Ziehm v. Frank Steil Brewing Co.

Stockbridge, J., delivered the opinion of the Court. In [November, 1912, Ferdinand ¡Ziehm, the appellant, was desirous of embarking in the saloon business. He had but $400 with which to begin, and applied to the Frank Steil Brewing Co. to' tell him if the officers of that company knew of a business which he could buy, and whether they would* advance him the money required to make such purchase. He was directed to look up a saloon then being conducted by Henry Becher at 1719 Lai robe street, which on investigation appeared to him suitable for his purpose.

He so reported to Mr. Frank Steil, the president and general manager of the Brewing Co.; asked that some one connected with the brewery endeavor to negotiate the purchase for him; and also for aid in financing the transaction. On [November 18th an agreement for the sale was consummated between Mr. Becher and Henry Buchsbaum, the secretary of tbe Brewing Company, for the price of $2,350, and $500 was paid as a cash payment to Mr. Becher for the property, stock of liquors on hand and fixtures, and on the same day Mr. Ziehm drew from the bank $400 which he paid over to the Brewing Company, and entered into possession of the premises. To raise the necessary balance of the purchase money an application was made to the Standard Permanent Building and Savings Association for $1,560'. The original application was refused, the committee of the building association not regarding the property as adequate security for the loan asked.

A guarantee was then given the building association by the Brewing Company and by Mr. Frank Steil individually, for the repayment of the loan, and on this being done the loan was granted. The several negotiations, referred to were fully consummated on the 27th of November, and there were then exe ⁵⁸⁴ cuted a series of papers to carry out the undertaking's of the parties. These were a deed from Mr. Becher and wife to Mr. Ziehm and wife; a mortgage from Mr. Ziehm and wife to the Standard Building and Savings Association; an agreement between Mr. and Mrs. Ziehm and the Brewing Company and an assignment to the Brewing Company of the lot . conveyed by Becher to Ziehm. This case has to do only with the agreement of November 37th and the assignment to the Brewing Company. ' The agreement recites that the Brewing Company had agreed to procure, and had procured from the building association a loan of $1,560; the giving of the mortgage on the Latrobe street property to secure the repayment of the loan, and that the Brewing Company and Erank Steil iudividually had given to the Building Association their guarantee “to hold the association harmless against every loss which it may sustain.” Mr. and Mrs. Ziehm upon their part agreed to . conduct a saloon on the premises for a period of ten years and to “cause nothing to be done which will forfeit the State and City license, and that no other beer, both bottled and keg, be sold on said premises for ten years from the date hereof, except that brewed by the Erank Steil Brewing Company, * * * and to secure the payment weekly of the price of said beer at the ruling market price.” It further provided that in the event of a default in any of the agreements set out to be done and performed by Ziehm that “said property shall absolutely belong to the Frank Steil Brewing Company of Baltimore City, its successors and assigns, free, clear and discharged of every interest and estate of the said” Ziehms, “and that all moneys paid on account of said property or instalments paid to said Building Association on account of said mortgage, and every other interest of whatsoever kind in said property held by the said Ferdinand Ziehm and Caroline Louise Brohm Ziehm, his wife, shall go to and belong to the said Frank Steil Brewing Company of Baltimore City, its successors and assigns, as •liquidated damages; but provided also, that after the said ⁵⁸⁵ Ferdinand Ziehm and Caroline Louise Brohm Ziehm, his wife, shall have fully performed the agreement herein on their part agreed to, then said property shall he again reconveyed to the said Ferdinand ,Ziehm and Caroline Louise Brohm Ziehm, his wife, or survivor of them, absolutely, free, clear and discharged of every claim thereon hereunder by the said Frank Steil Brewing Company of Baltimore City; subject, however, of course, to any balance that may be owing to the said building association on account of said mortgage, which said mortgage, it is expressly understood, is to be paid off by the said Ferdinand Ziehm and Caroline Louise Brohm Ziehm, his wife.” Tn addition to the amount so raised on the mortgage Mr. Steil loaned to the appellant the sum of $410.64, for which the appellant gave his note and which note was paid oí? in due time.

On the 18th January, 1914, the Standard Permanent Building and Savings Association executed a release of the mortgage of [November 27, 1912, which release recited the payment in full of the mortgage indebtedness and released the premises described in the mortgage, not to the Brewing Company in which the record title of the property then stood, but to Ziehm and his wife. Mrs, Ziehm, who was interested in the properly as a tenant by the entireties with her husband, died on the 3rd January, 1916, and at some time thereafter and before the filing of the bill in this case on the 15th Dfecember, 1916, Mr. Ziehm endeavored to dispose of the property but found his sale blocked by the agreement and the conditions contained in it. This bill was accordingly filed which endeavors to repudiate the agreement and prays: 1st. That, the agreement of November' Slt-h be declared null and void. 2nd.

That the deed from Ziehm and wife to the. Brewing Company be declared void. ⁵⁸⁶ 3rd. That the Brewing Company be required to convey to the appellant the property and premises 1719 Latrobe street. 4th.. That an injunction issue restraining and prohibiting the Brewing Company, its officers and agents, from conveying or in any manner- dealing with the