Daniel v. Kensington Homes, Inc., 264

• Decision Date: 14 June 1963
• Docket Number: No. 264,264
• Citation: 192 A.2d 114,232 Md. 1
• Parties: Cushing DANIEL, Clarke Danlel and Raleigh Daniel, v. KENSINGTON HOMES, INC.
• Court: Maryland Court of Appeals

Page 1

232 Md. 1

192 A.2d 114

Cushing DANIEL, Clarke Danlel and Raleigh Daniel, v. KENSINGTON HOMES, INC.

No. 264.

Court of Appeals of Maryland.

June 14, 1963.

James Robert Miller, Silver Spring (Miller & Miller, Silver Spring, on the brief), for appellants.

James R. Miller and William M. Canby, Rockville (Miller & Miller, Rockville, on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, PRESCOTT, HORNEY and SYBERT, JJ.

BRUNE, Chief Judge.

The controversy here is between Kensington Homes, Inc. (Kensington), the original plaintiff, now appellee, Cushing Daniel, Clarke Daniel and Raleigh Daniel (collectively the Daniels), intervening plaintiffs, now appellants, over a tract of land which Kensington claimed and the Daniels claimed under separate contracts with Perry Westland and his wife (owning a 50% interest), C. Willard Ashley and his wife (owning a 25% interest), and Suburban Land Co., Inc. (owning a 25% interest). Kensington and the Daniels sought to enforce their respective claims by bills for specific performance, the Daniels' being filed by them as intervenors in the original suit brought by Kensington. The Daniels appeal from an order of the Circuit Court for Montgomery County which granted Kensington's motion for summary judgment as against the Daniels and dismissed the Daniels' bill insofar as it sought on the one hand to bar Kensington from specific performance and on the other to obtain specific performance for themselves.

The case comes before us on an unsatisfactory record. It appears clearly from the opinion of the trial judge that he took into consideration the record in a prior equity suit in the same court between Kensington and the owners, yet the record in this case does not contain copies of the papers filed in those proceedings. The appellee has sought to supply this glaring defect in the record by printing pertinent parts of the record in the prior case as an appendix to its brief. The appellee asserted in its motion for summary judgment that the trial court 'may take judicial notice' of the option agreement dated August 9, 1955, and recorded among the land records of Montgomery County on August 8, 1958. This was the agreement upon which its bill for specific performance was founded. It has not been formally filed as an exhibit nor offered in evidence in this case. The appellee has cited no authority for its proposition that the trial court could take judicial notice of it, nor has it cited any authority in this court to support it or to support the trial court's having taken judicial notice of the proceedings in the prior equity case. In that case a certified copy of the agreement of August 9, 1955, was filed as an exhibit. The pleadings in this case did refer extensively to that agreement, and the appellants themselves, both in their bill of complaint as intervening plaintiffs and again in the affidavit which they filed in opposition to the appellee's motion for summary judgment, did inject the prior proceedings into the case and thereby invited the trial court to consider them. In these circumstances we think that they are not in a position to complain of the trial court's having considered the records in the prior case, including the copy of the agreement of August 9, 1955, and the fact of its record thereby shown. This is an exceptional case (see Fletcher v. Flournoy, 198 Md. 53, 60-61, 81 A.2d 232), and it would serve no useful purpose to remand the case simply to have these papers, which would clearly be admissible, formally offered in evidence, when they have already been considered at the invitation, at least tacit, if not express, of the appellants. Cf. Givner v. Cohen, 208 Md. 23, 30-31, 116 A.2d 357; Walker v. D'Alesandro, 212 Md. 163, 170-171, 129 A.2d 148, 64 A.L.R.2d 231 (in each of which ordinances not properly proven were considered); Joffre v. Canada Dry Ginger Ale, Inc., 222 Md. 1, 5, 158 A.2d 631 (prescribed notice of intention to rely on foreign law not given, but tacit assumption of trial court and parties that law of another jurisdiction was controlling, accepted).

Kensington entered into a contract with the owners on March 31, 1955, for the purchase of approximately 53 acres of land in the Gaithersburg District of Montgomery County. Shortly afterwards the County instituted condemnation proceedings to acquire nearly 10 acres of the tract for school purposes. Kensington and the owners then entered into a new arrangement. Under it, the owners conveyed 26 out of the originally proposed total of 152 lots in the entire tract to Kensington for $1,800.00 per lot, payable partly in cash and partly in deferred instalments evidenced by notes secured by a deed of trust, and the parties also entered into the option agreement of August 9, 1955, above referred to. By this agreement the owners granted to Kensington an option which might be exercised at any time up to noon of August 9, 1958 to purchase all of the remaining lots not taken by condemnation at a price of $1,800.00 per lot on terms similar to those relating to the 26 lots.

