Stern v. Shapiro

Offutt, J., delivered the opinion of the court. This is 'an appeal from a decree of the Circuit Court of Baltimore City ordering Mrs. Sophia Steam, the appellant, h> specifically perform a contract for the sale of a. house identified as 1039 North Eutaw Straet, Baltimore, to' Isaac Shapiro, the appellee, for $3,200. At the time the contract was made Mrs. Stern lived in the house with two of her daughters, and was then and for some time had been in had health. For that and other reasons she was herself rather averse to selling it, hut was persuaded by her daughter Marie, who disliked the neighborhood, to agree to dispose of it.

Under these circumstances Isaac Shapiro made an offer to buy it for $3,200, which offer the appellant accepted, and the terms and conditions of the sale Were embodied in the following written Doiemorandum of sale signed by the parties: “Balto., 4/11/18. Rec’d of Mr. Isaac Shapiro the stun of twenty-five dollars deposit on house 1039 NT. Eutaw — in fee simple, sale to be concluded within 30 ⁶¹⁷ days of deposit, otherwise the deposit to be forfeited by Mr. I. Schapiro. Mrs. Sophia Stern is to be given one month time to remain in the house after settlement free of rent (her apt.).

Mrs. Sophia Stern, Sophia Stern. Sale price of house, $3,200.00. $3,200.00 net, no fees. Marie Stern. Isaac Shapiro.” This contract was written by Marie Stem, who was present and took an active part in the interview at which the contract was signed and executed by Mrs. Stem at her home on April 4th, 1918.

The next day Miss Marie Stern took the contract to Mr. John M. Requardt, a. member of the Baltimore Oitv Bar and asked him to represent Mrs. Stern’s interests under it. Testifying; as to what took place on that occasion, she said: “Yes, I gave him the contract that Air. Requardt reminded me the other day that I made: the remark to him that I did not see how Mr. Shapiro is going to pay for the house and he said that he had thirty clays’ time in which to pay for it. Two days after that Mr. Shapiro came in and I told him the deed was at Mr. Requardt’» office, and when I was up at Mr. Requardt’». office I said, ‘How about mother ?

You know mother cannot come here. She is not allowed to go anywhere. How will it do about the signing of the deed V ITe said, ‘I will cell you wliat, Miss- Alarle, when it comes up. I will notify you' and we will send the deed clown, with the notary public to your house for your mother to sign.’ He said, ‘yes.’ Air.

Requardt always, did. 1 said, ‘All right, let me know.’ He said, ‘All right, let notify us beforehand.’ ” At or about the- same time Air. Shapiro referred his interest in the contract to Air*. Israel'S. Gomborov, his attorney. On May 21, 1918, after the time fixed in the contract for its performance had expired, Air.

Gomborov delivered to .Mr. Requardt a check for the balance of the purchase money due on the house, which Air. Requardt accepted, and at the same time gave Mr. Gomborov a letter to Airs. Stern in which he explained the amount of the check and requested Airs. Stern to execute a deed for the property.

This ⁶¹⁸ she refused to do on the ground that as the property had not been paid for within the time limited by the contract, the contract was under its terms at an end. The vendee, however, claimed that he had been ready before the expiration of the time limited in the contract -to perform its terms but that he had been misled by Miss Marie Stem, the vendor’s agent, and by the vendor’s attorney, into believing that it was not convenient to the vendor to elo-se the transaction until the time it actually was consummated by the delivery of a check to the vendor's attorney, and he further insisted that in accepting the check Mr. Requardt was acting as the vendor’s agent, and that in consequence she is estopped by his action from refusing to specifically perform the contract. But in reply to these contentions, the vendor asserts that while Mr. Requardt was her attorney to see that the contract was performed, he was not her agent authorized to vary it, and that as his acceptance of the check for the balance of the purchase money was after the time for performance of the contract had expired, he had not the authority to change its terms by extending the time for its performance, and that his act in doing so was, in the absence of her assent thereto, not binding upon her; and she also denied that the vendee was misled into believing that she had ever agreed to any modification of the terms of the agreement as to time within which it was to be performed. The evidence in regard to these divergent theories is vague and conflicting and its purport can be best stated by quoting briefly from tire testimony of the several witnesses.

