Gorsuch v. Kollock

• Decision Date: 18 November 1921
• Docket Number: 26.
• Citation: Gorsuch v. Kollock, 139 Md. 462, 115 A. 779 (Md. 1921)
• Parties: GORSUCH v. KOLLOCK et al.
• Court: Maryland Court of Appeals

115 A. 779

139 Md. 462

GORSUCH v. KOLLOCK et al.

No. 26.

Court of Appeals of Maryland

November 18, 1921

Appeal from Circuit Court, Baltimore County; Frank I. Duncan, Judge.

Suit for specific performance by John T. Gorsuch against Henry G M. Kollock, Jr., and another.From a decree dismissing the complaint, plaintiff appeals.Remanded under Code, art. 5, § 38, without affirming or reversing.

Argued before BOYD, C.J., and THOMAS, PATTISON, URNER, and STOCKBRIDGE, JJ.

Rowland K. Adams and W. Calvin Chesnut, both of Baltimore, for appellant.

Daniel S. Sullivan, of Baltimore (Henry P. Pielert, of Baltimore, on the brief), for appellees.

BOYD C.J.

This is an appeal from a decree dismissing a bill of complaint, filed by the appellant against the appellees, seeking to have specifically enforced an alleged agreement between them for the sale of land sold by the appellees to the appellant, on or about the 1st of July, 1919.The tract is described in the bill by courses and distances, and the bill alleges that the purchase money ($400) was paid on the 26th of July, 1919, and since then that the plaintiff has occupied the entire tract described, with the exception of a few square feet upon which there is a chicken coop which belonged to the defendants, and which it was understood was to be removed by them; that he had full and exclusive use of said tract, and had performed in full and in every respect his part of the agreement.It is further alleged that the plaintiff had demanded a conveyance of the property, but that the defendant Kollock had, upon one pretext and another delayed and refused to execute a conveyance, so that it became necessary for a deed to be tendered, which was done and the defendants refused to sign it, or any deed.

The defendants by their answer denied that they had agreed to sell said land to the plaintiff, and alleged that they refused to execute the deed because they had never agreed to sell to the plaintiff the land demanded of them, and that they had offered to return to him the $400, and are ready and willing, and always have been ready and willing, to do do.It is further alleged in the answer that there is not now, and never has been, between them, or either of them, and the plaintiff, any contract or agreement, valid either at law or in equity, for the sale of the land described in the bill, or any other land belonging to the defendants, or either of them.

The real controversy between the parties only involved a strip of ground along a lot owned by Kollock, 10.64 feet wide, on the northerly side, and 49 feet on the southerly side thereof.The plaintiff is a contractor, and was engaged in the construction of a concrete bridge over Stemmers run, near the station of the Philadelphia, Baltimore & Washington Railroad Company of that name.Kollock was station agent of the company, and owned a small tract of land a short distance south of the station, having originally about 362 feet frontage on a public road, south of the railroad tracks, and having a width in the rear of 528 feet.He had sold one-half of that tract to George J. Jung and retained the other half, having a frontage of 187.28 feet on the public road and 264 feet in the rear.Mr. Gorsuch had dissolved partnership with his former partner, and desired some place near Baltimore to put his plant on, and in May, 1919, Mr. Kollock agreed to let him put it on his lot.He moved it on the eastern part of the lot, the cost of moving being, according to his claim, about $1,500 or $1,600.The parties differ as to that arrangement; Gorsuch claiming that Kollock agreed to lease it to him for at least eight years, at a price to be fixed by Kollock and his wife, and Kollock claiming that he let him place his plant there free of charge.No formal lease or written agreement was made about it, but Gorsuch built a shed 20 by 40 feet on the northwest corner of the eastern half of the Kollock lot, at a cost, according to his testimony, of $600, in which he placed some of his equipment.Nothing more was done about the lease, but Gorsuch remained in possession of the lot, his material covering about two-thirds of it, and about July 1, 1919, he spoke to Kollock in reference to buying the land.They had some negotiations concerning it, Gorsuch claiming that it was for the half of the lot remaining after the sale to Jung, but the defendants deny that anything was said about the half, and claim that they sold to the plaintiff the eastern part of the lot fronting 83 feet on the public road and running back with an even width of 83 feet in the rear.Although they differ thus as to what was purchased, they made some kind of agreement, although verbal, and Gorsuch paid on July 26, 1919, the purchase price agreed upon ($400), giving to Mrs. Kollock, in the presence of her husband, four $100 bills, which she in turn handed to her husband.The property which Gorsuch claims he purchased has a frontage of 93.64 feet on the public road and a width of 132 feet in the rear, being thus 10.64 feet on the public road and 49 feet in the rear more than the 83 feet which the Kollocks claim embrace the lot sold.

The testimony of Mr. and Mrs. Gorsuch and Mr. and Mrs. Kollock is in irreconcilable conflict as to what was agreed to be conveyed.The only additional evidence on the subject is that of Edward R. Herold, who was, in July, 1919, the chauffeur of Mr. Gorsuch, although before testifying he had left his employ.Without referring to it in detail, it is sufficient to say that his evidence alone would certainly not prove plaintiff's contention, and when it is taken in connection with that of the plaintiff and his wife we cannot reach the conclusion that the plaintiff's case is made out with sufficient certainty to overcome the positive testimony of the defendant and his wife.No deed, agreement, or memorandum was made before January, 1920, when the relations between these parties, which had been theretofore pleasant and most friendly, were broken off; and, when Gorsuch called on Kollock about running out the land he claimed to have bought, Kollock abused him and called him a thief and a rogue.Gorsuch occupied a good part of the lot, having entered under the previous permission given him, which Gorsuch testified was to be closed by a lease for eight years, but which the defendants emphatically deny.

Something might be said in support of the position of each side, but it is impossible for the court to feel reasonably certain that the plaintiff is entitled to the relief prayed for in the bill, after a careful and thorough examination of the evidence.Although it is admitted that the purchase money was paid, that the plaintiff is and has been since May, 1919, in possession of at least part of the property, and it is shown that some improvements had been made on it by him both before and after the supposed purchase had been made, it is positively denied by the defendants that the purchase money was paid for the property described in the bill; they claiming that it was for the 83 feet, and that the possession was given before any purchase was ever thought of, and that the improvements made after July 26, 1919, were not on the disputed area.

It must be borne in mind that the contract sought to be enforced is a parol one, and one that would be governed by the statute of frauds, unless it was clearly shown not to be within the statute.

"The right to specific performance in such a case is not founded upon the theory that part performance is a compliance with the statute, but upon the ground that such part performance takes the case entirely out of the statute."Miller'sEq. Proc. 708, § 704.

As said by that author in section 706, on page 809:

"The act relied upon as part

...