Jones v. Northwest Real Estate Co.

• Decision Date: 10 December 1925
• Docket Number: 31.
• Citation: 131 A. 446,149 Md. 271
• Parties: JONES ET UX. v. NORTHWEST REAL ESTATE CO.
• Court: Maryland Court of Appeals

131 A. 446

149 Md. 271

JONES ET UX. v. NORTHWEST REAL ESTATE CO.

No. 31.

Court of Appeals of Maryland

December 10, 1925

Appeal from Circuit Court No. 2 of Baltimore City; Robert F Stanton, Judge.

Bill by the Northwest Real Estate Company against James Clawson Jones and wife, to have second-story porch erected on defendant's house removed on ground that it was in violation of certain building restriction binding on land on which house was built. From a decree directing that porch be removed, defendants appeal. Affirmed.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES, PARKE, and WALSH, JJ.

Rowland K. Adams, of Baltimore (Isidor Goldstrom, of Baltimore, on the brief), for appellants.

Walter C. Mylander, of Baltimore (Charles M. Armstrong and William C. Cook, both of Baltimore, on the brief), for appellee.

WALSH J.

The Northwest Real Estate Company, the complainant below, filed a bill in equity against James Clawson Jones and Anita S Jones, his wife, the defendants below, alleging that the erection of a hip-roof second-story porch on the home of the defendant was a violation of certain restrictions binding on the land on which the house was built, and, from a decree of the lower court sustaining this contention and directing that the porch be removed, the defendants have appealed.

The testimony shows that in 1920 the appellee purchased a tract of about 170 acres of land in Baltimore city, at a cost of between $460,000 and $470,000; that this tract was subsequently laid off in lots; that streets, roads, and other improvements costing approximately $500,000 were made in it, and the whole development placed on the market under the name of Ashburton. It also appeared that the completion of the improvements throughout the whole tract would cost an additional $100,000; that 400 of the 600 lots in the development had been sold; that about 225 houses had been built on the lots thus sold; and that the deeds for all lots sold contained a number of uniform restrictive covenants. The avowed purpose of these covenants was to provide a general plan or scheme of development for the whole tract, and to insure its being and continuing to be a high-class residential district.

In June, 1923, the appellee conveyed to Elias H. Read and wife a lot of ground in Ashburton lying at the northeast corner of Egerton place and Dennison road, and on May 23, 1924, the appellants acquired title to this lot from the widow of Read. Both of the deeds by which these two conveyances were made contained the restrictive covenants found in all deeds for lots in Ashburton, and it is conceded that the appellants knew of the restrictions, and considered themselves bound by them. Prior to purchasing the lot, the appellants had secured plans for the erection of a two-family dwelling, and these plans called for what is known as a hip-roof second-story porch. Mr. Jones, one of the appellants, testified that, when looking at the lot with a view to purchasing it, he asked the saleman, Mr. Donovan, a representative of the George R. Morris Organization, of which Mr. George R. Morris, president of the appellee, was also president, whether or not second-story porches were permitted, and was told by him that they were, and his attention was called to several houses in the vicinity which had second-story porches, but it does not appear that the appellant Jones at that time exhibited his plans to Donovan, or advised him of the character or kind of second-story porch he proposed to erect.

Several days after he acquired title to the lot, the appellant Jones, in compliance with the ninth covenant in his deed, submitted his plans to George R. Morris for approval, and, while waiting in the office of the appellee, which was also the office of the George R. Morris Organization, Donovan, whom he found there, looked over his plans and told him "they looked mighty fine," and he did not think he would have any trouble with them. However, when the plans were shown to Mr. Morris he made several objections to them, and particularly objected to any second- story porch, Mr. Jones agreed to modify the plans to meet all of Mr. Morris' objections except as to the second-story porch, and on this point he told him of Donovan's statements to him prior to the time he bought the lot, and also stated that some of the houses already built in Ashburton had second-story porches. Mr. Donovan was then called in and confirmed the statements of Mr. Jones, and after the plans of the six or seven houses in the addition which have second-story porches had been examined, Mr. Morris stated that he would approve a second-story porch similar in design to any of those already existing, but he would not approve the sort of second-story porch shown on the appellant's plans. Mr. Jones then left, and several days later he and Mr. Tase, a builder, called on Mr. Morris and again tried to secure his approval of the plans. Mr. Morris still refused to approve them, and after Mr. Tase had said, "If I were building the house, I would build it the way shown on the plans; of course, my advice to Mr. Jones would be the same thing," both Mr. Tase and Mr. Jones left. The plans were retained by Mr. Morris, and, when a young man from Mr. Jones' office called for them a few days later, they were given him with the porch scratched off and the plans marked, "Approved, subject to changes noted." This young man signed Mr. Jones' name to the plans, per his own, purporting to accept them as modified, and subsequently Mr. Jones began the erection of the house, but did not employ Mr. Tase to build it. On October 3, 1924, an inspector for the appellee noticed that the appellants were erecting the porch called for in the original plans, and, being unable to get in personal touch with Mr. Jones, a letter was sent to him by the George R. Morris Organization, calling his attention to the second-story porch being erected, and advising him that unless the porch was changed to conform to the approved plans steps would be taken to stop the work. This letter was not answered, and on October 10, 1924, the bill of complaint in this case was filed, and the ensuing suit resulted as above set forth.

It was charged in the bill that the work on this porch was rushed for the purpose of getting it built before the appellee could interfere, but this allegation cannot be sustained, because, according to the testimony, it was practically completed before the defendants received the letter above mentioned. Nor do we find any support for the allegation in the defendants' answer that the appellee did not act in good faith in refusing to approve the plans originally presented. This disposes of the charges of improper conduct by the respective parties, and brings us to a consideration of the real question in the case, which is the validity and meaning of the ninth covenant in the defendants' deed, and the legality and effect of the conduct of the parties thereunder. This covenant reads as follows:

"(9) No building, fence, wall or other structure shall be commenced, erected, or maintained on, or shall any addition to, or change or alteration therein, be made, until the plans and specifications, showing the nature, kind, shape, height, materials, location, and approximate cost of such structure and the grading plan of the plot to be built upon, shall have been submitted to and approved in writing by the party of the first part. The part of the first part shall have the right to refuse to approve any such plans or specifications or grading plan, which are not suitable or desirable, in its opinion, for æsthetic or other reasons; and in so passing upon such plans, specifications, and grading plans it shall have the right to take into consideration the use and suitability of the proposed

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