Bowie v. Martin, 62

• Decision Date: 10 January 1952
• Docket Number: No. 62,62
• Citation: 85 A.2d 786,199 Md. 58
• Parties: BOWIE v. MARTIN.
• Court: Maryland Court of Appeals

Page 58

199 Md. 58

85 A.2d 786

BOWIE v. MARTIN.

No. 62.

Court of Appeals of Maryland.

Jan. 10, 1952.

Joseph T. Sherier, and Nicholas Orem, Jr., Washington, D. C. (Duckett, Gill & Orem, Washington, D. C., on the brief), for appellant.

C. W. Woodward, Jr., Rockville, for appellee.

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

MARKELL, Judge.

This is an appeal from a judgment for a real estate broker in a suit against another broker for half-commissions on a sale of a tract of 517 acres in Montgomery County. The case was tried before Judge Schnauffer without a jury.

Plaintiff and defendant are residents of Montgomery County and have offices in Washington, where defendant is also the head of a mortgage company. In March, 1947 the property in question was bought by Mr. Louis M. Denit from the Doyle estate, through defendant. After the purchase Mr. Denit asked defendant to proceed to resell it. Defendant posted a sign on it. Plaintiff came in defendant's office from time to time. Before the purchase plaintiff had discussed the property with defendant on several occasions. After the purchase defendant told plaintiff Mr. Denit had acquired the property and would resell it at $500 an acre.

Soon after the purchase defendant suggested to Alexander Hagner, a broker in his office, that Hagner offer the property to Melvin Gelman. Hagner took Gelman out to see the tract. In a letter, dated October 27, 1947, addressed to defendant, attention of Hagner, Gelman said, 'My father and I have inspected the 500 acres on Viers Mill Road over the week-end and he and I both feel that this is too large a proposition for us to handle at this time since we have several commitments already.' Then and since defendant had been very actively making mortgages for Gelman in substantial amounts. From 1947 to May, 1950 contacts with Gelman were very frequent, two or three times a week, at defendant's office or by telephone. Alexander Hagner, after October, 1947 on quite a few occasions, submitted other properties to Gelman. When Hagner would call Gelman, for the first time after six or eight months, Hagner 'brought up the fact that the Doyle tract was still available, and [Gelman] mentioned the fact that they were making headway on their big sub-division but that he still thought he shouldn't bite into it until they got farther advanced.' Gelman testified that after the letter of October 27, 1947, he did not become active again concerning the property until after plaintiff and Robert Hagner (whom plaintiff had associated with him in this undertaking) had shown the property to Gelman's father in April, 1950.

In the spring of 1950 plaintiff went to see Mr. Denit about a sale of the property, and was given the price but was referred to defendant as having exclusive authority. Plaintiff and defendant agreed that plaintiff might sell the property and if he did they would split the commissions fifty-fifty. On May 5, 1950 the property was sold to Gelman for $510 an acre and later conveyed to him and his father, Elias Gelman. Plaintiff sued for half the usual five per cent commissions, which were received by defendant from Denit.

Both plaintiff and defendant and the trial court seem to agree that this case is governed by the same legal principles as if defendant were owner instead of exclusive agent or broker. We take the same view. As the legal principles which govern such cases have long been settled, the issues in this case are essentially questions of fact, some but not all depending upon inferences. On appeal we 'may review upon both the law and the evidence, but the judgment of the trial court shall not be set aside on the evidence, unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.' Trials. Rule 9(c). All the testimony was taken in open court. The witnesses include plaintiff, defendant, Gelman and both Hagners. Defendant's testimony itself is not altogether consistent. There are also conflicts between plaintiff's and defendant's testimony, and between defendant's and Gelman's. In a full opinion Judge Schnauffer reviewed the law and the facts and indicated that he believed plaintiff's testimony, but did not believe all of defendant's, and considered Gelman 'a very elusive witness'. On the testimony the question before us is not whether plaintiff or defendant was right but whether Judge Schauffer was clearly wrong.

Defendant testified that during the period his sign remained on the property (until after the sale to the Gelmans) 'I must have had between forty and fifty inquiries about the property, about one-third of which were from other agents, the remainder from purchasers who wanted to buy it direct.' Notwithstanding all these 'inquiries', the evidence indicates only two 'propects' who showed any marked disposition to purchase, both of whom were procured--or at least stimulated--by plaintiff. Soon after plaintiff made his arrangement with defendant he showed the property to Robert Hagner and employed Hagner to help him obtain a purchaser. Hagner, through inquiries of his own, heard of Elias Gelman and telephoned him, Gelman came to Hagner's office and Hagner later showed him the property. Later Hagner and plaintiff met Elias and Melvin Gelman at the Gelmans' office.

Meanwhile, on April 26th (Wednesday) plaintiff presented to defendant at his office another 'prospect', Emil K. Duvall and Sidney J. Abraham, who made a deposit of $12,500 with defendant and received from him a receipt, 'April 26, 1950. Received of Emil K. Duvall and Sidney J. Abraham a deposit of $12,500.00 on account of the purchase of that piece of land containing 517.42 acres known as the Doyle tract, with a frontage on Viers Mill Road and Aspen Hill Road. It is now deposited with the undersigned pending the preparation of a contract to purchase at $500.00 per acre, settlement in ninety days, with the right to forfeit the deposit and be relieved if sale is not consummated.' Defendant testified that on May 3rd (Wednesday) Mr. Abraham called up and said, 'We can't complete that contract, so please return my check.' Defendant returned the check, with a letter in which he said, 'I am sorry that you have had to withdraw from the negotiations for the purchase of the Doyle tract. If they can be re-opened before the property is sold, I will be glad to hear from you.' Defendant, however, also testified, 'The principal reason [why the Duvall and Abraham contract or offer was rejected by Mr. Denit] was that it wasn't a firm offer to buy; it was an option. As the receipt stated, they had the right to forfeit the deposit if they saw fit to do so and be released of any further responsibility to comply with the terms of sale.'

Gelman testified that plaintiff and Robert Hagner 'must have been in [his office] two or three times'; their last visit must have been the day before May 5th, or within a couple days; 'it all took place within a couple days; * * * there was never any appointment made [for plaintiff and Robert Hagner and the Gelmans] to go down [to defendant's office] as I remember. I know that they said they were trying to get in touch with Mr. Bowie, and Mr. Bowie, they claimed, was out of town or something like that and they couldn't get hold of Mr. Bowie to make an appointment. * * * They said that there was another deal pending at the time'; they did not say that they would have to wait until this was cleared up one way or another before making an appointment for the Gelmans to go to defendant's office. At the argument it was asserted for the defendant that the statement that defendant was out of town was false; this assertion is unsupported by evidence.

Robert Hagner testified that Elias Gelman wished to go to defendant's office at once, but his son prevented him from doing that because there was another prospect, another contract pending; later he called Gelman on the telephone; 'we had an appointment to go the following Monday [May 8th], and the first deal had not been...