Isaac Shapiro, the appellee, testified that he saw Miss Stem twice after the execution of the contract of sale. The first occasion, he said, was about five days after the date of the contract, when he called at her home to obtain the deed under which her mother acquired the property, and she then told him that Mr. John M. Requardt, their attorney, had the deed; that about two weeks later he again saw her1 at her home and he then asked her when would he a suitable day to settle the property and she told him: “Everything is left with Mr. Requardt. Whenever he will send for us, because my mother ⁶¹⁹ might be sick, and whenever he sends for ns we will sign the deed. Mr. Requardt is entrusted to receive the money.

We trust everything to Mr. Requardt.” The witness continuing said he informed his attorney of this conversation and that he had said, “That is all right, I can get along with Mr. Requardt, I have had a number of conversations with him and we always get along nicely,” and that he then left the matter with Mr. Gomborov and Mr. Requardt. lie further said that on the occasions refered to he dealt with the daughter because) “'she was always representing the business affairs,” and he did not see Mrs. Stem at all after the contract' was signed. The witness further testified: “I left it to Mr. Gomborov and Mr. John Requardt to arrange the timé of settlement. I was ready with the mortgage. Mr. Gomborov was; ready with the insurance, and everything was ready, and when the time came there was set a day of settlement to settle the property.

Mr. Gomborov handed over tho check to Mr. Requardt. Mr. Requardt wrote a letter to Mrs. Stern and sent- over a notary public direct to their house, stating the fact that everything is settled and please to sign the deed to the property, and have it acknowledged before the notary public.” (The “day of settlement” referred to by the witness appears to have been the 21st day of May.) The witness .further said that he was “ready within ten or twelve days” after he purchased the property, and was able at any time to pay for it. On cross-examination ho testified that he was- continually importuned by Mrs. Stem and her daughter to sell the property for them, and that Mrs. -Stern had spoken to- him about it only a day or so before tho contract was signed. When asked if he had not telephoned to the 'Sterns to inquire if they wanted to soli the house, he replied: “I did not- telephone, I did not have to because she told me personally before 1hat time if I could get her a purchaser she would sell it,” but later on when asked the s-ame question he said: “I don’t remember telephoning.

If T did, maybe I did, but I don’t remember it.” He further said that he had gone to Mr. Requardt’s office for the deed about “two days after* signing ⁶²⁰ this contract,” and that he had arranged with a building and loan association to advance money on the property. He was then asked, “Will you say 'that you or Mr. Gomborov, or somebody on your behalf offered to pay Mrs. Stern the purchase money for this property within the time specified in that contract, namely one month,” to which he answered: “When I came there it was about one week before, about ten days before the settlement,” I said, “Our building association is ready when you are ready?” They said, “whenever Requardt arranges the hour, the time.” It was, however, admitted that the tender was not made within the time specified. He was then asked how often he had seen Mrs. Stern after the execution of the contract, and at first said, “only once, I came three days after asking for the deed and then she referred me to Mr. Requardt.” He was then asked: “And that was the only time you saw Mrs. Stem after the contract,” and he answered, “twice I seen her1.' Another time was two weeks later, to ask her when they will he ready.” He amended this statement by saying that these interviews were not with Mrs. Stem at all, but with her daughter Marie, and explained the fact that he dealt with the daughter instead of the mother by saying: “When I saw Mrs. Stern in other instances she referred me to her daughter, that she does her business.” Mr. Israel S1. Gomborov, the appellee’s attorney, testified that Shapiro had asked him to search the title to the property, hut he did.uot recall just when that request was made.

When asked about that he said: “I do- not know the date. I simply judge from the fact that I ordered the lien sheet and the .lien sheet is dated April 20th, 1919, 1039 North Eutaw Street, so I presume that. I must have stalled the examination of that title, or I was ordered to start the examination of that title hefoi'e the 20th of April.” And when asked how he came to meet Mr. Requardt in connection with the transaction he said: “I really do not recall that except that I got the deed to the property and it came to me, and it was evidently prepared in Mr. Requardt’s office, because it has ⁶²¹ Ins cover on if. I started to examine the title and as is customary with me — I never complete a title and check the title off until it comes down to actual settlement.