On September 10, 1957, Kensington filed a suit in equity (No. 20362) against the owners in the Circuit Court for Montgomery County. This suit sought: (a) reformation of the deed of trust and notes thereby secured, pertaining to the 26 lots above mentioned, so as to defer the final maturity date; (b) cancellation of interest on the notes; (c) an injunction against the defendants making statements reflecting on the financial standing of Kensington; (d) specific performance of obligations of the owners relating to streets, curbs, sidewalks and gutters needed for development of the 26 lots; (e) damages for losses incurred through the owners' delay in performing their contractual obligations; and (f) other and further relief. The defendants demurred, raising numerous objections, and their demurrer was sustained, with leave to Kensington to amend. The bill was held not to set up grounds for reformation, most of the claims which it set up were found to be for damages allegedly due to delay to the part of the owners, for which there was an adequate remedy at law, the prayer relating to derogatory statements was held not to be a proper subject for equitable relief, and the allegations of the bill with regard to the work done in connection with streets, curbs, sidewalks and gutters needed for the development of the 26 lots, were held to be too lacking in definiteness and certainty to support the granting of specific performance.

It appears clearly from the bill, the demurrer and Judge Anderson's opinion that the asserted obligations of the owners were based on the original agreement of March 31, 1955. The owners' demurrer is quite explicit on this point. In paragraph 7 it points out that two of the individual defendants were not parties to the March 31, 1955 agreement, that the August 9, 1955 agreement to which they were parties 'only stated construction to be performed as to the optioned property, and the construction desired to be specifically compelled is for the twenty-six lots conveyed to the plaintiffs on August 9, 1955, and said lots were specifically excluded from the construction provisions required in said agreement.' The demurrer was sustained as to these two defendants.

Paragraph 8 of the demurrer made a similar contention on behalf of all of the defendant owners that the agreement of August 9, 1955, did not obligate any of them to do construction work anywhere except on optioned property. The principal ground for the court's holding as to the indefiniteness of the allegations of the bill with regard to construction work was that the bill failed to allege any regulations of the F.H.A., of the V.A. or of Montgomery County relating to streets, curbs, sidewalks, storm sewers, percolation tests, etc., and also failed to allege F.H.A. or V.A. approval of financing, all of which were provided for under the terms of the agreement upon which the bill was based, which were quoted in Judge Anderson's opinion.

Judge Anderson described the prayer for specific performance of the construction agreement as containing 'the meat of the bill of complaint.' From the fact that he granted leave to amend, it seems evident that he did not regard the provisions of the agreement as intrinsically too vague to be enforceable, but only as being insufficient because they were not supplemented by sufficient allegations as to what the relevant regulations required. Both Brummel v. Clifton Realty Co., Inc., 146 Md. 56, 125 A. 905, and Edison Realty Co. v. Bauernschub, 191 Md. 451, 62 A.2d 354, which are among the cases referred to by Judge Anderson, hold that specific performance of a construction contract to complete a house may be decreed, in the discretion of the court, if the work to be done is clearly defined. See also Laurel Realty Co. v. Himelfarb, 191 Md. 462, 62 A.2d 263. The general rule of equity against specific performance of a contract to build or repair is not absolute and without exception. See Ward v. Newbold, 115 Md. 689, 696, 81 A. 793, where, however, specific performance was denied because of the indefiniteness of the contract.

A full statement of the case calls for an outline of the pleadings, motion and affidavits, and even an outline is lengthy.

The present suit was instituted by Kensington on August 8, 1958, which was the same day that the option agreement of August 9, 1955, was recorded and one day before that agreement would expire. In the bill Kensington alleged that it had exercised its option, that it was ready, able and willing to settle for the lots subject to the agreement, and asked specific performance of the owners' obligation to convey the lots to Kensington. The defendant owners demurred to the bill, contending, inter alia, that the alleged contract was indefinite and uncertain and incapable of being specifically enforced and that the alleged contract had been held unenforceable in equity in the earlier...