Berger v. Burkoff

• Decision Date: 07 November 1952
• Docket Number: Nos. 19,20,s. 19
• Citation: 92 A.2d 376,200 Md. 561
• Parties: BERGER et ux. v. BURKOFF et ux. GOLDSTEIN et ux. v. BURKOFF et ux.
• Court: Maryland Court of Appeals

Page 561

200 Md. 561

92 A.2d 376

BERGER et ux. v. BURKOFF et ux.

GOLDSTEIN et ux. v. BURKOFF et ux.

Nos. 19, 20.

Court of Appeals of Maryland.

Nov. 7, 1952.

Albert L. Sklar, Baltimore (Henry R. Wolfe, Baltimore, on the brief), for appellants.

Isidor Roman, Baltimore, for appellees.

Before MARKELL, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

COLLINS, Judge.

Here are appeals from two summary judgments in two separate actions brought by the appellants, plaintiffs below, seeking damages from the appellees, defendants below, for alleged breach of warranties in the sale of two houses constructed by the appellees.

On January 17, 1950, Alex Burkoff and Helen Burkoff, his wife, Sellers and appellees, entered into an agreement of sale, under seal, with Joseph Berger and Elsie Berger, his wife, Buyers and appellants, by which 'the said Seller does hereby bargain and sell unto the said Buyer, and the latter does hereby purchase from the former' a house admitted in the argument in this Court to be a finished house at 3304 Menlo Drive in Baltimore for the price of $15,900 subject to an annual ground rent of $120. The agreement provided that in the sale should be included storm doors and windows throughout the house, the gas range, garbage disposal and electric clock 'now in first floor kitchen. A single drain board sink and an apartment size gas range' were to be installed in the kitchen of the second floor apartment. The Buyer was to receive a good and merchantable title at his expense. The following clause was included: 'This Contract contains the final and entire Agreement between the parties hereto, and neither they nor their Agents shall be bound by any terms, conditions or representations not herein written; time being of the essence of this Agreement.' The purchase was consummated, settlement was made, and deed passed on February 28, 1950.

On July 7, 1950, Alex Burkoff and Helen Burkoff, his wife, appellees and Sellers, entered into an agreement of sale, under seal, with Albert Goldstein and Sylvia Goldstein, his wife, appellants and Buyers, by which 'the said Seller does hereby bargain and sell unto the said Buyer, and the latter does hereby purchase from the former' a house admitted in this Court to be a finished house at 3305 Menlo Drive in Baltimore City for the price of $21,500 in fee. The agreement provided that the Buyer was to receive a good and merchantable title at his expense. The contract also included the same clause as quoted in the Berger contract aforesaid that the Contract contained the final and entire agreement between the parties. The purchase was consummated, deed passed, and settlement made on August 14, 1950.

On April 25, 1951, the Bergers aforesaid filed a declaration against the Burkoffs aforesaid 'for money payable by the Defendants to the Plaintiffs'. The declaration also contained a special count as follows: 'For that heretofore on or about the 17th day of January, 1950, the Plaintiffs and the Defendants entered into an agreement whereby the Plaintiffs agreed to buy and the Defendants agreed to sell a dwelling house known at 3304 Menlo Drive, Baltimore, Maryland, which had been constructed by said Defendants; that prior to settlement of said property, which settlement took place on February 28, 1950, the Defendants warranted to the Plaintiffs that the basement of said premises so sold was waterproof and would remain dry; that relying on said warranty, the Plaintiffs made settlement of said property on the 28th day of February, 1950, and moved into said property; that thereafter the Plaintiffs discovered that the said basement of said dwelling was wet and damp, and that the Defendants had failed to waterproof said basement in accordance with the warranty of the Defendants; that as a result thereof, the Plaintiffs have been greatly injured and damaged and have suffered great loss by reason of a great flow of water into the basement of said dwelling, thereby causing great damage to said basement and equipment therein; that as a further result thereof, the Plaintiffs have been required to expend large sums of money to make said basement of said dwelling waterproof, and have been caused other damage and injury.' In answer to demand for particulars the following answer was filed: 'The warranty made by the Defendants to the Plaintiff was as follows: That, they, the Plaintiffs, would never have water in the basement and that they, the Defendants, would stand in back of said warranty and guarantee same. The said warranty was given in February, 1950, prior to the settlement of said property and was made by the Defendant, Alex Burkoff, for himself and for Helen Burkoff, his wife. Said warranty was made orally and the consideration for said warranty was that the Plaintiff would consummate the purchase of said property because of said warranty given them by the Defendants.' Damages were claimed in the amount of $3,000.

On August 3, 1951, the Goldsteins, aforesaid, filed a declaration against the Burkoffs, aforesaid, for money payable by the defendants to the plaintiffs. The declaration contained a special count as follows: 'For that heretofore on or about the 7th day of July, 1950, the Plaintiffs and the Defendants entered into an agreement whereby the Plaintiffs agreed to buy and the Defendants agreed to sell a dwelling house known as 3305 Menlo Drive, Baltimore, Maryland, which had been constructed by said Defendants; that prior to settlement of said property, which settlement took place on August 14, 1950, the Defendants warranted to the Plaintiffs that the basement of said premises so sold was waterproof and would remain dry, and also said Defendants would service the said property wherever there was a building defect; that relying on said warranties, the Plaintiffs made settlement of said property on the 14th day of August, 1950, and moved into said property; that thereafter the Plaintiffs discovered that said basement of said dwelling was wet and damp, and that the Defendants had failed to waterproof said basement in accordance with the warranty of the Defendants, and also that the roof of the porch of said dwelling was not properly constructed; that as a result thereof, the Plaintiffs have been greatly injured and damaged and have suffered great loss by reason of...