸ the project in concert with Minchew.

In any event, according to Mrs. Hendsley, Minchew was in no position to do anything about it without the Gudelsky money, even if the right of way had been obtained. Things remained in statu quo until 4 November 1964 when the United