Lawless v. Merrick

• Decision Date: 20 November 1961
• Docket Number: No. 57,57
• Citation: 227 Md. 65,175 A.2d 27
• Parties: Marjorie M. LAWLESS, Admrx., etc., v. Robert G. MERRICK et al., Trustees.
• Court: Maryland Court of Appeals

Page 65

227 Md. 65

175 A.2d 27

Marjorie M. LAWLESS, Admrx., etc., v. Robert G. MERRICK et al., Trustees.

No. 57.

Court of Appeals of Maryland.

Nov. 20, 1961.

Edward C. Donahue, Takoma Park (Donahue & Ehrmantraut, William A. Ehrmantraut, Joseph Schap and James T. Wharton, Takoma Park, on the brief), for appellant.

Thomas A. Garland and Charles C. W. Atwater, Baltimore, for appellees.

Before HENDERSON, HAMMOND, HORNEY, MARBURY and SYBERT, JJ.

SYBERT, Judge.

This appeal questions the propriety of the granting of a motion for summary judgment in favor of appellees (defendants below) by the trial court on grounds that there was no genuine dispute as to any material fact and that appellees were entitled to judgment as a matter of law.

The relevant facts begin with the purchase by appellees, Robert G. Merrick, John McC. Mowbray, and Walter C. Mylander, Jr., as trustees, of 582 acres of unimproved land in Fairfax County, Virginia. Ben W. Lawless, Sr. (whose administratrix was plaintiff below and is appellant here) had acted as broker in the sale to appellees and thereafter expressed interest in reselling the property for them. Toward this end he was anxious to procure sewerage facilities for the property, which obviously would make it more valuable and result in a greater commission on any resale. As a result of discussions between Colonel Mowbray and Mr. Lawless the latter on October 31, 1955 submitted in letter form the following proposal 'Following our conversation, this letter will outline the basis on which I would like to make an effort to get Fair-fax County permission for you or your grantee to build a pumping plant and force main leading to the proposed Fairfax County Pumping station to be erected at Braddock Road and Accotink Creek, all as shown on enclosed map of your property.' (Emphasis supplied.)

The specific terms by which compensation was to be determined are contained in the following portion of the letter:

'(a) No compensation to me unless such a permit is granted, or contract made with County for installation of improvement;

'(b) If permit is granted, or contract entered into, them on any subsequent sale of the property I am to receive at the time of such sale five percent of the amount by which the sales price exceeds the sum of $1,500 per acre plus any expense you have been to in connection with our arrangement, including cost of installation of the improvement, if you decide to build it yourself;

'(c) It may be that as a result of the negotiations by me under this arrangement, that a favorable deal may be worked out with the County and adjoining landowners for a more comprehensive system including the other lands, and perhaps a location of a pumping station lower down on Accotink Creek. If this negotiation has that result, then I would think you ought to recognize my effect, but as the matter is a bit nebulous, it is impossible to set up any terms for any compensation, and I am content to let it stand as follows: if, in your sole discretion, you think I am entitled to any compensation out of such a deal with the County and adjoining property owners, you may pay me, whatever in your sole opinion, you think I should receive, and if you decide that I am not entitled to any compensation for my effort, I do hereby and will submit to your decision, and will not make any claim for any compensation.' (Emphasis supplied.)

The letter stated that Lawless would have until April 30, 1956 'to complete my work and to secure a permit for this installation * * *'. There was a written acceptance of Mr. Lawless' proposal on behalf of the trustees in a letter of Mr. Mylander dated January 20, 1956, confirming an oral assurance 'to accept your services on the basis outlined.' Prior to the acceptance, Mr. Lawless had been actively seeking the desired sewerage improvements through various contacts with owners of adjacent land, as well as with Fairfax County officials. He appeared before the Board of Supervisors of Fairfax County on December 28, 1955 in an effort to obtain the necessary action by that body in regard to the improvements. Mr. Lawless recounted these efforts in a letter to Colonel Mowbray dated December 29, 1955.

On January 11, 1956, also prior to Mr. Mylander's letter of acceptance of Mr. Lawless' proposal of October 31, 1955, the Board of Supervisors, after the public session which Mr. Lawless attended, adopted by resolution a policy that one thousand acres of land south of Braddock Road and east and west of Accotink Creek would be permitted to drain by gravity into the Braddock Road Pumping Station. Due to the topography, the announced policy presumably would include the land owned by appellees, as to which the need of a separate pumping station would be eliminated. Mr. Lawless expressed in his letter of December 29, 1955, to Colonel Mowbray his opinion that 400 acres of the appellees' land could be served by gravity and that this type of sewage drainage should be pursued. He did not, however, suggest any change in his proposal of October 31, 1955, not yet accepted by the appellees, which specifically dealt with a permit for construction of a sewage pumping station, or a contract made with the county for installation of the improvement.

Mr. Lawless died on April 14, 1956. The trustees' land was not developed in any way, although a topographical survey, made in November, 1956, indicated that 540 acres of the tract was physically suitable for sewage gravity flow. The testimony is clear that no permit was ever granted or contract entered into by the trustees for the construction of any sewerage facilities, nor was any gravity system installed.

The land in question was still undeveloped when, on December 14, 1959, the appellees entered into a contract of sale by which they sold two hundred acres of the tract at $2,750 per acre. Thereupon demand was made by the administratrix of the estate of Mr. Lawless for a commission of five per cent of the sale price in excess of $1,500 per acre, relying on the agreement as set forth in the October 31, 1955 letter from Mr. Lawless to Colonel Mowbray. Appellant's position was that the estate was entitled to the commission on the ground that Mr. Lawless had, by his efforts, obtained the necessary permission for the sewerage improvements contemplated by the contract. Suit was instituted in the Superior Court of Baltimore City when the trustees refused payment. Appellees, denying any liability under the contract, moved for a summary judgment on the basis that the pleadings presented no genuine dispute as to any material fact and that they were entitled to judgment as a matter of law. The trial court granted the motion and appellant appeals from the judgment entered for appellees for costs.

Appellant alleges error in that: (1) 'the language used in this contract permits a genuine dispute as to the meaning of the contract and the intent of the parties', and (2) the evidence established partial or substantial performance of the contract.

(1)

The appellant maintains that the contract is ambiguous in its terms and hence that a genuine dispute expressed in the pleadings as to its meaning precluded the granting of a summary judgment. Thus it is plain that this argument is not...