Smith v. Millwood Construction Corp.

Smith, J., delivered the opinion of the Court. This is another in the line of cases arising between vendees dissatisfied with the quality of homes purchased and their vendors. 1 The contract here was made prior to ³²⁰ July 1,1970, the effective date of Code (1970 Cum. Supp.) Art. 21, §§ 95-95D. We shall here affirm an order which sustained a demurrer without leave to amend.

In their declaration the appellants, Charles F. Smith and wife (Smith), alleged that appellee, Millwood Construction Corporation (Millwood), on July 11, 1968, entered into a written contract with them for sale of a home in Montgomery County. Smith said in pertinent part: “[T]he sellers warranted the house to be delivered in a new house condition and that the home would be constructed in a good workmanlike manner, that the said home was not delivered in new house condition and that the labor and materials were not good building practice, that notwithstanding many attempts by the Plaintiffs upon [sic] the Defendant Corporation’s agents, servants, and/or employees to correct the defects and to deliver the home in a new house condition, the Defendant Corporation has failed and refused to do same, that the Defendant Corporation has breached the terms of its written contract, and that the Plaintiffs will have to expend monies to correct existing defects and to place the premises in a condition as represented by the Defendant Corporation in its parole [sic] representations and in its written agreement.” Prior to demurring to the declaration, Millwood demanded particulars “insofar as [the declaration] alleges that the Defendant Corporation made ‘parole representations’ and alleges a breach thereof”, pointing out that the declaration did not allege who made the representations, when they were made, nor their nature and contents. Smith responded with the following to which Millwood took no exception: “The Plaintiff’s [sic] in response to the Defendant Corporations [sic] Demand for Particulars says as Follows: ³²¹ 1. Robert R. Levick 2.

The representations were made on or about August 19, 1968, and in the months of September, October and November of 1968 3. That the said Robert R. Levick acknowledged the existence of defects in the Plaintiff’s home, but did not agree to make any of the repairs until May of 1969.” Millwood then filed a demurrer which Smith has not printed in the record extract, although its printing appears required by Maryland Rule 828 b 1. The contract of sale between Smith and Millwood was on the printed form of a Montgomery County real estate broker. Typed into the contract was the statement, “House to be delivered in new house condition.” Despite the allegations in the declaration, there was no warranty relative to construction “in a good workmanlike manner”, nor was there a warranty relative to the quality of the materials used.

A portion of the next to the last paragraph on the printed form reads: “[T]his contract contains the final and entire agreement between the parties hereto, and neither they nor their agents shall be bound by any terms, conditions, statements,