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.
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,...
