Wagner v. Bing

⁴⁹⁸ Parke, J., delivered the opinion of the Court. The plaintiff entered into a written contract with the defendants for the purchase and sale of land in the City of Baltimore. There is no question of the ability,’ readiness, and willingness of the defendants to convey by a good and marketable title, nor of the desire of the plaintiff to perform his part of the contract according to his construction of its terms. The sole cause of the controversy between the parties arises from the claim of the plaintiff that the land was sold upon the representation that it contained a minimum quantity of seven acres, and that a survey, which the plaintiff had made after the execution of the contract, ascertained the actual area to be practically six acres.

By reason of his contention that he was entitled to make an abatement in the purchase price that would be proportionate to the reduction in acreage, the plaintiff so offered performance of the contract; but the defendants declined to accept this offer, on the specific ground that the stipulations of the contract required the plaintiff to pay the full purchase price, because the land had been sold as an entire parcel without any obligation with reference to a particular quantity. On the theory of his right to a ratable reduction in the purchase money and, then, with the price so diminished, to enforce specifically the contract, the bill of complaint at bar was filed. The answer of the defendants denied that any representations had been made to the plaintiff with regard to the quantity of land in the parcel agreed to be sold, and asserted that the entire contract between the parties was found in their written agreement, which the defendants prayed should be enforced, according to its terms, against the plaintiff in the cause which he had instituted. The testimony was taken before the chancellor, who, without hearing the witnesses on the part of the defendants, dismissed the plaintiff’s bill of complaint; and the plaintiff has appealed.

Fraud, whether consisting of false representations, intentional concealments, or of any other deceptive practices, does not make the contract void, but only voidable at the election of the injured party, and, therefore, he may always waive the ⁴⁹⁹ fraud and ratify the contract and thereby make it as binding’ as though the contract had originally been free of all fraudulent elements or circumstances. The waiver may be express or it may be implied from acts which, when done with complete knowledge of all the material facts, show an intention to adopt the contract or to claim and to enjoy, in whole or in part, its benefits. Pomeroy on Specific Performance (3rd Ed.), secs. 279, 222. Moreover, should a vendee prove that the vendor represented the land sold to contain a specific quantity of land, and that such representation misled the vendee and was a material inducement to the contract, and that the amount of land the vendor was able to convey was less than the vendee agreed to buy, the vendee may usually obtain relief in such a case, since a court of equity will endeavor to maintain the rights of both parties and will enforce the contract without regard to the failure in part of the subject-matter, by decreeing, at once, a conveyance of the vendor’s actual interest, and allowing to the vendee a compensation in money or an abatement from the agreed purchase price that will be proportional to the value of the deficiency.

Pomeroy’s Specific Performance (3rd Ed.), secs. 437, 438; Marbury v. Stonestreet, 1 Md. 147, 152 ; Hall v. Mayhew, 15 Md. 551, 567 ; Kent v. Carcaud, 17 Md. 291 ; Mendenhall v. Steckel, 47 Md. 453 ; Balto. Perm. Bldg. etc. Soc. v. Smith, 54 Md. 187, 203 ; McLaughlin v. Leonhardt, 113 Md. 261, 273, 274 , 77 A. 647 ; Somerville v. Coppage, 101 Md. 519, 524 , 61 A. 318 . In the present case the testimony fails to establish any actionable representation with respect to the amount of acreage in the land agreed to be conveyed that the plaintiff was entitled to rely upon.

There is testimony that one of the defendants told the plaintiff that the parcel to be conveyed had, probably, an area of seven and one-third or more acres, and had, assuredly, a minimum of seven acres; and that the price of $22,000 was reached upon the first basis, at the rate of $3,000 an acre. The plaintiff desired to transform this estimate into a promise and endeavored to have the defendants agree to convey this amount of land. The defend ⁵⁰⁰ ants were unwilling, but tbe plaintiff persisted; and, so, when tbe plaintiff presented for their execution a contract which he had had prepared and which contained the declaration that the quanttiy of land sold was “about seven and one-third acres at $3,000 per aeree, or twenty-two thousand dollars,” the defendants refused to sign until this clause was omitted and a contract substituted for a sale of the tract in gross, by its description on an incorporated plat, and for the unqualified and certain purchase price of $22,000. Under these decisive circumstances, it is manifest that the omission of the quantity of land was not the result of a mistake or fraud, but because the parties had agreed that the subject-matter was sold and bought in gross at a fixed price, and that the vendors would convey according to their undertaking if the deed would convey the land of the vendors as shown and described on the plat.

If the court were to interpolate in the terms of the written contract the clause that the sale was of a tract of “about .seven and one-third acres at $3,000 per acre,” the instrument would not thereby be rectified so as to express the real agreement of the parties on a material point; but would revive a rejected basis of sale. Thus the sale and purchase of the land, with all representations in respect to quantity, is found completely embodied in a single written instrument, and, therefore, all other utterances of the parties are legally immaterial and, so, inadmissible for the purpose of determining what are the terms of their contract. Wigmore on Evidence (2nd Ed.), secs. 2425, 2430, p. 289; Whitelock v. Whitelock, 156 Md. 115, 119 , 143 A. 112 ; Brummel v. Realty Co., 146 Md. 56, 66 , 125 A. 905 ; Bond v. Weller, 141 Md. 8 , 118 A. 142 ; Rafferty v. Butler, 133 Md. 430, 432 , 105 A. 530 ; Phoenix Pad Mfg. Co. v. Roth, 121 Md. 540, 545, 96 A. 162 .

In other words, any oral or other representation of the quantity of the subject-matter is superseded or extinguished by a subsequent written agreement in which the parties have expressly dealt with the matter of quantity. Supra. In the cause at bar the parcel was sold as an entirety, but what passed was determined by a plat and the terms of a contract ⁵⁰¹ in writing in which the plat was expressly incorporated. This' plat was of a survey made of the entire tract by the City of Baltimore, and, while the area contained was not given, the four exterior rectilinear lines, which bounded the tract as well as those which bounded the lot reserved, and the right of way acquired by the City of Baltimore for the opening of a public highway, were all shown.

The plat and contract gave all the metes, bounds, and distances, with the courses of three of the four outside boundary lines, and the fourth was on Holder Avenue, a street of Baltimore City. Chancellor Kent’s statement of the rule applicable is: “Whenever it appears by definite boundaries, or by words of qualification, as. ‘more or less’ or as ‘containing by estimation,’ or the like, that the statement of the quantity of acres in the deed is mere matter of description, or not of the essence of the contract; the buyer takes the risk of the quantity, if there be no intermixture of fraud in the case.” 4 Kent, Comm. (11th Ed.), 467; 1 Sugden on Vendors (8th Am. Ed.), p. 490, note (d) ; O’Brien v. Clark, 104 Md. 30, 34, 35 , 64 A. 53 ; Pomeroy on Spec.

Perf. (3rd Ed.), sec. 454. Here the statements by one of the vendors of an uncertain acreage become a mere matter of description, because the definite boundaries distinctly appear by the contract, when read in connection with the plat, and the plaintiff assumed the risk of the quantity. Jenkins v. Bolgiano, 53 Md. 407, 420, 421 ; Jones v. Plater, 2 Gill, 125 ; Hall v. Mayhew, 15 Md. 568 .

The cases of Reigart v. Fisher, 149 Md. 336, 339, 340, 345-347 , 131 A. 568 , and Tolchester Beach Improvement Co. v. Boyd, 161 Md. 269 , 156 A. 795 , are illustrations of the