Barranco v. Kostens

• Decision Date: 08 July 1947
• Docket Number: 164.
• Citation: 54 A.2d 326,189 Md. 94
• Parties: BARRANCO v. KOSTENS.
• Court: Maryland Court of Appeals

54 A.2d 326

189 Md. 94

BARRANCO v. KOSTENS.

No. 164.

Court of Appeals of Maryland

July 8, 1947

Appeal from Circuit Court No. 2 of Baltimore City; Michael J Manley, Judge.

Suit by Herbert W. Kostens against Charles Barranco for specific performance of a contract to convey realty and for an injunction. From an adverse decree, defendant appeals.

Reversed and amended bill of complaint dismissed.

William Taft Feldman, of Baltimore (I. Duke Avnet, of Baltimore, on the brief), for appellant.

Archey C. New and John H. Hessey, both of Baltimore (John H. Herold of Baltimore, on the brief), for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

DELAPLAINE Judge.

This suit for specific performance and injunction was entered by Herbert W. Kostens, proprietor of a hardware store at 4708 Eastern Avenue in Baltimore, to compel the owner of the property, Charles Barranco, to convey it to him in accordance with an alleged option agreement.

Barranco and his wife, Sarah Barranco, now deceased, leased the property to complainant for five years from December 1, 1935, to November 30, 1940, for $70 per month, with an option to purchase the property, subject to an annual ground rent of $45, at any time within three years for $10,000. Complainant did not exercise that option. But he alleged that Barranco executed another lease for five years from March 1, 1941, to February 28, 1946, at $65 per month, with an option to purchase the property, subject to an annual ground rent of $45, at any time during the lease for $8,000; that he exercised this option; but that his copy of the lease has been lost. On December 20, 1945, the chancellor enjoined defendant from transferring the property pending the determination of the case; and on January 23, 1947, he passed a decree ordering defendant to execute and deliver a deed to complainant conveying the property, subject to an annual ground rent of $45, upon payment of $8,000 by complainant. The appeal is from that decree.

It has been broadly stated that the extraordinary remedy of specific performance is not a matter of right in either party, but is a matter of discretion in the court. This discretion, however, is not an arbitrary or capricious discretion, but a sound and reasonable discretion, which is governed as far as possible by established principles of equity, and which grants or withholds relief according to the circumstances of each particular case when the established principles do not furnish any exact measure of justice between the parties. If a contract for the sale of real estate is in writing, and is clear, definite, mutual, and equitable, the chancellor must grant the complainant's application if it is within the law. He may refuse relief only when the facts are doubtful, or when some of the terms of the contract are so vague or uncertain that injustice might arise. Duvall v. Myers, 2 Md.Ch. 401, 404; Popplein v. Foley, 61 Md. 381, 385; Soehnlein v. Pumphrey, 183 Md. 334, 340, 37 A.2d 843; 2 Story, Equity Jurisprudence, 14th Ed., secs. 1026, 1027. On the other hand, the chancellor cannot grant specific performance unless the evidence is so clear, definite and convincing as to leave no reasonable doubt as to the existence of the contract and its terms. Semmes v. Worthington, 38 Md. 298, 318; Shriver v. Seiss, 49 Md. 384, 388; Penn v. McCullough, 76 Md. 229, 24 A. 424; Bellevue Club v. Punte, 148 Md. 589, 598, 129 A. 900; Trotter v. Lewis, 185 Md. 528, 45 A.2d 329; Nickerson v. Nickerson, 127 U.S. 668, 8 S.Ct. 1355, 1358, 32 L.Ed. 314.

It is an established rule of evidence that, when it has been shown that a written instrument has been lost or destroyed, parol evidence of its contents is admissible. Mayor & City Council of Baltimore v. War, 77 Md. 593, 603, 27 A. 85; Burton v. Driggs, 20 Wall. 125, 22 L.Ed. 299, 302. The question whether the search for a lost instrument has been sufficient to render secondary evidence of its contents admissible is addressed to the sound discretion of the court, and the determination of the question is not reviewable on appeal unless there has been a manifest abuse of discretion. It is not necessary that the testimony of a witness who has read a lost instrument should be able to give its exact language, but it is sufficient if it proves its substance as far as it relates to the matter in controversy. Robinson v. Singerly Pulp & Paper Co., 110 Md. 382, 72 A. 828. However, it is not enough that a witness is able to state his understanding of the legal effect of the instrument, if he cannot give the substance of the instrument. The evidence necessary to establish a lost instrument and to prove its contents must be clear and positive and of such a character as to leave no reasonable doubt as to its terms and conditions. Tayloe v. Riggs, 1 Pet. 591, 7 L.Ed. 275, 279; Scurry v. City of Seattle, 56 Wash. 1, 104 P. 1129, 134 Am.St.Rep. 1092. Moreover, where a contract is required by the Statute of Frauds to be in writing, the parol evidence necessary to establish the contract after it has been lost or destroyed must be especially explicit and convincing. Welsh v. Veasley, 286 Mo. 93, 227 S.W. 58. The strictness of the rule may be somewhat relaxed where the missing instrument has been withheld or destroyed by the person to be charged. Tisdale v. Tisdale, 2 Sneed, Tenn., 596, 64 Am.Dec. 775, 782. But in the case before us it is alleged that the lease was 'unaccountably lost or mislaid,' and therefore no reason appears for relaxation of the rule.

In our judgment there is reasonable doubt as to the existence of the alleged agreement. In the first place, the affidavits of Kostens and his wife, Marguerite S. Kostens, concerning the alleged execution of the lease were contradictory. In the original bill Kostens swore that they both signed, sealed, and acknowledged the lease before a notary public; in the amended bill Kostens swore that he was the only lessee. He testified that Barranco had the lease prepared in duplicate, and on the evening of March 1, 1941, brought the two copies to the hardware store. On direct examination Mrs. Kostens said: 'Mr. Barranco and my husband and I, all three, were there when that was signed. We went behind our counter and signed it.' On cross-examination she said that she did not sign the lease either as lessee or witness.

It was shown that on October 8, 1945, complainant sent a registered letter to Barranco notifying him that he wished to purchase the property. It is also admitted that Barranco called at his home on Sunday morning, October 14, to discuss the subject. Complainant testified that he showed his copy of the lease to Barranco, and that Barranco read it. Then he added for emphasis: 'And he saw what was in it. He saw that option giving me the right to purchase that property.' When Barranco, who is now 58, took the stand, he swore that he is unable to read English. Born in Italy and coming as an immigrant to the United States without his parents at the age of 12, he immediately went to work, and never attended school in this country. During the past twenty years he has been employed in a machine shop of the Baltimore Transit Company. Barranco emphatically denied that complainant showed him any papers on the occasion of his visit. Complainant testified that Barranco stated that he did not want to sell the property, but on account of the option in the lease he 'did not see that he could do...