Levin v. Cook

• Decision Date: 17 May 1946
• Docket Number: 145.
• Parties: LEVIN et ux. v. COOK et ux.
• Court: Maryland Court of Appeals

47 A.2d 505

186 Md. 535

LEVIN et ux. v. COOK et ux.

No. 145.

Court of Appeals of Maryland

May 17, 1946

Appeal from Superior Court of Baltimore City; E. Paul Mason, Judge.

Suit by Leon A. Cook and wife against Benjamin Levin and wife to recover damages for breach of covenant, in agreement of sale of land subject to annual ground rent, that heating plant was efficient and in good condition. Verdict and judgment for plaintiffs, and defendants appeal.

Judgment affirmed.

Justinus Gould, of Baltimore (Herman Berlin, of Baltimore, on the brief), for appellants.

Harvey C. Bickel and Gersh I. Moss, both of Baltimore, on the brief for appellees.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, and GRASON, and HENDERSON J.J.

COLLINS Judge.

This is an appeal by Benjamin Levin and Rebecca Levin, his wife hereinafter known as the appellants, defendants below, from a judgment on a verdict in the amount of $350 rendered by a jury in the Superior Court of Baltimore City against them and in favor of the appellees, Leon A. Cook and Edna May Cook, his wife, hereinafter known as the appellees, plaintiffs below. The case comes to this Court on an exception by the appellants to the admission in evidence of an agreement of sale made on the 31st day of May, 1944, and on the refusal of the trial Court to grant the demurrer prayer of the appellants and a motion for a judgment N. O. V. in favor of the defendants after the rendition of the verdict in favor of the appellees.

On the 31st day of May, 1944, the appellants entered into an agreement of sale to sell to the appellees certain property in Baltimore City subject to an annual ground rent of $54 to be created thereon. This agreement contained the following clause: 'The vendors hereby state and represent the heating plant and oil burner at the premises to be efficient and in good conditions throughout and the roof to be in not immediate needs of repairs.' An assignment of the leasehold interest was executed by the appellants to the appellees of this property on the 4th day of August, 1944. The deed of assignment did not contain the clause in the agreement of sale hereinbefore quoted.

On April 23, 1945, a suit was entered by the appellees against the appellants on the contract of sale and particularly on the quoted clause hereinbefore referred to, alleging that the heating system in the property did not function properly and was bad and inefficient and claiming $750 by reason of the failure of the heating system. As a result of that suit the jury rendered a verdict for the appellees in the amount of $350.

During the course of the trial the appellees offered in evidence the contract of sale hereinbefore referred to. An objection was made by the appellants. The objection was overruled and the contract admitted in evidence. This is the first exception before us here. The appellants contend that the acceptance of the deed or assignment by the appellees is the final execution of the whole contract making the preliminary contract null and void.

It has been stated many times by this Court that if a party can set up an antecedent or accompanying parol contract after conveying by deed thereby contradicting the deed there would be very little security or safety in deeds or in titles held under them. Bladen v. Wells, 30 Md. 577; West Boundary Real Estate Co. v. Bayless, 80 Md. 495, 509, 31 A. 442. It is also a settled principle of law that parol evidence is not admissible to contradict, add to, subtract from, or vary the terms of a deed or control its legal operation except where it is impeached for fraud or where it is sought to be reformed upon the allegations of fraud, accident, or mistake. Bladen v. Wells, supra; West Boundary Real Estate Co. v. Bayless, supra.

It was said in the case of Bryant v. Wilson, 71 Md. 440, at page 443, 18 A. 916: 'It may be no doubt, that parties may enter into covenants collateral to the deed, or there may be cases where the deed would be deemed only a part execution of the contract, if that clearly appears to be the intention of the parties. But, as said by the supreme court of New York, in Houghtaling v. Lewis, 10 John. 297, 299, 'the prima facie presumption of law, arising from the acceptance of a deed, is that it is an execution of the whole contract; and the rights and remedies of the parties, in relation to such contract, are to be determined by such deed, and the original agreement becomes null and void.'' Buckner v. Hesson, 159 Md. 461, 464, 150 A. 852.

However, it has been frequently held by this Court that parol evidence may be given of collateral and independent facts which tend to support a deed, provided it is not offered for the purpose of varying the agreement and is consistent with the deed. Dorsey v. Eagle, 7 Gill & J. 321, 331; Creamer v. Stephenson, 15 Md. 211, 222. The general rule is that by the execution and acceptance of the deed in pursuance of an agreement for the sale of land, such agreement of sale thence becomes null and void, except where the agreement contains covenants collateral to the deed or where the deed appears to be only a partial execution of the contract. Rosenthal v. Heft, 155 Md. 410, 418, 142 A. 598.

It was said in Bladen v. Wells, supra, 30 Md. at page 583: 'There are cases which clearly settle the law, that parol evidence may be offered to prove any collateral independent fact about which the written agreement is silent, as where an indemnity bond stipulated the obligor should pay all charges the obligee might incur in resisting a certain claim, but was silent as to the manner or means to be employed in resisting it. A parol agreement that the obligor should do so by his own counsel was held admissible. Creamer v. Stephenson, 15 Md. 211. The reason given for the admission of the proof in such cases, is that it does not in the least tend to contradict, vary or explain the written instrument.' Bryant v. Wilson, 71 Md. 440, 443, 18 A. 916, supra; Rosenthal v. Heft, 155 Md. 410, 418, 142 A. 598, supra.

In the case at bar there is no reference in the deed or assignment to the heating plant and oil burner and under the general rule laid down in Rosenthal v. Heft, supra, 155 Md. at page 418, 142 A. at page 602, the agreement here contains a collateral covenant. This covenant that the heating plant and oil burner were in good condition throughout is not inconsistent with the deed or assignment which contains a description of the property, the usual appurtenance and habendum clauses, and the special warranty. As the clause in question does not contradict the deed or assignment but is a covenant collateral to the deed or assignment, we conclude that the trial Court was correct in permitting the agreement in dispute to be offered in evidence. The deed or assignment here was only a partial execution of the contract between the parties. The first exception was therefore not properly taken. This covenant...