Manning v. Embert

• Decision Date: 23 June 1915
• Docket Number: 39.
• Citation: 95 A. 64,126 Md. 545
• Parties: MANNING v. EMBERT.
• Court: Maryland Court of Appeals

95 A. 64

126 Md. 545

MANNING v. EMBERT.

No. 39.

Court of Appeals of Maryland

June 23, 1915

Appeal from Circuit Court No. 2 of Baltimore City; Chas. W Heuisler, Judge.

Bill by Cleveland P. Manning against T. Howard Embert. From an order dismissing the bill, complainant appeals. Order reversed, and cause remanded.

Henry H. Dinneen and Charles J. Bonaparte, both of Baltimore (Paul M. Burnett, of Baltimore, on the brief), for appellant. William Milnes Maloy, of Baltimore (George Moore Brady, of Baltimore, on the brief), for appellee.

BURKE J.

The appellant, Cleveland P. Manning, is the owner of a leasehold property in the city of Baltimore known as No. 907 West North avenue. He and the appellee entered into a contract under seal for the sale and purchase of this property. The contract is here transcribed:

"This agreement, made this 27th day of February, 1914 between Cleveland P. Manning, of the city of Baltimore and state of Maryland, party of the first part, and T. Howard Embert, attorney and agent, of the city of Baltimore and state of Maryland, party of the second part. witnesseth that the said party of the first part does hereby bargain and sell unto the said party of the second part, and the latter doth hereby purchase from the former, the following described property, situate and lying in in the city of Baltimore and state of Maryland, more particularly described as No. 907 W North avenue, having a frontage of fifteen feet on North avenue and a depth of one hundred feet to a tenfoot alley subject to an annual ground rent of one hundred and twenty ($120.00) dollars, together with the buildings and improvements thereupon erected, and the rights, ways, and easements thereto belonging, or in any wise appertaining, at and for the price of three thousand two hundred and seventy-five ($3,275.00) dollars, of which $150 have been paid prior to the signing hereof, and the balance is to be paid as follows: Within sixty days from the date thereof. And upon payment as above of the unpaid purchase money, a deed for the property shall be executed at the vendee's expense by the vendor, which shall convey the property by a good and merchantable title to the vendee. Taxes, ground rent, water rent, and assessments to be paid or allowed for by the vendor to day of transfer.

FWitness our hands and seals.

Cleveland P. Manning. [Seal.]

T. Howard Embert, [Seal.]

Attorney & Agent."

"Test: R. B. Pue.

As to both parties."

Prior to the execution of this contract the appellant had given the appellee three written options to purchase the property. In each of these options the appellee was designated as attorney and agent, and the appellant obligated himself "to sell and convey to T. Howard Embert, attorney and agent, or to any person, or persons or corporations he may designate," etc. The appellee refused to comply with the terms of the contract, upon the ground that he was acting as attorney and agent for the Lord Calvert Theaters Company, a corporation which proposed to open a moving picture theater or parlor upon the premises, but by reason of objections on the part of property owners and others in the neighborhood the mayor and city council refused to pass an ordinance permitting it to do so, and that he had informed the appellant before the execution of the contract that he was acting in the purchase of the property as attorney and agent for the corporation. There were other defenses set up in the answer, but these were not supported by the proof and were not insisted upon in this court.

The appellant was ready, able, and willing to comply with his obligations under the contract, and, besides, lost a desirable tenant for the property by reason of the failure of the appellee to perform the contract. He demanded that the appellee complete the purchase, and upon his refusal to do so filed a bill in the circuit court No. 2 of Baltimore city for the specific performance of the contract. That court dismissed the bill, and the plaintiff has brought this appeal.

The single question presented by the record is this: Is T. Howard Embert, the appellee, personally liable on the contract upon which this suit is based? There is a broad and well-defined distinction in the authorities between simple contracts and contracts under seal with respect to the personal liability of a person to the contract designating himself as agent attorney, or in other representative capacity. The two classes of cases rest upon entirely dissimilar principles of law. Where one signs and seals an instrument by which he covenants to do certain things, the mere addition of the word "agent," or other words indicating that he is acting in a representative capacity, does not change or vary the legal effect of his undertaking. If he by the terms of the instrument imposes a personal liability upon himself, it is his own covenant, and he is personally liable upon it. This is the Maryland rule, and is supported...