Dulany v. Rogers

• Decision Date: 26 February 1879
• Parties: HENRY R. DULANY, Walter Dulany and Jane S. Dulany, Ex'rs of Olivia W. Dulany v. HENRY W. ROGERS. Henry W. Rogers v. Henry R. Dulany, Walter Dulany and Jane S. Dulany, Ex'rs of Olivia W. Dulany.
• Court: Maryland Court of Appeals

50 Md. 524

HENRY R. DULANY, Walter Dulany and Jane S. Dulany, Ex'rs of Olivia W. Dulany v. HENRY W. ROGERS.

Henry W. Rogers v. Henry R. Dulany, Walter Dulany and Jane S. Dulany, Ex'rs of Olivia W. Dulany.

Court of Appeals of Maryland

February 26, 1879

The cause was argued before BARTOL, C.J., MILLER, ALVEY and ROBINSON, JJ.

H Rozier Dulany and Arthur W. Machen, for Dulany's executors.

In the absence of fraud, unless both parties labored under a mistake, and have done what neither party intended, relief cannot be given. Kerr on Injunctions, 55; Groff v Rohrer, 35 Md. 333; 1 Story Eq. sec. 151; Gillespie v. Moore, 2 John. Ch. 595; Townshend v Stangroom, 6 Ves. 333.

It may be argued, however, on the other side, that notwithstanding there was nothing equivocal or obscure in the writing, and notwithstanding the complainant is chargeable with knowledge of the words it contained, he may yet have misunderstood its legal effect. In any view of the case, however, the observations of Lord Romilly, in a recent case, are very appropriate here:

"I am of opinion that this is not properly a case of mistake at all. In those cases in which agreements have been set aside on the ground of mistake, there has been a mistake as to the agreement which has been entered into. That is not the case here, for the words of the agreement are not disputed on either side; nay, more, shortly after the agreement was entered into, it was so far ratified that under it the plaintiff was actually put into possession of the farm. All those cases which have been cited during the argument, are cases where there was either a dispute and doubt as to the thing sold, or where the words of the agreement expressed certain things in an ambiguous manner which might be misunderstood by one of the parties. In all those cases the court has held that it must look at the evidence, and that if the mistake is sufficiently proved, the court will then set aside the agreement. But here the words of the agreement are quite certain, and the only thing that was not, was the legal effect of certain words which it contained. Now that is no ground of mistake at all. It is a question upon the construction of an agreement agreed to by everybody concerned." Powell v. Smith, L.

R. 14 Eq. 89; Selden v. Myers, 20 How. 506; Watkins v. Stockett, 6 H. & J. 443, 444; 1 Story Eq. sec. 157; Kerr on Fraud, 407, 408, 413, 427-432; McElderry v. Shipley, 2 Md. 35; Beall v. Greenwade, 9 Md. 185; Carpenter v. Jones, 44 Md. 631; Kearney v. Sascer, 37 Md. 264; Slothower v. Gordon, 23 Md. 1; Mendenhall v. Steckel, 47 Md. 453; Tyson v. Hardesty, 29 Md. 309; Ellinger v. Crowl, 17 Md. 373; Cooke v. Husbands, 11 Md. 492; 1 De Gex & Smale, 33; 2 Phillips, 338; 30 Beav. 431-8; 1 Drewry & Smale, 42; Lloyd & Gould, temp. Sugden, 149; 2 Kay & John. 753.

It is evident that the alleged original agreement lacked that element of certainty which is indispensable, to justify the interposition of equity. Beard v. Linthicum, 1 Md. Ch. 348; Stoddert v. Bowie, 5 Md. 28.

Again, an agreement for the conveyance of land was required to be in writing, by the Statute of Frauds, and there were no acts of part-performance, done upon or in respect to the land, to take the case out of the Statute. In accordance with the law of England, the Maryland authorities conclusively establish the necessity of possession, or of some other acts done in relation to the land which is the subject of the contract in question, and conclusively pointing to the agreement. Semmes v. Worthington, 38 Md. 326, 328; Billingslea v. Ward, 33 Md. 51, 52; Hardesty v. Richardson, 44 Md. 621; Caton v. Caton, L. R. 1 Ch. 137; 2 H. L. 127; Surcombe v. Pinniger, 3 De G., M. & G. 603, 604; Dale v. Hamilton, 5 Hare, 381; Clinan v. Cooke, 1 Sch. & Lef. 40, 41; Frame v. Dawson, 14 Ves. 386; Hughes v. Morris, 2 De G., M. & G. 356; Stroughill v. Gulliver, 2 Jur. N. S. 700; 4 Kent, 451.

The reason why possession taken is part-performance is, that in the absence of some agreement, or established relation between the parties, the party so taking possession would be liable at law as a trespasser; and to prevent such a fraud upon him--a fraud with reference to the land in question, (not fraud in general, for any breach of contract may involve fraud, and it would be fraud in this sense, to obtain purchase money without giving the consideration,) equity will inquire what the terms of the contract were, and if they are distinctly proved, and the agreement is one it is equitable to enforce, may direct it to be specifically executed. Watts v. Evans, 4 Yo. & Col. 579, 580; Dale v. Hamilton, 5 Hare, 381; Ungley v. Ungley, L. R. 5 Ch. Div. 890.

