Lamm v. Port Deposit Homestead Ass'n

• Decision Date: 27 June 1878
• Citation: 49 Md. 233
• Parties: JOHN LAMM, JR. v. THE PORT DEPOSIT HOMESTEAD ASSOCIATION of Cecil County.
• Court: Maryland Court of Appeals

49 Md. 233

JOHN LAMM, JR. v. THE PORT DEPOSIT HOMESTEAD ASSOCIATION of Cecil County.

Court of Appeals of Maryland

June 27, 1878

Appeal from the Circuit Court for Cecil County.

On the 12th of September, 1874, the Port Deposit Homestead Association of Cecil County, under a power of sale in a mortgage to it from a certain Silas Gorrell and wife, offered for sale in Port Deposit a certain house and lot, the sale being made for the Association by William J. Jones, its attorney, in pursuance of an order of said Association passed July 6th, 1874, whereby the said attorney was authorized "to make sales of property required to be sold for forfeiture of covenants in mortgages, and to do all things about said sales as fully as if done by this corporation." It was in evidence that the appellant inquired of said Jones at the time of the bidding at the sale, "who would deliver the property to the purchaser and when?" and that having received the answer "we will deliver possession within three months from the day of sale," continued bidding and the property was struck off to him; that he did not obtain possession of the property until February, 1876, and then only under a writ of habere facias. It was testified by Mr. Jones that he would not undertake to state with verbal accuracy the answer he made; that he might have said "you can get possession in about three months," or "I can get possession for you in about three months;" but that he was confident that he never made any promise to, or contract with, the appellant, that he the witness or the appellee would put the appellant in possession in three months or in any time; that he could not have made such promise or contract, for he knew he had no power to put the owner of the property out of possession. This action was brought to recover damages for the expenses incurred in obtaining possession of the property, and the loss of the intermediate rents and profits. The appellant testified that the house was a double one, and that after he obtained possession, he collected from the person who occupied one-half of the house full rent for such half from the day of sale; but that the person who occupied the other half had paid him nothing.

Exception.--At the trial below the defendant asked the following instruction:

That although the jury believe from the evidence that William J Jones stated at the sale in Port Deposit, that the defendant or that he, as its agent, would put the purchaser of the property into possession within three months from the day of sale, that said agreement would not be binding on the defendant, and the plaintiff cannot recover.

1st. Because the agreement was not reduced to writing and signed by the defendant, or its duly constituted attorney.

2nd. Because there is no evidence that William J. Jones was authorized by the defendant to make as its agent such a contract.

The court (Wickes and Stump, JJ.,) gave the instruction.

The plaintiff excepted and the verdict and judgment being against him he appealed.

The cause was argued before BARTOL, C.J., STEWART, BRENT, ALVEY and ROBINSON, JJ.

Alexander B. Hagner, for the appellant.

Under the instruction of the court below, the jury rendered a verdict for the appellee. This instruction it is respectfully submitted was erroneous.

The first ground upon which the court's ruling was based, involves the construction of the fourth paragraph of sec. 4, of the Statute of Frauds, and this we insist gives no support to the proposition under consideration.

It is quite clear that the words "contract or sale," etc., means "contract for the sale of," etc. Browne on Frauds, sec. 263. So that applying the general language of the section with this substitution, to the words of the fourth paragraph, it would read thus, "no action shall be brought, whereby to charge any person upon any contract for the sale of lands, tenements or hereditaments, or any interest in or concerning them, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed," etc., etc.

The contract which is required to be in writing is one for the sale of lands, etc., or for the sale of any interest in or concerning lands, etc. A contract ""concerning lands," etc., is not within the statute, unless it is also a contract "for the sale of an interest concerning lands." (Browne on Frauds, sec. 268.) It must be a contract which goes to take from the promisor the land or some interest in the land. Browne on Frauds, sec. 233.

It seems obvious that the present suit is not brought upon an agreement concerning the sale of lands, or concerning the sale of any interest in lands.

The contract concerning the sale of the interest in the lands was in writing, and has been fully executed. The purchaser has performed his part of that written contract, by paying the money, and the appellee has performed his part of the same contract by conveying to the purchaser "all the title which the mortgagor had in the mortgaged premises at the time of recording the mortgage;" (Code, Art. 64, sec. 10;) and with that contract we have nothing more to do. But the agreement upon which the plaintiff sued is quite a different contract from the contract of sale, although consistent with it and capable of being established by parol. McCreary v. McCreary, 5 G. & J. 156.

It is collateral to the written contract; and was in effect simply an agreement that the mortgagee would assume the expenses of ejecting the mortgagor whose entire title was to be sold. From the moment of the sale he became a mere trespasser, liable to be ejected by the purchaser, and the seller only agreed to assume the expense and trouble of compelling him to vacate, without cost to the purchaser, within a designated time. Of course in the event that the appellee should find it impossible to procure his removal, within the designated time, it became bound to respond in damages for the breach of the agreement.

The sale in this case, made under a power in a mortgage, and reported to the equity court, was a judicial sale, and is not within sec. 4 of the Statute of Frauds. Warfield v. Dorsey, 39 Md. 299.

Therefore the appellant could not have escaped from his responsibility as purchaser, upon the pretext he had not signed a written contract; nor on the other hand would the vendor, the agent of a court of equity, be allowed to repudiate any of the stipulations of his agreement of sale, because he had not signed a memorandum in writing, setting them forth. No such writing or signature is requisite to bind the one or the other; the only question being, what was the agreement? and the concession of the prayer is that the agreement was made as charged, though by parol.

The second ground for the instruction is, that there was no evidence that Mr. Jones was authorized by the defendant to make the contract.

If there was "any evidence in the case, from which a rational mind could draw the conclusion," the reason was erroneous. Can it be said that there was a total failure of evidence upon the point? It is not necessary that the agency should be constituted in writing. He might equally be empowered by parol. Baker v. Wainwright, 36 Md. 348.

And the evidence of all the plaintiff's witnesses might, for aught the court could tell, convince the jury, despite the disclaimer of Mr. Jones, that he was empowered to make the agreement as agent of the appellee. Mr. Jones' own evidence seems to indicate that he considered there was an obligation upon the appellee to file the application and obtain the habere without charge to the appellant, which tends to support our theory.

The...