Jarrett v. Scofield

• Decision Date: 11 November 1952
• Docket Number: No. 31,31
• Citation: 92 A.2d 370,200 Md. 641
• Parties: JARRETT v. SCOFIELD et al.
• Court: Maryland Court of Appeals

Page 641

200 Md. 641

92 A.2d 370

JARRETT v.SCOFIELD et al.

No. 31.

Court of Appeals of Maryland.

Nov. 11, 1952.

Charles A. Thompson, Cambridge (V. Calvin Trice and Harrington & Thompson, Cambridge, on the brief), for appellant.

William D. Gould, Cambridge (Gould & Edmondson, Cambridge, on the brief), for appellees.

Before MARKELL, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

HAMMOND, Judge.

In 1944, J. Wilbur Jarrett, the appellant, bargained and sold unto Scofield Brothers, the appellees, by written contract, certain timber standing on his property in the Taylors Island Election District of Dorchester County.One of the covenants of this contract was for quiet enjoyment, expressed in the following language:

'That the said parties of the second part shall have (legal--J. S.) quiet and peaceful possession of the land while cutting and removing said trees and timber, and shall not be involved in any (just--J. W. J.) disputes as to the right to cut and remove said trees and timber, the said party of the (1st--J. S.) part hereby covenanting to protect and save them harmless in the event of any contention as to lines or boundaries or their right to cut and remove the trees and timber herein bargained and sold.'

The word 'legal', followed by the initials 'J.S.' in parentheses, and the word 'Just', followed by the initials 'J. W. J.' in parentheses, were inserted by the parties at a conference immediately preceding the execution of the contract.

Shortly after its execution and after the cutting of the timber had begun, one Oliver Gore brought an action of trespass in the Circuit Court for Dorchester County against J. Wilbur Jarrett and Joseph Scofield, one of the partners of Scofield Brothers, alleging that these defendants had entered upon his land and cut down and carried away a large number of his trees.The court gave a directed verdict in favor of Jarrett, and the jury found in favor of Scofield, thus establishing the title and possession of Jarrett to the lands on which grew the timber he had sold to Scofield Brothers, and as to which he had executed the covenant of quiet enjoyment.This court affirmed the judgment of the lower court in Gore v. Jarrett, 192 Md. 513, 64 A.2d 550.

After the institution of the trespass suit, a meeting was called to discuss the strategy and mechanics of its defense, attended by Messrs. Jarrett and Joseph Scofield, Lawrence Simmons, a surveyor, and Messrs. James A. McAllister, V. Calvin Trice and Emerson C. Harrington, Jr., attorneys of Dorchester County.McAllister and Trice represented J. Wilbur Jarrett.Emerson C. Harrington, Jr. was Mr. Scofield's counsel, and for him, had prepared the contract here involved.However, he had on occasion also represented Mr. Gore, the plaintiff in the trespass suit, and informed Mr. Scofield that he would be unable to represent him in that case.Mr. Scofield then, on the spot, employed McAllister and Trice to represent him, and agreed to pay them each a retainer fee of $100.00.This he did within a day or two, marking the checks 'Retainer Fee per Agreement 12-19-44'.The trial and appeal in the trespass case took some four years, during the course of which Mr. Scofield mailed to McAllister and Trice four additional checks for $200.00 each, two in 1948, marked on their face 'Account Legal Fees, Jarrett Case', and two in 1949, marked 'Balance due on legal fee Jarrett Case', on McAllister's check, and 'Balance on Gore Case', on Mr. Trice's check.After the affirmance of the trespass suit in this court, Mr. Scofield, for the first time, made demand on Mr. Jarrett for the counsel fee which he had paid McAllister and Trice.Mr. Jarrett made no reply to a series of letters requesting payment of the thousand dollars.

As a result, a suit was brought for its recovery by Joseph Scofield and others, trading as Scofield Brothers, against J. Wilbur Jarrett.It was tried before the court without a jury, and the court found for the plaintiff.It is the contention of the appellant that this was error because he covenanted only against disturbance in the possession and enjoyment of the appellees by one having a legal and just right, by virtue of paramount title, to evict.He contends, further, that since Mr. Gore's rights were said by the jury and this court not to fall within that category, there has been no breach of his covenant, and consequently, the appellees may not recover from him either damages or expenses.The appellees, on the other hand, take the position, shared by the court below, that the obligation under the covenant went so far as to protect and save Scofield Brothers harmless 'in the event of any contention as to lines or boundaries, or to right to cut and remove the trees and timber herein bargained and sold.'We think that the appellant is right.The covenant of quiet enjoyment is that the appellees shall have legal quiet and peaceful possession, and obligation arises only in the case of just disputes as to the right to cut and remove said trees and timber.As we see it, the language relied on by the appellees, which concludes the paragraph in question, does not add to nor extend the scope of the undertaking of the covenantor so as to include assaults on title or lines, unfounded or unjust as a matter of law.

It is the established rule that a covenant of quiet enjoyment is broken only by entry upon or an expulsion from the land or some actual disturbance of the possession of the land by virtue of paramount title or right.There must be an eviction or ouster, actual or constructive, from the premises conveyed or leased, or some portion thereof by title paramount.The covenant for quiet enjoyment is not broken by a disturbance of possession by one who asserts an inferior right to...