I examined the title and the first thing I find among my communications— my memory is very hazy, but for some reason or other that settlement did not take place according to the terms of the contract, on the 11th of May, because I find among' my communications that on the 13th of May I communicated with Mr. Requardt. Why, I do not know, that I could not find a release of a mortgage, and I have only my copy of that letter. * * * In that letter I said, ‘I understand that this property is to' ho settled this coming Wednesday, May 15th, 1918, at noon at my office, and I will thank you if you will let me know if the same is satisfactory to you.’ Why it was ordered to be on May 15th at my office, I do not remember. I find on May loth I ordered a judgment sheet.” The witness then produced a letter from. Mr. Requardt to him dated May 16th, 1918, iu which the writer- said: “Mrs. Stern is so ill that it is practically impossible to have her come down town.

Won’t yon send the deed for the property to he transferred, and I shall have it executed and hold it at my office until you are ready to settle the matter.” The witness then identified a letter from Mr. Requardt to Mrs. Stern in which he informed her that he liad received a check for the property and renques ted her to execute the deed. This letter which was dated May 21st, 1918, was sent with the deed by a notary public to Mrs. Stern. When, asked whether the letter of May 15-th was the first communication he had had with Mr. Requardt in reference to the transaction, Mr. Gomborov said: “Ho, sir; this surely was not the first, and my memory is rather very hazy on that, but I do not find anything or any response of his to, as to my communication of the 13th. However, I do know that I passed the title from the fact that I was ready to make a settlement, and therefore there must have been a telephone communication between Mr. Requardt and myself.” The witness further testified that he had gotten the check hack from Mr. Requardt.

On cross-examination, when asked ⁶²² when he finished the examination of the title, he said: “I have tried to explain to you that I never check off a title, if I possibly ean help, until practically the last day. I do not remember why I have not — I do not know of any reason why I have not the notice of a prior settlement, or a prior date for settlement, hut I did receive a notice' from somebody, somehow, which I do not recall, that there would he a settlement on the 15th day of May, and I must have received that — do you. want me to' give you the balance of my answer ?” And afters;saying that lie did not recall ever having seen the contract,-he. was asked this, question: “But you say you think •the-time of settlement was fixed as the 15th of May?” and he replied: “No, sir; I did not say that. Somebody must have given me notice that the time was the 15th. Now whether Mr. Requardt or Mr. ¡Shapiro gave me the notice I do not know.

I infer that, from a copy of my letter, where I. wrote to him and said I understood it was the 15th of May.” Testifying on the appellant’s behalf Miss Marie Stem said that Mr. Shapiro had called up¡ her home by telephone on the night of April 10th and said that he had heard Mrs. Stern wanted to sell her house, and when informed that they did he inquired what they wanted for it. Witness' told him she would not discuss that matter over the telephone, but told bim if be would come to’ her home, she would talk it over with him. That he did go- to her home that night and there met Mrs. Stern and the witness. In describing thait interview sbe said: “Mr. Sbapiro came in and we were talking, and he asked the price:, be said to mother, do you want to sell the house?1 To tell the truth, mother did not want to- sell the house, but I did on account of the neighborhood.

I just gave her the wink and she was sort of in a condition that she did not care what I was doing.. There was something about price and then I said. £Come around tomorrow night. Tt is too much for mother tonight.’ The next night he came around and I had talked mother into it during the day time and Mr. ¡Shapiro came around, it must have been between eight ⁶²³ and nine o’clock * * * so finally we came to an agreement and I said ‘Listen here Mr. Shapiro, I have heard about you. ■ Remember this is to he settled in thirty days, and if it isn’t settled in thirty days you do not get the house.’ He turns around and remarks to me, ‘I can settle it at any time.’ I said then it is up to yon it must be settled within thirty days.” The witness, continuing her testimony, said that she took the contract to Mr. Reqnardt, who had known the family for some time, and left it with him. That when she was there she said to him: “How about mother, you know mother can’t come here.

She isi not allowed to go anywhere. How will it do about the signing of the deed,” and that he said, “I will tell you what, Miss Marie; when it comes up I will notify you, and we will send, the deed down with the notary public to your house for your mother to sign * * * and that she said, “All right, let me know.” The witness further said that about two days after that, Shapiro came to