47 A.2d 505 | Md. | 1946
This is an appeal by Benjamin Levin and Rebecca Levin, his wife, hereinafter known as the appellants, defendants below, from a judgment on a verdict in the amount of $350 rendered by a jury in the Superior Court of Baltimore City against them and in favor of the appellees, Leon A. Cook and Edna May Cook, his wife, hereinafter known as the appellees, plaintiffs below. The case comes to this court on an exception by the appellants to the admission in evidence of an agreement of sale made on the 31st day of May, 1944, and on the refusal of the trial court to grant the demurrer prayer of the appellants and a motion for a judgmentn.o.v. in favor of the defendants after the rendition of the verdict in favor of the appellees.
On the 31st day of May, 1944, the appellants entered into an agreement of sale to sell to the appellees certain property in Baltimore City subject to an annual ground rent of $54 to be created thereon. This agreement contained the following clause: "The vendors hereby state and represent the heating plant and oil burner at the premises to be efficient and in good conditions throughout and the roof to be in not immediate need of repairs." *538 An assignment of the leasehold interest was executed by the appellants to the appellees of this property on the 4th day of August, 1944. The deed of assignment did not contain the clause in the agreement of sale hereinbefore quoted.
On April 23, 1945, a suit was entered by the appellees against the appellants on the contract of sale and particularly on the quoted clause hereinbefore referred to, alleging that the heating system in the property did not function properly and was bad and inefficient and claiming $750 by reason of the failure of the heating system. As a result of that suit the jury rendered a verdict for the appellees in the amount of $350.
During the course of the trial the appellees offered in evidence the contract of sale hereinbefore referred to. An objection was made by the appellants. The objection was overruled and the contract admitted in evidence. This is the first exception before us here. The appellants contend that the acceptance of the deed or assignment by the appellees is the final execution of the whole contract, making the preliminary contract null and void.
It has been stated many times by this court that if a party can set up an antecedent or accompanying parol contract after conveying by deed thereby contradicting the deed there would be very little security or safety in deeds or in titles held under them. Bladen v. Wells,
It was said in the case of Bryant v. Wilson,
However, it has been frequently held by this court that parol evidence may be given of collateral and independent facts which tend to support a deed, provided it is not offered for the purpose of varying the agreement and is consistent with the deed.Dorsey v. Eagle, 7 Gill J. 321, 331; Creamer v. Stephenson,
It was said in Bladen v. Wells, supra,
In the case at bar there is no reference in the deed or assignment to the heating plant and oil burner and *540
under the general rule laid down in Rosenthal v. Heft, supra,
The second and third exceptions are to the refusal of the trial court to grant the defendants' demurrer ("B") prayer and the appellants' motion for a judgment n.o.v. The "B" prayer was as follows: "The jury is instructed that there is no evidence in this case legally sufficient to entitle the plaintiffs to recover and therefore the verdict of the jury must be for the defendants." The appellants claim that this prayer should have been granted for a number of reasons, namely: because the buyers failed to give notice to the sellers of the alleged breach of a promise or warranty within a reasonable time; because the warranty of soundness related to the conditions at the time of the sale only; because by payment of interest on the second mortgage, the buyers are estopped from alleging the breach of warranty; because there is no evidence as to the amount of damages. Under the *541
rules adopted by this court, effective September 1, 1941, Rule 4, Pt. 3, Subdiv. 3, Directed Verdict, provides that a motion for a directed verdict shall state the grounds thereof. This should be done for the information of the court and counsel. In this case the appellants allege several grounds why the demurrer prayer should have been granted but state no grounds in their motion for the directed verdict. This prayer was therefore defective.Clautice v. Murphy,
It has been often stated by this court that in determining whether a demurrer prayer should be granted any testimony tending to sustain the plaintiff's right to recover and all inference of fact fairly deducible therefrom are to be assumed as true, and if of sufficient probative force to enable an ordinary intelligent mind to draw a rational conclusion therefrom in support of plaintiffs' right, the prayer should be refused. If there is any evidence, however slight, legally sufficient as tending to prove the plaintiffs' case; that is to say, competent, pertinent, and coming from a legal source; the demurrer prayer should be refused. The weight and value of such evidence is a question for the jury. Miller v. Loyal Order of Moose, Lodge No. 358,
The appellees offered evidence that one of the tenants in this house from October 9, 1943, until May, 1944, before the place was sold, complained to the appellants about the lack of heat on the second floor during cold weather and that one of the appellants, Mr. Levin, told him that he would reimburse him for whatever additional heat he used by supplementing the heating system with three oil stoves. This former tenant also testified that three was lack of heat throughout the whole winter. Evidence was further offered that, although the appellees paid interest on the mortgage to appellants early in November, 1944, the defect was not apparent at that time. In December, 1944, when the weather became very *542 cold the thermostat was advanced to 80 degrees and the boiler burst. The cause of this bursting was not discovered until the plumber took down the old burner in January, 1945, and discovered that one of the steam lines under the joist space in the floor was bent, causing the water to trap, therefore leaving the boiler empty when it was fired up. The fact that this bent pipe was under the floor was evidence that this defect existed at the time of the sale.
After the defect was discovered by the plumbers in January, 1945, the appellants were notified by appellees' attorney early in February of this defect and demand was made for payment of damages. There was further testimony that the appellees called the broker employed by one of the appellants, Mr. Levin, and complained in December, 1944, that the boiler had burst and were told by the broker that he would call the Levins and notify them. Testimony was therefore offered of facts from which the jury might fairly find that notice was given within a reasonable time after the defect was discovered. May Oil Burner Corp. v.Munger,
Appellees also submitted evidence that they paid $547 for the replacement of the heater system. The finance charges were $47. The cost of the water cut-off was $25. The jury therefore in arriving at the verdict for $350 apparently deducted from the $547 paid by the appellees, the finance charge of $47, $25 for the water heater, $25 for the water cut-off, and $100 allowed for the old boiler, therefore arriving at a verdict of $350. The evidence appears to have been sufficient to submit to the jury the question of damages. Salisbury Coca-Cola Bottling Co. v.Lowe,
We must therefore conclude that in addition to the fact that the demurrer prayer was defective, there was testimony of facts and inferences of facts fairly deducible therefrom of sufficient probative force to enable an ordinary intelligent mind to draw a rational conclusion therefrom *543 in support of appellees' rights, and therefore the trial court was correct in refusing this demurrer prayer and motion for the judgment non obstante veredicto.
Judgment affirmed, with costs.