Budacz v. Fradkin

• Decision Date: 22 July 1924
• Docket Number: 36.
• Citation: Budacz v. Fradkin, 146 Md. 400, 126 A. 220 (Md. 1924)
• Parties: BUDACZ ET UX. v. FRADKIN.
• Court: Maryland Court of Appeals

126 A. 220

146 Md. 400

BUDACZ ET UX. v. FRADKIN.

No. 36.

Court of Appeals of Maryland

July 22, 1924

Motion for Reargument Overruled Oct. 9, 1924.

Appeal from Circuit CourtNo. 2 of Baltimore City; Walter I Dawkins, Judge.

"To be officially reported."

Suit by Nathan Fradkin, assignee of I. Albert Fradkin, against Melchior Budacz and wife.Decree for plaintiff, and defendants appeal.Affirmed.

Argued before PATTISON, URNER, ADKINS, OFFUTT, DIGGES, and BOND, JJ.

Allan W. Rhynhart and John Holt Richardson, both of Baltimore, for appellants.

Daniel Ellison, of Baltimore, for appellee.

DIGGES J.

This appeal is taken from a decree of the circuit courtNo. 2 of Baltimore city, decreeing specific performance of a written agreement for the sale of certain lots or parcels of ground located in Baltimore city.The agreement is as follows:

"This agreement, made this 10th day of July, 1923 between Mr. Melchior Budacz and wife, Marie Budacz of the first part, and I. Albert Fradkin, of the second part witnesseth: That the said parties of the first part do hereby bargain and sell unto the said parties of the second part, and the latter doth hereby purchase from the former the following described property, situate and lying in Baltimore, Md., viz. described as 2002, 2007, 2009, 2011, 2013 Lincoln court, and 125 Jones court, at and for the price of thirty-six hundred dollars ($3,600), of which two hundred dollars ($200) have been paid prior to the signing hereof, and the balance to be paid as follows: Ground rent, $10 each, and balance within 60 days from date of July 10, 1923, to September 10, 1923.And upon payment as above of the unpaid purchase money a deed for the property shall be executed at the vendee's expense by the vendor, which shall convey the property by a good and merchantable title to the vendee.Taxes, water rent, ground rent to be adjusted at the time of settlement, to be paid or allowed for by the vendor to day of settlement, 1923.

As to possession of the premises, it is agreed that possession upon final settlement in full, and the said parties hereto hereby bind themselves, their heirs, executors, and administrators for the faithful performance of this agreement within 60 days from date hereof, said time to be the essence of this agreement.

Witness our hands and seals.

Melchior Budacz.[Seal.]

Marie Budacz.[Seal.]

I. Albert Fradkin.[Seal.]"

It appears from the evidence:

That the appellantsMelchior Budacz and Marie Budacz were the owners of the six leasehold lots of ground described in the agreement, in Baltimore city, Md., each of said lots being subject to a ground rent of $10; that a certain I. Albert Fradkin, as agent for Nathan Fradkin, purchased the said lots as set out in the agreement for the sum of $3,600, $200 of the purchase price being paid at the time of the signing of the contract, and the balance, according to its provisions, to be paid within 60 days from that date; that on the day that the contract was entered into, or very shortly thereafter, I. Albert Fradkin transferred to his uncle, Nathan Fradkin, his right, title, and interest under the contract by indorsing on the back thereof the following:

"I hereby transfer, for good and valuable consideration, this contract and all right hereunder to Nathan Fradkin.I. Albert Fradkin,"

--and by delivering the contract to Nathan Fradkin, the consideration for this assignment being a commission of 4 per cent. or $144, paid I. Albert Fradkin by Nathan Fradkin; that within a day or two from the date of the contract Nathan Fradkin applied to Israel D. Steinbach, president of the Industrial Savings & Loan Association, for a loan on the property described in the contract, in the amount of $2,500; that he was told by Steinbach to return in a few days and he would be informed as to whether or not the loan could be made; that Nathan Fradkin did return at the time suggested and was told that he would be made the loan, and was directed to Daniel Ellison, the attorney of the building association, that the title to the property might be examined and mortgage prepared; that the same day he went to the appellants' residence to get a reference to the title to furnish his attorney he received information from Newell & Co. that the property described in his contract was advertised for sale by someone else; that he communicated this information to his attorney and was told by Mr. Ellison that it was useless to search the title, because he might not get the property, and that he, the attorney, would get in touch with Mr. Budacz's attorney; that the property was actually sold under the advertisement of which he had learned, and was purchased by some one for the sum of $4,600, the record failing to disclose the name of the purchaser; that subsequently, on July 24, 1923, Mr. Ellison, attorney for appellee, wrote the appellants the following letter:

"July 24, 1923.

