Colonial Park Estates v. Massart

• Decision Date: 25 February 1910
• Parties: COLONIAL PARK ESTATES v. MASSART.
• Court: Maryland Court of Appeals

77 A. 275

112 Md. 648

COLONIAL PARK ESTATES

v. MASSART.

Court of Appeals of Maryland.

Feb. 25, 1910.

Appeal from Superior Court of Baltimore City; Alfred S. Niles, Judge.

Action by Henry Massart against the Colonial Park Estates. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued before BOYD, C. J., and BRISCOE, PEAROE, SCHMUCKER, BURKE, THOMAS, PATUSON, and URNER, JJ.

J. Royall Tippett and Richard B. Tippett, for appellant.

R. Howard Bland and J. Kemp Bartlett, for appellee.

SCHMUCKER, J. The appellee sued the appellant in the superior court of Baltimore City on the common counts in assumpsit. The trial of the case upon the general issue pleas resulted in a judgment for the plaintiff from which this appeal was taken.

The record discloses the fact that the purpose of the suit was to recover from the defendant company the sum of $250 which the plaintiff, Henry Massart, had paid to it on account of a proposed purchase of three lots of ground, which he contends was never consummated. It appears from the evidence that Massart, having seen an advertisement by the company offering for sale lots in a tract of land on the outskirts of Baltimore City which it was engaged in developing under the name of the "Colonial Park Estates," visited the property on July 4, 1908, where he met Mr. McCoy, the selling agent of the company. Mr. McCoy took him over the property, explaining its attractions and gave him a sales plat of it, indicating to him the various lots which had already been disposed of and those remaining unsold. Massart became much interested in the property and on the next day he called up McCoy by phone to ascertain whether he could buy the lots designated on the plat as Nos. 3, 4, and 12. He was informed that lot 12 had been sold, whereupon he expressed his willingness to pay $4,000 for lots 3, 4, and 5. McCoy replied that he could not accept that price, but invited Massart to come out to the property again and see him, at the same time expressing the hope that they would be able to come to mutually satisfactory terms.

On the next day, July 5th, Massart again visited the property and after examining the sales plat which showed the dimensions and location of the several lots, and looking over the land and making some calculations as to the area contained in lots 3, 4, and 5, he made a verbal offer for them of $4,000, to be payable $250 in cash, and the balance in weekly installments of $30 each. McCoy, after consulting the president of the company, accepted the offer and asked for the cash payment of $250, but Massart, according to his testimony declined to make any payment until he was shown a sample of the contract the company would make with him for the lots. McCoy at first said he had no sample with him, but upon the insistence by Massart on seeing the kind of contract he would have to sign before he would make any payment, McCoy produced and gave to him a printed blank form of contract containing quite a number of provisions and restrictions such as are usual in suburban real estate developments. Massart went over the contract, and, after discussing some of its provisions with McCoy, who promised to bring it to him next day to sign, he expressed himself as satisfied and paid the company the $250 cash payment When he had made the payment McCoy filled up and handed to him what he says he supposed was a receipt for the money, at the foot of which he without reading the paper signed, at McCoy's suggestion, the direction for making out the deed. The paper so handed to him at that time is as follows:

"No lots reserved or held. No verbal agreement recognized by the company. All sales are subject to the rules and acceptance of the company.

"Baltimore, July 3. 1908.

"M. Henry Massart. W. P. McCoy.

"To Colonial Park Estates of Baltimore City, Dr. "C. & P. Phone, St. Paul 3119. Offices: 763-769 Calvert Building.

Price

Lots No. 3-4-5 Sec. Q. $4，,000.00

$4,000 00

First payment two hundred fifty dollars

250 00

Balance due

$3,750.00

"To the General Manager of Colonial Park Estates: "Please make deed for above lot.

Term $30 per month in the name of and

"Signed by payer:

"H. Massart. Address of Payer:

"617 St. Paul St

"Offer accepted July 6, 1908.

"John J. Watson, President."

It appears from the record that this memorandum was in fact signed by Massart on July 5th, although bearing date as of the 3d, and that the memorandum of acceptance was signed by Watson on the 6th, as therein stated.

The account given by McCoy in his testimony of what transpired between him and Massart on the two visits of the latter to the property on July 4th and 5th respectively substantially agreed in most of its details with that of Massart, but he said, in reference to what occurred at the time of making the cash payment, "I communicated the acceptance of the offer to Mr. Massart and a memorandum of the agreement was drawn up on a paper and Mr. Massart gave me a check for two hundred and fifty dollars ($250) to bind it. I went over the restrictions with Mr. Massart, and he asked if they were reduced to writing and I said they were. He asked for a form of contract, a form of paper that had all of these provisions in. Of course each particular lot required a special set of papers, but there was a general form used." McCoy further testified that he had fully explained to Massart all of the restrictions, and that the latter knew all about it.

On the morning after the payment of the $250 McCoy took to Massart's office, for signature by him, a formal contract for the purchase of the lots. That contract was drawn upon a form of the kind shown to Massart on the previous day when he paid the money, but there had been inserted into the blank spaces of the printed form several very material provisions imposing additional burdens and restrictions upon the lots. One of these provisions made the lots liable in perpetuity for a proportionate share, not exceeding six dollars per annum on every dwelling to be erected on them, of maintaining a sewerage system; another reserved to the company the right to lay sewer and water pipes, erect and maintain poles for electric lighting and heating purposes on the rear line of the lots; still another contained minute and stringent conditions prohibiting the construction or maintenance of privies or vaults or cesspools for the storage of any kind of liquid waste on any portion of the lots. When this contract was tendered to Massart for signature he, according to his testimony, asked Mr. McCoy to leave it with him so that he could study it. A few days thereafter he notified the company that he had decided not to buy the lots and requested the return of the $250 which he had paid to it. Not receiving the money he brought the present suit and recovered a verdict for the full amount with interest.

It appears from the record that Massart, when refusing to sign the contract for the purchase of the lots, assigned as his reason for so doing only that as he lived in Prance he thought it unwise to bind himself up here in such an engagement. When he was on the witness stand he also assigned as reasons for not making the purchase that the lots tendered him contained smaller areas than those shown on the plat exhibited and given him at the time of the alleged purchase,...