Blank v. Dubin, 434

• Decision Date: 09 July 1970
• Docket Number: No. 434,434
• Parties: , 7 UCC Rep.Serv. 1191 Alan M. BLANK v. Richard M. DUBIN.
• Court: Maryland Court of Appeals

Page 678

258 Md. 678

267 A.2d 165, 7 UCC Rep.Serv. 1191

Alan M. BLANK v. Richard M. DUBIN.

No. 434.

Court of Appeals of Maryland.

July 9, 1970.

Robert S. Sherman, Baltimore, for appellant.

No brief filed on behalf of appellee.

Argued before HAMMOND, C. J., and BARNES, McWILLIAMS, FINAN, SINGLEY, SMITH and DIGGES, JJ.

McWILLIAMS, Judge.

The trial judge, Sodaro, J., gave judgment in favor of the appellant (Blank) against the appellee (Dubin) in the amount of $3,656. Blank is dreadfully unhappy about it. He insists it ought to be more but he does not say how much more. He urges us to set the judgment aside and remand the case so that he can have another go at it. We shall not do so because we think that Judge Sodaro's decision was correct. There was neither brief nor appearance on behalf of Dubin.

Blank says that after he acquired substantially all of the common stock of a Baltimore funeral business he 'made numerous large cash advances to the corporation from his personal funds.' In 'partial satisfaction' of the loans the corporation transferred to him its 'chattels, equipment and stock in trade' which he then undertook to sell. In late June or early July 1969 he and his associate, Mrs. Stern, had discussions with Dubin, the owner of Park Avenue Galleries, Inc., looking to the liquidation of the furniture. In his declaration he alleged a 'verbal' (unwritten) agreement the terms of which he said were as follows:

'(a) Dubin was to pick up and advertise and sell certain parts of the furniture, equipment and stock in trade, owned by Blank. Dubin was to receive 20% commission on what he sold. The items to be picked up by Dubin, and sold by him, were to be chosen by Blank and Mrs. Stern.

'(b) Blank, through Mrs. Stern, was to place a minimum sale price upon each item chosen to be sold by Dubin, and Dubin was not to sell said item unless that price or more was received from the sale.

'(c) All reasonable expenses incident to the sale were to be itemized and presented to Blank by Dubin for payment by Blank. Certain pieces of furniture, equipment and stock in trade were not to be sold by Dubin at all, at the present time, and, therefore, were not assigned any dollar value. These items were to be stored by Dubin, until after the items to be sold by Dubin were, in fact, sold by him. At that time, the stored items were to be considered for sale.'

Dubin puts it quite differently. On 18 July he submitted to Blank a written proposal for the sale of the furniture which, after three weeks' meditation, Blank rejected. He, in turn, submitted a written proposal to Dubin which was promptly rejected because, Dubin said, the prices Blank wanted were 'new' prices, much more than the stuff was worth. Then after some discussion it was agreed that Dubin would 'go ahead with a regular sale and get the best prices possible under the circumstances and with that understanding' he started selling it on 4 August. Some weeks later, Dubin continued, 'inasmuch as the furniture was moving slowly (sales at that point amounted to about $2,200), they (Blank and Mrs. Stern) came and asked us to move this furniture as fast as possible inasmuch as they were involved in other litigation with the creditors and such, so we immediately contacted dealers directly whom we have done business with before and asked them to come up and look at the merchandise and see if we couldn't sell some of it to them.' On 16 August Dubin sold the balance (except two items) to Henry Cohen, the owner of Thieves' Market in Alexandria, Virginia, for $2,500. A few days thereafter Dubin received a telephone...