Kaminski v. Wladerek

Decision Date13 January 1926
Docket Number52.
Citation131 A. 810,149 Md. 548
PartiesKAMINSKI ET UX. v. WLADEREK.
CourtMaryland Court of Appeals

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

Bill for specific performance by John A. Wladerek against Antoni Kaminski and wife. Decree for plaintiff, and defendants appeal. Affirmed.

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

Milton Dashiell and George L. Fornoff, both of Baltimore, for appellants.

James F. Thrift, of Baltimore (McIntosh & Thrift and T. Tilden Kelbaugh, all of Baltimore, on the brief), for appellee.

DIGGES J.

On June 19, 1920, Antoni Kaminski and Tekla Kaminski were the owners in fee simple, as tenants by the entirety, of a lot and improvements thereon in the city of Baltimore, known as No 2044 Gough street, the same having been acquired by deed from Jozef Sobus and wife, and, being so seized, Antoni Kaminski in contemplation of his absence from the state, executed a power of attorney to his wife, Tekla Kaminski, in the following form:

"Know all men by these presents that I, Antoni Kaminski, at present of Baltimore city and state of Maryland, intending hereby to leave the state of Maryland, do hereby constitute, nominate, and appoint my wife, Tekla Kaminski, of Baltimore city and state of Maryland, to be my true, sufficient, and lawful attorney, for me and in my name, place, and stead, to grant, convey, or assign unto any purchaser or purchasers, their heirs or personal representatives and assigns, or to any body corporate, its successors and assigns, all those two lots of ground, known as No. 2313 Fleet street, said property being on the south side of Fleet street, distant one hundred and twenty-five feet and nine inches east from Patterson Park avenue, with a front of twelve feet and five inches on south side Canton avenue and an even depth of sixty feet southerly of sixty feet, said property being subject to annual ground rent of $16.25, being the same lot of ground which by deed dated May 3, 1920, and recorded among the Land Records of Baltimore City in Liber S. C. L. No. 3576, folio 15, from Ignacy Popiolek and wife to myself; and the lot being known as No. 2044 Gough street, said property being on the north side of Gough street distant one hundred and sixty feet eight inches east of Castle street, with a front of fourteen feet four inches on the north side of Gough street, and an even rectangular depth of seventy-eight feet to an alley three feet wide, said lot being in fee simple, being the same lot of ground which I have acquired from Jozef Sobus and wife. I also authorize and empower my wife the said Tekla Kaminski, to collect all the rents or other sum of money which may be or become due to me, and to give receipts therefor in my name and to pay all taxes or assessments, levied or assessed upon my property, real or leasehold, and generally to do all other lawful acts and things whatsoever concerning the premises as fully and in every respect as I might or could do were I personally present at the doing thereof. Witness my hand and seal this 19th day of June 1920.
Antoni Kaminski. [ Seal.]
Teste: Genevieve D. Jarzy.
State of Maryland, City of Baltimore--to wit:
I hereby certify, that on this 19th day of June, in the year one thousand nine hundred and twenty, before me, the subscriber, a notary public of the state of Maryland, in and for Baltimore city aforesaid, personally appeared Antoni Kaminski, and he acknowledged the aforegoing power of attorney to be his act and deed. As witness my hand and notarial seal.
Genevieve D. Jarzy, Notary Public. [ Seal.]"

This power of attorney was recorded on August 30, 1921, in Liber S. C. L. 3774, folio 51, of the Land Records of Baltimore city. A day or two subsequent to the execution of this power of attorney, Antoni Kaminski went to Poland and remained until some time in the latter part of August or the first of September, 1923. During the absence of the husband, on the 24th day of June, 1922, Tekla Kaminski executed the following written agreement under seal with John A. Wladerek, the appellee:

