62 A.2d 263 | Md. | 1948
This is an appeal from an order overruling a demurrer to a bill for specific performance filed in the Circuit Court *465
of Baltimore City. The demurrer is to eight separate paragraphs of the bill, and also to the whole bill. We have heretofore permitted immediate appeals in equity cases from orders overruling demurrers to entire bills, (Young v. Cockman,
The allegations of the bill are that on December 5, 1945, the appellant had acquired from the Bureau of Buildings of the City of Baltimore, permits for the construction and erection of 24 semi-detached houses on lots in Sunset Road and Cylburn Avenue in Belvedere Park, one of which houses was known as 5005 Sunset Road. With the applications upon which these permits were obtained were filed plans and specifications showing how these houses were to be built. On January 29, 1946, the appellant applied to the Federal Housing Administration for a priority rating for scarce materials, and received such rating in consideration of its agreement to sell the houses and lots at a price not exceeding the ceiling price established by the Federal Housing Administration, and to give veterans of World War II, preferential rights of purchase. The appellee, Harry Himelfarb, is such a veteran. In April or May, 1946, the appellee, Harry Himelfarb, visited the development of the appellant, was shown partly completed houses by the president of appellant, and was told by the latter that all houses, including the house to be known as 5005 Sunset Road, were being constructed and erected and would be constructed and erected in accordance with the plans and specifications on file with the Bureau of Buildings. Also that the house, No. 5005 Sunset Road, would be constructed and erected with wooden sub-flooring such as that already installed in 5023 Sunset Road, in accordance with said *466 plans and specifications. In reliance upon these representations, the appellees agreed to purchase the lot and the house which was to be completed thereon and to be known as 5005 Sunset Road, subject to an annual ground rent of $120, for the sum of $8500 which the president of appellant reported was the price for the completed house and lot established by the F.H.A., and it was agreed in consideration of the purchase price that the house, which was then in the course of construction and erection, would continue to be constructed and erected in accordance with the plans and specifications filed with the Bureau of Buildings. The agreement between the parties was evidenced by a written contract filed with the bill. The complainants made a down payment of $1000 on the purchase price and on the sixth of November, 1946, paid in full for the lot and house and received an assignment of the leasehold estate from a holding company used by appellant for this purpose. This assignment was duly recorded, and is filed with the bill. The appellees also allege that prior to and at the time of said settlement and payment in full for the house, they had had no opportunity to inspect the house because the president of appellant, acting for appellant, refused to open the house for inspection, representing that the house was completed as agreed upon. After moving in and residing in the house the appellees found that it was not constructed and erected in accordance with the plans and specifications, many items having been omitted entirely, other items erected and installed in a defective manner, and inferior grades of materials substituted for those called for. There are listed in paragraphs a. to p., both inclusive, of the bill, the defects, omissions and substitutions. The appellees also allege that they were overcharged $50 in violation of the maximum ceiling price, and that they have seasonably and repeatedly requested appellant to correct and remedy the conditions in the house, but such requests have been ignored. Photostatic copies of the plans and specifications are filed as exhibits with the bill. The appellees further state that they have suffered damage *467 and inconvenience, that they have no adequate remedy at law, and they ask that the appellant be decreed to perform specifically the contract for the completion of the house, or if this is now impossible or impractical, that they be awarded monetary damages for the failure to perform, and also for the overcharge and for the loss and inconvenience caused them by the breach of contract.
The contract is on a standard form of contract of sale of real property approved by the Real Estate Board of Baltimore, and provides for the price of $8500 subject to the ground rent "of which One Thousand ($1000.00) Dollars have been paid prior to the signing hereof, and the balance to be paid as follows: Cash at time of settlement, upon completion." There is a clause in the contract that it is thoroughly understood by the buyer that the seller is unable to give any date of completion, and there is also a clause that the contract contains the final and entire agreement between the parties and neither they nor their agents shall be bound by any terms, conditions or representations not therein written.
The demurrer to the whole bill is upon eight grounds of which, however, only three are pressed. These, as stated in appellant's brief, are
"I. The written contract is stated to be and is a complete integration which cannot be supplemented or contradicted by alleged parol evidence.
II. The contract of sale is an indivisible contract, at least part of which is required to be in writing by Section IV of the Statute of Frauds and, therefore, no part of said contract is enforceable which is not reduced to writing.
III. Any such alleged oral understandings were merged in the deed."
As a general rule a court of equity will not specifically enforce a building contract, but there are well established exceptions to that rule. One of these is where a complainant has purchased an unfinished house, taking title when it is in that condition, but the work has never been completed. That was the situation in the case of Brummel *468 v. Clifton Realty Company,
The first contention of the appellant is that the written contract is complete, and that it cannot be supplemented by parol evidence. This contention cannot be sustained where the contract itself states that the settlement is to be made "upon completion", and is silent how the building *469
is to be completed. The contract cannot mean that the parties did not agree what was to be built upon the lot. So far as it shows, what was to be put there might have been a house, a store, or a garage. In such a situation, parties are clearly entitled to show, and the appellees offer to show, what was agreed to be completed. What this was, is stated very definitely in the bill. The written contract on its face clearly did not contain all the agreements made by the parties. In the case of Applestein v.Royal Realty Corporation,
The second contention of the appellant is that the contract of sale is indivisible, part of it is required by the Statute of Frauds to be in writing, and therefore, no part of the contract is enforceable which is not reduced to writing. A short answer to this contention is that the appellees have performed everything on their part to be performed, the land has been delivered to them, they have paid the purchase price in full and taken possession of the property in pursuance of the contract. Boehmv. Boehm,
The final point made by the appellant is that the payment of the purchase price and the acceptance of the deed concluded the contract, and the rights of the parties are thereafter determined by the deed and the original agreement is null and void. There is, of course, a prima facie presumption of law arising from the acceptance of a deed. Buckner v. Hesson,
It does not, however, follow that they can now compel the appellant to do all of the things which are required by the specifications. Some of the things left undone may have been visible from the outside, and as to these they will be held to have been waived when appellees accepted the deed. As to others, it may be impossible now to reconstruct the house, especially as to relaying floors, and the only reasonable remedy will be to provide compensation in the form of money damages. However, all of this is subject to proof, and the appellant may contend, and may be able to show, that it complied with all of the specifications. Some of the things complained of may be due to wear and tear, and others to unwise specifications. The deed was delivered on November 6, 1946, and the first bill of complaint was filed on October 28, 1947. While appellees allege that they "seasonably and repeatedly" requested the appellant to complete the house properly, they must show that the things complained of were due to appellant's omissions, substitutions, or defective construction, and that they made demand on appellant promptly after discovery of the alleged breach of contract. Such questions of fact are for the Chancellor. We are now concerned only with the question of whether the bill as a whole is sufficient to require an answer, and we think it is.
Order affirmed with costs. *472