Levin v. Favorite
| Decision Date | 13 November 1961 |
| Docket Number | No. 62,62 |
| Citation | 226 Md. 626,174 A.2d 723 |
| Parties | S. Louis LEVIN et ux. v. Erma M. FAVORITE. |
| Court | Maryland Court of Appeals |
Robert Parlett Conrad, Baltimore (Robert L. Sullivan, Jr., and Sklar & Sullivan, Baltimore, on the brief), for appellants.
Melvin J. Sykes, Baltimore (Dickerson, Nice & Sokol, Max Sokol and Emanuel H. Horn, Baltimore, on the brief), for appellee.
Before BRUNE, C. J., and HAMMOND, PRESCOTT, HORNEY, and MARBURY, JJ.
This case was tried below by Judge Harlan, sitting without a jury, in the Baltimore City Court. The plaintiff-appellee instituted a suit at law, claiming damages for the alleged default of the defendants-appellants, in failing to consummate an executed contract of sale of leasehold property. Judge Harlan found for the plaintiff and awarded damages in the amount of $1,500, the difference between the contract price and the price at which the property was later sold to another party. The defendants appeal.
They contend that the trial court erred in failing to find (1) that there was a misrepresentation as to the zoning of the property on the part of the plaintiff-seller, and (2) that there was a mutual mistake of fact made by the parties, either of which would render the contract voidable at the option of the appellants-buyers. Both contentions center around the fact that the property was being used as seven apartments, or dwelling units, under a temporary certificate from the Building Inspection Engineer (which the appellant, Evelyn Levin, admitted reading), pending approval or disapproval 'of the application after the building has been fully inspected,' but was not actually zoned for use and occupancy as a seven-unit multiple family dwelling.
The case, in large measure, turns upon a proper determination of the facts involved. It will suffice to say that Judge Harlan found that the appellants had not 'met the burden to show there was any misrepresentation under all of the evidence; [and] that there [was] no evidence to show fraud * * *, nor [was] there any evidence to show a mutual mistake of fact * * *' 1 and, after a careful analysis of the evidence, we are unable to say that his findings were erroneous. Maryland Rule 886. What we have said above is, of course, a complete answer to the appellants' contentions. 2 Cf. Dood, Inc. v. Universal Realty Co., 215 Md. 261, 137 A.2d 651.
However, in addition thereto, the terms of the written contract between the parties specifically provide that, 'title [to the property] to be good and merchantable, free of liens and encumbrances * * * except: [as to] Use and occupancy restrictions of public...
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Cavacos v. Sarwar
...The intermediate appellate court said that this clause was "an exact replica of th[e] contract provision" in Levin v. Favorite, 226 Md. 626, 174 A.2d 723 (1961), where this Court said in a case where the buyer contended on appeal that the parties were mutually mistaken that the subject prop......
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Dover Pool & Racquet Club, Inc. v. Brooking
...would be no liability for bare nondisclosure. Kannavos v. Annino, 356 Mass. 42, 46--47, 247 N.E.2d 708 (1969). Cf. Levin v. Favorite, 226 Md. 626, 628, 174 A.2d 723 (1961). In other States rescission has been decreed on the basis of mutual mistake of fact in circumstances like those before ......