Mr. Melchior Budacz, Mrs. Marie Budacz, 1744 Eastern Avenue, Baltimore, Maryland--Dear Sir and Madam: Kindly call and see me at your earliest convenience relative to the sale of the property on Lincoln court, etc., to J. L. Fradkin.I would prefer to get in touch with your counsel, if you will advise me who he is.

Yours very truly."

That about the same time the attorney for the appellee got in communication with Mr. Richardson, attorney for the appellants, and informed him of the difficulty as to the title, and made the proposition to settle for the property, provided the money was left in some bank or in the hands of Mr. Richardson, until it should be determined whether the alleged defect in the title caused by a prior contract of sale could be disposed of, with the understanding that if and when this was accomplished the money should be turned over to the appellants, or if this could not be done, that the appellee would reconvey the property to his client; that this proposition was flatly refused by the appellants' attorney, he stating that his client wanted the money in cash.The prior contract, which created the alleged cloud on the title, was as follows:

"May 18, 1923.

Received of Paul Stein fifty dollars ($50.00) as deposit on properties No. 2002, 2007, 2009, 2011, 2013 Lincoln court and No. 125 Jones court, subject to an annual ground rent of $10.00 each, at and for price thirty-three hundred ($3,300.00) for all; settlement to be made within thirty days from above date.

Mary Budacz.[Seal.]

Melchior Budacz.[Seal.]

Per A. Budacz."

That the rights and interest of the vendee under this contract were shortly after its date transferred, first by the vendee therein named to a Mr. Rodey, and by him conveyed to Samuel Frahm, by whose authority the property was advertised and sold by Newell & Co., this sale taking place on July 23, 1923; that the appellee learned of this prior contract and endeavored to locate Samuel Frahm and make some arrangement with him which would remove any obstacle to the consummation of the contract in this case, by reason of the said prior contract.He was unable to consummate this arrangement before September 10, 1923, the date of the expiration of the time specified in his contract with Budacz, and on that date his attorney again wrote to the appellants, demanding that they return deposit of $200 paid on account of the purchase price, because of their failure to deliver a good title to the appellee.This letter was replied to by the attorney for the appellants on September 13th, in which reply he stated:

"Your favor of September 10, directed to Mr. Melchior Budacz, No. 1744 Eastern avenue, has been referred to me, and in reply thereto, I can only say that Mr. Budacz and wife are ready to give a good and marketable title to the property as referred to in vour letter, and must decline to return the $200 as you request, and, unless you make some effort at once to take title to this property, we will sell the same at the expense of your client."

That subsequently the attorney for the appellee had several telephone conversations with Mr. Budacz's attorney, in which he told him that the appellee could not take title because of the outstanding prior contract of sale, and asked for a return of the money paid on account of the purchase price, which was refused; and on October 3, 1923, the following letter, signed by the appellee and his attorney, was sent to the appellant's attorney:

"October 3, 1923.

Mr. John A. Richardson, 1107 Continental Building, Baltimore, Md.--Dear Sir: Confirming my telephone conversation with you relative to the properties 2002, 2007, 2009, 2011, 2013 Lincoln court and 125 Jones court, covered by contract of purchase, under date of July 10, 1923, between Melchior Budacz and Marie Budacz, his wife, of the first part, and I. Albert Fradkin, of the second part, which contract was assigned by I. Albert Fradkin to Nathan Fradkin, I beg to say that Mr. Fradkin will accept title to the said properties, provided the time for settlement is extended for thirty days from this date.Kindly acknowledge this letter, agreeing to extend the time, so that Mr. Fradkin can have the title examined and prepare for the money to pay therefor.

You will recall that Mr. Fradkin would not accept title to the property heretofore, because of the existence of a contract of sale covering the same properties to some one else.

Yours truly, Daniel Ellison.

Nathan Fradkin."

That at or about the date of this letter the appellee, by an arrangement with Samuel Frahm, was able to relieve the title of the defect of the contract of May 18th, and for this reason additional time was asked for in which to have the title examined and prepare mortgage for the money to be used in payment for the property.The record fails to disclose any reply to the letter of October 3d, but...