44 Md. 237 | Md. | 1876
delivered the opinion of the Court.
The appellee agreed to purchase from the appellant a house and lot in the City of Baltimore for $5500, and paid her $1000 on account of the purchase money, and has brought this suit to recover back the money so paid.
The plaintiff places his right to recover upon two grounds, first, because the defendant represented her title
A good deal of testimony was offered on both sides, some parts of it quite contradictory — not an unusual occurrence where the parties themselves are witnesses.
The bill of exceptions raises no question upon the admissibility of any of the evidence. In the argument in this Court, the appellant’s counsel has called our attention to the objection which was made on her part, to a portion of the testimony of Jeremiah H. Sluter, this objection was interposed during the progress of his examination, but was not insisted on, and the testimony was admitted subject to exception. “The Court was not called on at any subsequent stage of the trial to exclude it, and exception taken to its refusal so to do.” Under these circumstances we cannot notice the objection ; it is settled by the cases of Coates & Glenn vs. Sangston, 5 Md., 121, and Basshor & Co. vs. Forbes, 36 Md., 154, that the question of the ■ admissibility of the evidence is not before us for review, unless it has been raised- in and decided by the Court below.
The only questions for our consideration arise upon the prayers, and the instruction given by the Superior Court to the jury. There was evidence tending to prove that during the negotiations for the sale, the appellant represented that she held a fee-simple estate in the property, and that in fact she held only a leasehold estate, as assignee of a sub-lease, whereby the property was subject to an annual ground-rent of one cent, if demanded, and that it was further subject, together with other property, of which it formed a part under the original lease, to two ground-rents, one of $216, and the other of $12 per annum. There was also evidence tending to prove that after the payment of the $1000 the appellee made objection to the
If these facts were found by the jury, and stood alone, there could be no doubt or question of the right of the appellee to recover. It is laid down in Comynon Contracts, 3rd vol., 304: “ If a contract is made for the sale of lands or houses, either by public or private contract, and a deposit, or other sum of money is paid thereon, and it afterwards appears that any material representation or improper description has been made, either by the vendor himself, or by his agent or auctioneer employed to sell, the vendee may disaffirm the contract, and recover back the money so paid, by action of indebitatus assumpsit. Norfolk vs. Worthy, 1 Camp., 337; Farrar vs. Nightingal, 2 Esp. R., 639. The vendor must be prepared and able to convey and transfer to the purchaser an estate or interest substantially corresponding with that bargained for and agreed to be sold, both as regards the tenure and the situation and condition, and natural advantages of the property. Any misdescription of the estate or interest, or of the nature or situation, or extent or value of the property in a material and substantial point, so far affecting the subject-matter of the contract, that it may reasonably be supposed that but for such misdescription, the contract would never have been made, at once releases the purchaser from the bargain.” Addison on Contracts, 84, (6th London Ed.) ; Rayner vs. Wilson & Hunting, 43 Md., 440.
The appellant’s counsel has argued that such.misrepresentations as are here alleged, will not avoid the contract unless made fraudulently, and that, they do not constitute fraud, unless they were made wilfully and knowingly. But it is settled that if they are material and substantial, they vitiate the contract, though made by mistake, being to the advantage of the party making them. As said by Sir Edwakd Sugdbn, “The only question is whether they
Upon the theory of the case as presented by the appellee, these authorities clearly establish his right to recover ; but there is evidence in the cause in conflict with this theory, and which the appellant contends, establishes a good defence. The points relied on in defence are ; — first, with respect to the alleged misrepresentations, that they furnish no sufficient ground to entitle the plaintiff to rescind the contract, and recover back the money paid, because, before the payment of the money, the deed of the defendant disclosing the nature of her title, had been placed in the hands of the plaintiff, and had been examined by his attorney.
Secondly, as to the alleged promise to repay the money, that such promise was void in law, being voluntary and without any consideration .; and it is further insisted, that even if such promise were binding in law, that the promise proved in this case was not absolute, but conditional upon the sale of the property by the defendant, for $5500, that she has never sold it, or been able to sell it for that price, and that it is now worth less than that sum. These propositions were raised by the defendant's prayers which were rejected, and in lieu thereof an instruction was given to the jury by the Superior Court.
There is no doubt of the correctness of the legal proposition, that to entitle a purchaser to rescind his contract upon the ground of material misrepresentations, made by the vendor as to the title, it must appear that he was actually misled by them. Ely vs. Stewart, 2 Md., 408.
“A sale, though founded on the misrepresentations of the seller, cannot be for that cause wholly, rescinded, if
It follows that the proposition contained in the appellant’s fifth prayer was correct; but its refusal furnishes no ground for reversal, because the same proposition was clearly stated in the Court’s instruction ; by which the jury were told “that if they should find from the evidence, that at the time of the sale of the house in question, or during the progress of the negotiation therefor, the defendant gave to the plaintiff the means of ascertaining the title, of which he availed himself, by having the title examined by counsel, and thereafter paid the defendant the $1000, testified to in the evidence, that it forms no ground to object to the sale, that the title had been represented to the plaintiff to be a title in fee, when in fact it was a title under a sub-lease.”
So far, therefore, as this branch of the case was concerned, the appellant had the full benefit of her legal defence.
The second ground of defence, before stated, is presented by the appellant’s sixth prayer, which rests upon the hypothesis of facts stated in her fifth prayer, and asserts that a promise to repay the money was “void in law, being voluntary and without any consideration.” This prayer was refused, and the Court instructed the jury “ that if they should find that afterwards the sale was hy agreement rescinded, then the plaintiff is entitled to recover back the money paid upon the purchase.”
The supposed error in this instruction is alleged to consist in allowing parol evidence to prove an agreement to rescind the contract. It is argued that the contract of purchase being within the 4th section of the Statute of Frauds, and required to be in writing, that an agreement to waive a purchase contract is an agreement concerning lands, and must also be in writing, and for this we have
We refer also to Sugden on V. & P., 167-8 ; Addison on Contracts, 97-8, ch. 28, sec. 1; 2 Taylor on Evidence, sec. 1095 ; Benjamin on Sales, 159, and Browne on Stat. of Frauds, secs. 429 to 436, where the authorities on this subject are collected.
This point does not arise in the present case, and we therefore express no opinion upon it.
Here the original contract of purchase has been proved by parol evidence, there being no sufficient writing as required by the Statute; but no objection on that account has been made to the evidence, which was offered in the first instance by the plaintiff, and has been relied on by both sides as establishing a valid agreement of purchase. And in the same manner parol evidence was offered of the agreement to rescind and abandon the contract, and to return the money. No exception having been taken to its admissibility, the appellant cannot now say that it was, inadmissible.
Treating the evidence as competent to go to the jury for the purpose of proving the agreement to rescind; there can be no question as to the validity of the agreement.
The abandonment and surrender by the appellee of his interest in the property under the original contract, is a sufficient consideration for the promise on the part of the appellant to repay the money. The effect of the rescission, if proved, was to entitle the appellee to the return of the money, and no express promise was necessary.
There was no error in rejecting the appellant’s sixth prayer, and in granting the second prayer of the appellee, or in the Court’s instruction, by the concluding portion of which, the appellant got the benefit of the same instruc
With respect to the appellee’s first prayer which was granted, we think the objections to it are not well taken, as we construe it; so far as it defines the rights of the parties it states the same proposition as the instruction given hy the Court which we have said is correct.
Judgment affirmed.