The complainant has been guilty of inexcusable laches. Even if his omission to read the agreement in his own possession, while the other contracting party was living, could be overlooked, why did he not, at least, file his bill immediately upon the discovery of what it contained, and then tender a deed of reconveyance? When an action at law was brought, why did he resort to dilatory proceedings to hinder its progress, and put off filing his bill in the court of equity until two years and two months afterwards? The contract was signed in February, 1870, and the bill was filed in February, 1876--after a lapse of six years. Grymes v. Sanders, 3 Otto, 55; McQuiddy v. Ware, 20 Wall. 19.

Albert Ritchie, for Henry W. Rogers.

That Mr. Rogers did not understand, or consent to, the clause in question is shown:--

By the intrinsic evidence of the agreement itself. In determining such a question as this, the court will look at the provisions to see whether they are such as an intelligent, prudent man would probably enter into. Wisnall v. Hall, 3 Paige, 316; Philpot v. Elliott, 4 Md. Ch. 275-6; Mattingly v. Speck, 4 Bush, 316; Semmes v. Worthington, 38 Md. 322.

Now let in the fact that this land was not worth more than $4 or $5 per acre, and it becomes impossible to believe that Rogers understood and intended the provision in question.

This is made still more apparent, by considering the surrounding circumstances, and the rights of Rogers at the time of the execution of this agreement. He was then entitled to a conveyance of this land; and yet this agreement would make it appear as if he agreed, not only that he should be liable at the election of Walter Dulany, to buy land that had been offered as a bonus, and at four times its value, but that at the will of said Walter, he should pay $6000 for land that already belonged to him.

Rogers had performed his part of the parol agreement, and the partnership had been in operation for fifteen months. It would have been impossible to restore Rogers to his former position; impossible to estimate his damages in a suit at law, and it would have been a fraud upon him, had Mrs. Dulany then refused to perform her part of the agreement.

Equity, therefore, would have compelled a specific execution of the parol agreement. Browne on Statute of Frauds, secs. 448, 452-460, 463, 466; Sugden V. & P. 224, 229 (n); 4 Kent, sec. 451; Parker v. Smith, 1 Collier's Ch. 608; 1 Story's Eq. secs. 122-3; Rhodes v. Rhodes, 3 Sandf. 279; Malius v. Brown, Comst. 403; 1 Madd. Ch. 301-4; Fannin v. McMullen, 2 Abb. Pr. 224; Mundy v. Joliffe, 5 Mylne & Cr. 167, 177; Moale v. Buchanan, 11 G. & J. 314; Dugan v. Gittings, 3 Gill, 138; Phtlpot v. Elliott, 4 Md. Ch. 273; Mills v. Milbourne, 7 Md. 315; Semmes v. Worthington, 38 Md. 298, 327; Cole v. Cole, 41 Md. 301, 304; Hardesty v. Richardson, 44 Md. 617, 624.

In Winsall v. Hall, 3 Paige, 313, the court granted relief chiefly upon the ground that upon "taking all the circumstances of the case into consideration," the mistake was evident. "It is incredible that a man of any kind of prudence or

discretion would contract for," etc. Id.; and Philpott v. Elliott, 4 Md. Ch. 273, 275.

In Willan v. Willan, 16 Ves. 72, the court held that from the very terms of the agreement, the parties could not have understood it; and one of the parties being dead, and it not being practicable to reform the agreement to make it correspond with intention, the court ordered that it should be delivered up, and no use made of it at law or in equity.

In Matthews v. Tenvilliger, 3 Barb. 50, the agreement was read over to vendor, and it was discussed, but he did not understand its purport; and the court refused specific performance. Where there is fraud on part of purchaser, or mistake and inadvertence of vendor, the purchaser is not entitled to specific performance, but the vendor is entitled to have the instrument reformed. Ib.

Equity will reform where the meaning and intention are not expressed in the words used, though the words used were the ones intended. Smith v. Jordan, 13 Minn. 262.

Equity will grant relief, not only when the fact of the mistake is expressly established, but also, when it is fairly implied from the nature of the transaction. 1 Story's Eq. sec. 162.

In Wyche v. Green, 16 Ga. 49, the complainant's testator had prepared the deed in which existed the alleged mistake. The court say, that if the agreement is not as intended, it will be reformed; and "it is immaterial from what cause the defective execution of the intent of the parties originated," whether from "want of skill, or mistake, or from any other cause."

In Mattingly v. Speak, 4 Bush, 316, relief granted in part on the intrinsic evidence of the writing. The court also determines that its decree was not only in accordance with the evidence, but "with those reasons and motives which may be supposed to have influenced the grantor."

In Firmstone v. De Camp, 2 C. E. Green, 317, evidence was conflicting, and mistake denied, but, on all the circumstances relief was granted, and party enjoined. Huss v. Morris, 13...