Bechtel v. Cone

52 Md. 698 | Md. | 1880

Irving, J.,

delivered the opinion of the Court.

The appellant sued the appellee in the Superior Court of Baltimore City, in an action of assumpsit. The declaration was for goods bargained and sold, work and labor done, and contained the ordinary money counts. The defendant pleaded never indebted,' never promised, payment and set-off. It was admitted that there was a verbal contract between the appellant and appellee, that the appellant should do the plumbing and gas-fitting in ten houses of the appellee, for the sum of two thousand and fifty dollars in money. After making that contract, it appears that another contract was verbally made between the parties, that the appellant should take a certain house of the appellee, at the price of twelve hundred dollars, subject to a certain mortgage resting on it, in part payment for the work, and the residue only in money. The only questions in the case grow out of this new contract, (whereby the mode and terms of payments provided for in the first contract, were designed to be changed,) and arise upon the prayers granted and refused. It is urged by the appellant that there were conditions precedent to be performed by the appellee, before the contract was to be consummated ; that there were representations concerning the property which proved untrue, and justified his repudiating the contract; and that being a contract for an interest in lands, it is within the fourth section of the Statute of Frauds and void, because the same was not reduced to writing. To determine whether the Superior Court ruled correctly on the prayers, which were intended to present the .several phases of these questions, it is necessary to review briefly the facts bearing thereon.

After the making of this verbal contract for the sale of the house on the one side, and its acceptance in part payment for work done, on the other, it is admitted that the work contracted for was all done, and some extra work besides, all of which was satisfactory. It is in evidence, that an appointment was made for a settlement, and that the appellant directed certain attorneys to examine the title and prepare a deed for the house, which was done, and he paid for its preparation. It was also proved that the deed was executed by the appellee, and left with the justice who took the acknowledgment, for the appellant, who called to get it, but declined to receive it because certain tax receipts had not been left with it, and for no other reason; but it was admitted the appellee had no notice of this refusal, or the reason for it. The appellant testified that all the taxes were to be paid by the appellee before he was to take the property. The appellee admitted he was to pay the taxes in arrear, but did not understand it was a condition precedent to the consummation of the agreement. Subsequently to the execution of the deed, and its being left with the justice for the appellant, the parties met and settled for the work done. The price of the house was deducted from the gross cost of the work done, and the cash or its equivalent was paid for the residue, after deducting the house, and the appellant executed a receipt in full. At that time the appellant asked for the tax bills and receipts and the appellee promised they should be sent to him.' At the time of this settlement, the appellee gave the appellant an order on the tenant of the house for the rent; and for fourteen months thereafter the appellant received the rent from the tenant, and paid one year’s ground rent. Meanwhile the deed remained in the hands of the justice and never was taken away; though the appellee was never notified thereof,, notwithstanding they had met sundry times.

The appellant, in August, 1876, advertised the house, and offered it at public auction, but the auctioneer said the price the appellant put on it was not bid, and it was. not sold. The appellant received the rents from the tenant till about July, 1877. The appellant testified,, that when he agreed to take the house, the mortgage-resting on it was stated to be $1200. The deed which was prepared for him recites that it is subject to a mortgage of $1250. He also states, that shortly after the-settlement, and his getting the order for the rent, he called to examine the house and found it did not come up to representation. He gave no notice of exception, either on account of the defects in the house, or the excess of mortgage over the alleged representation. The appellant admitted, that at the time of the bargain or negotiation, the appellee requested him to go and look at the house-for himself. The first notice the appellee had of discontent-was this suit. Appellee being notified by the mortgagee-at one time, that he had some difficulty in getting his mortgage claim fixed up by the appellant, because of some unpaid taxes, the appellee paid them and told the-appellant, who said it was “all right,” and afterwards saw the mortgagee and promised to pay the interest. Assuming all these facts to he true, we have no hesitation in deciding, that the contract for the purchase of the house had become an executed contract, hy the payment of the purchase money and the entry into possession, and exercise of all the acts of ownership; so that it was wholly “extracted from” the operation of the Statute of Frauds. It comes fully up to the case of Dugan, et al. vs. Gittings, et al., decided hy this Court in 3 Gill, 157, wherein it is said, “there are to he found in this case two ingredients, which, when combined, have always been regarded as relieving a parol agreement from the operation of the Statute—performance of the condition, and change of possession under the contract.” This is the established law in this State, and everywhere. If the payment of the taxes were originally intended to be a condition precedent to the consummation of the arrangement, the evidence of the conduct of the appellant after-wards, was sufficient to warrant a jury in finding a waiver, under instruction from the Court; and the subsequent notice of taxes in arrear, and of distress for the same, of which the appellant gave no notice to the appellee, did not warrant his treating the contract as abrogated thereby. If he had paid them; he would, under their arrangement, have had a right of action against the appellee, hut he could not at that time repudiate the contract, and throw up the house.

The first and second prayers wholly ignore all the evidence, which, if the jury should find to he true, would warrant a verdict for the defendant, and were, therefore, properly rejected.

The third prayer was correctly refused, for in order to make the contract for the sale of the house a binding one on the appellant, it was not necessary that a deed should have passed at all. His acceptance of possession, and exercise of all the acts of ownership for so long a time, and the payment of all the purchase money by his work, as was agreed, would have entitled him to specific performance, and decree for execution of a deed to him, and e converso, the appellee was entitled to hold him to the contract, in the absence of fraud, of which there is no sign or proof! The fifth, sixth and seventh prayers, proceed upon a theory, which excludes from the consideration of the jury all the evidence establishing a waiver. Eor the reasons already set forth, it is evident, that the eighth prayer of the appellant was properly modified by the Court, and granted as modified; and that there was no error in the instructions on the behalf of the defendant.

(Decided 13th January, 1880.)

The judgment will he affirmed with costs.

Judgment affirmed with costs.