"This agreement, made this 24th day of June in the year 1922, between Tekla Kaminski of the city of Baltimore in the state of Maryland, hereinafter designated as landlord, and John A. Wladerek of the city and state, hereinafter referred to as tenant, witnesseth:
That the said landlord does hereby rent to the said tenant, this room and cellar of the premises No. 2044 Gough street and all the fixtures and chattels contained therein consisting of one ice box, meat slicer, combination coffee and meat grinder, computing scale, counter scale, one Walker bin counter, one side of shelving with Walker bins, one side of plain shelving, saws and knife, two meat blocks and meat counter, for the term of one year beginning on the 24th day of June in the year 1922, and ending on the 24th day of June in the year 1923, at and for the sum of $540 for said term, payable in equal monthly installments of $45 in advance on the 24th day of each and every month in said agreement.
And the said tenant hereby covenants that he will keep the premises in good order, and surrender the peaceful and quiet possession of the same at the end of said term, in as good condition as when received (the natural wear and decay of the property or unavoidable accidents excepted); and, further, that the said tenant will not do, suffer, or permit anything to be done, in or about the premises, which will contravene the policy of insurance against loss by fire; and, further, that whatever alterations or repairs the said tenant shall be permitted to make shall be done at his own expense.
It is further agreed that, if the rent shall be 10 days in arrear, the landlord shall have the right to distrain for the same, and to reenter and take possession; and, if the tenant shall violate any of the covenants on his part herein made, the landlord shall have the right, without formal notice, to re-enter and take possession; and, if the property shall be destroyed or rendered untenantable by fire, the tenancy hereby created shall thereby terminate, and all liability for rent hereunder shall cease upon payment proportionately to the date of fire or other unavoidable accident.
It is further agreed that the tenant has the right and option to extend this agreement for the period of another year after the termination of the term mentioned, for the same rental, and subject to all the covenants and agreements contained herein; and, further, the said tenant has the right and option at any time during the agreement or the renewal of same to purchase the entire property No. 2044 Gough street in fee simple at and for the sum of $6,200.
The above agreement has been read by both of us, as witness our hands and seals the day first above written.
Tekla Kaminski. [ Seal.]
John A. Wladerek. [ Seal.]
Teste: Philip Wladerek.
Recorded August 23, 1922, in S. C. L. 3898, folio 602."

This agreement provided for the renting of a portion of the Gough street premises. and all the fixtures and chattels contained therein, to the appellee for the term of one year beginning the 24th day of June, 1922, for the sum of $540, payable in monthly installments of $45 in advance on the 24th day of each month. It was further agreed therein that the appellee had the right and option to extend the agreement for the period of another year after the termination of the term mentioned, for the same rental, and subject to all convenants and agreements contained in the instrument; that, at any time during the agreement or the renewal of the same, the appellee was given the option to purchase the entire property, 2044 Gough street, in fee simple at and for the sum of $6,200. The appellee, immediately upon the execution of the agreement, entered into possession of the property rented to him as tenant, and made improvements upon the property to the extent of about $400. He promptly paid the rent as it became due, and in May, 1923, about one month before the expiration of the first year, he saw Mrs. Kaminski and told her he was thinking of closing the deal as per the agreement, but was persuaded by her not to exercise the option of purchase at that time, as the rental meant a great deal to her; and it was suggested by her that he stay another year, paying the rent, and he could exercise the option to purchase before the second year expired. This was done. On November 6, 1923, after the return of Antoni Kaminski, the attorney of the appellee wrote to the appellants, stating that he had completed the search of the title of the property purchased from them by Mr. Wladerek, and asked them to be at his office on Thursday at 1 o'clock to sign the deed. They did not appear, but the appellee's attorney received a letter from the attorney for the appellants, dated November 9, 1923, in which it was stated:

"I am authorized by Antoni Kaminski and Tekla Kaminski to say that they do not wish to sell the property mentioned in your letter to them; i. e., 2044 Gough street."

On November 23 of the same year the appellee, through his attorney, notified each of the appellants that he was desirous to consummate the purchase from them of the house in question, and, with that end in view, would be at their house, 2044 Gough street, on the Friday following at 6 p. m. for the purpose of having them execute the deed and pay the money. Nothing having been done, on June 3, 1924, the appellee by letter informed the attorney for the appellants that he was desirous without further delay to consummate the purchase of the property in accordance with the agreement and with this object in view advised them that, on June 17, 1924, at 4 p. m., he would be ready to pay in full for said property. On June 13,...

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