Vary v. Parkwood Homes, Inc.

Collins, J., delivered the opinion of the Court. This is an appeal from a decree sustaining a demurrer to an amended bill of complaint praying specific performance of an alleged contract for the sale of real, estate. On June 25, 1951, Willard E. Vary, a veteran, and Carol M. Vary, his wife, filed a bill of complaint alleging in part that they had been disappointed by their inability to purchase a home in Kensington Estates, represented by one Floyd Abraham, for the reason that all of the houses had been sold. “The said agent, Floyd Abraham, told the plaintiffs that a new subdivision just like Kensington Estates was to be started in the very near future, that the houses in Parkwood would be the same, except for a $300.00 increase in price, as the houses in Kensington Estates, and would be built by the same company and financed by the same company that had handled all of the houses in Kensington Estates, that the said agent told the plaintiffs that the G.I. financing of the houses in Kensington Estates was under a 1st deed of trust held by Weaver Brothers, Inc., for 25 years, at 4% per year, monthly payments to be $74.00 and that $74.00 per month covered taxes, insurance, principal and interest, that during the period from February, 1950 to May 26th, 1950, the plaintiffs made several trips to Kensington, Maryland to see the said agent, Floyd Abraham concerning the progress of the new development known as Parkwood.” They were later advised by this Floyd Abraham, then an agent for the defendant, appellee, Parkwood Homes, Inc., that houses were available for sale in the Parkwood development and they were invited to come there the next morning and sign a contract for the purchase of a home. Upon arrival there they were met by Mr. Abraham and shown sample houses.

They selected a type “D” house to be built on Lot 6 Block 9, the first lot available in the subdivision. ⁴¹³ “The said agent Floyd Abraham told the plaintiffs that they should sign a ‘contract’ at once and pay a $25.00 deposit, that the plaintiffs did on May 27, 1950, in the aforementioned sales office in Parkwood, sign a written contract with the defendant corporation which signed by its agent, Floyd Abraham, that that contract was filed with the original Bill of Complaint, marked Complainant’s exhibit A.” That Exhibit follows: “WILLARD E. & CAROL M. VARY TYPE D Date: May 27, 1950 Lot 6 Block 9. Address of Property: Price: $11,250 — (Fire Place). Down Payment: 500. Amount Due: $475 Monthly Payment (Due only at settlement) : $73.50 Salary: $5400.00 yearly.

(Mortgagor)...... (Mortgagor)...... It is understood by all principals that the above house will be held off the market for a period of until completed from the date of above contract agreement. At that time balance of deposit is to be paid to the Parkwood Homes, Inc. sales office and held in escrow pending approval of the purchaser.

It is further understood by the purchaser that the above deposit will apply to to the settlement fees and as such will not be returned to the purchaser, due to the fact that other purchasers with full intent of purchasing a home might be turned away, and due to the time consumed by the Parkwood Homes, Inc. personnel in servicing. In the event that additional time is needed to complete the contracts, please call Oliver 3962 ⁴¹⁴ and explain the situation to the representative in the sales office. Signed: WILLARD E. VARY CAROL M. VARY Address: 2107 Fort Davis St., S.E. Wash., D. C. Phone: AX: 6423 Deposit $25.00 By: FLOYD ABRAHAM, Parkwood Homes, Inc.” That the financing of the house was agreed upon and “were to be as follows: a G.I. loan of $11250.00, to be secured by a 1st deed of trust, for 25 years, at 4% per year, monthly payments to be $74.00, and the G.I. loan was to be secured through Weaver Brothers, Inc., as per the newspaper advertisement marked Complainants exhibit ‘B’, that the plaintiffs expressly asked the said agent Floyd Abraham, whether any additional papers had to be signed or any additional acts to be done between that date and the day of settlement, and the said agent informed the plaintiffs that the contract just signed and marked Complainant’s exhibit ‘A’, was the only contract to be signed by the parties and that no further acts were required prior to the actual settlement of the house which was not until completed, that the plaintiffs would be required to pay the rest of the $500.00 down to cover settlement fees at the time of settlement, that the plaintiffs would be notified in time to make their selections as to wall-paper and bathroom tile colors, that the house built on Lot 6 Block 9 would be identical with the sample house type ‘D’, that that is the reason for type ‘D’ being printed on the top of the contract signed that day and marked Complainant’s exhibit ‘A’.” That on August 5, 1950, they were called to come out to Parkwood and sign a new contract for the purchase of the house originally purchased on May 27, 1950. On August 5, 1950, the plaintiffs went to Parkwood, ⁴¹⁵ and Weaver Brothers, Inc., insisted that the $475.00 due at the time of settlement under the May 27th contract be paid immediately, “that the plaintiffs paid to Weaver Brothers, Inc., the sum of $475.00, that this new contract contained an ‘escalator clause’ calling for the buyer to pay any and all increases of the property as set by the defendant corporation without any notice whatsoever to the plaintiffs, that the plaintiffs signed this new contract only after insisting that the escalator clause be removed, that it was removed, but that the contract was returned to the plaintiffs with their signatures torn off and the plaintiffs were informed by Weaver Brothers, Inc., that the defendant corporation would not accept the new contract without the ‘escalator clause’, that the first new contract filed herewith and marked Complainant’s exhibit ‘F’, described the house on Lot 6 Block 9 as being a type ‘D’ as registered with the VA and gave its address as that of the original sample house at 10402 Summit Ave., that the second new contract filed herewith and marked Complainant’s exhibit ‘G’, contained the same broad escalator clause, and did not describe the plaintiffs house as being the same as the sample house type ‘D’ at 10402 Summit Ave., but merely as the new type ‘D’ that the defendant corporation had just recently filed with the VA the said new type ‘D’ does not show a stone front as did the house that the plaintiffs contracted to purchase.” That the house now on Lot 6 Block 9 which the “plaintiffs contracted to purchase, under a G.I. contract as per the original agreement dated May 27th, 1950, is not identical with the sample house at 10402 Summit Ave., a type ‘D’ house.” The bill of complaint then points out the difference between the type “D” house specified in their alleged contract of May 27, 1950, and the house at 10402 Summit Ave. “That the plaintiffs do not feel that in good equity or conscience they ought to be made to bear the burden of any increased costs in the construction of their house since last May 27th, where such increases are caused by ⁴¹⁶ external forces entirely beyond any control by the plaintiffs, that the defendant corporation is merely using the fortuitous outbreak of hostilities in Korea to seek a better ‘deal’ on its properties because it knows that it is in a seller’s market and that many families are