McBriety v. Spear

• Decision Date: 20 July 1948
• Docket Number: 196.
• Parties: McBRIETY et al. v. SPEAR et al.
• Court: Maryland Court of Appeals

60 A.2d 528

191 Md. 221

McBRIETY et al. v. SPEAR et al.

No. 196.

Court of Appeals of Maryland

July 20, 1948

Appeal from Circuit Court, Dorchester County; W. Laird Henry, Chief Judge.

Bill in equity by Frederick P. McBriety and another against Henry V Spear and another to have forfeited as liquidated damages a deposit made by the defendants in connection with the purchase of real property. From a decree of dismissal, the complainants appeal.

Decree affirmed.

MARBURY C.J., dissenting.

McBriety & Mace and Frederick P. McBriety, all of Cambridge, for appellants.

Brinsfield & Malkus, of Cambridge, for appellees.

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

GRASON, Judge.

On February 4, 1947, Henry V. Spear was an infant under the age of twenty-one years, and did not attain his majority until September following. He was married to Eva M. Spear, who was of age, and these young people were the parents of one child. Spear served in the late war. They were having considerable difficulty in getting a place to live.

Spear went to see Frederick P. McBriety, who was at that time engaged in developing a property located in Cambridge Maryland. McBriety told him he could not rent the houses he was building, because he had to sell them in order to get money to continue the development. There was a house in the course of erection at that time. Mrs. Lucile H. McBriety, the wife of Frederick P. McBriety, proposed to buy this lot of ground and the house that was being erected thereon from her husband, and sell it to Spear. Spear evidently had very little money, and it was proposed that the purchase of the property be financed by a loan thereon to Spear, secured by him under the Servicemen's Readjustment Act of 1944, 38 U.S.C.A. § 693 et seq. It was suggested that pending the obtention of the loan by Spear the property, when ready for occupancy, would be rented to Spear for six months, or until he secured the loan.

As a result of this conference a contract of sale was drawn and executed on February 4, 1947. It was signed by Mrs. McBriety and Spear, as well as by Mr. McBriety and Mrs. Spear. It provided that the property was to be sold 'At and for the price of Five thousand two hundred and fifty Dollars, of which one hundred and fifty Dollars, have been paid prior to the signing hereof and the balance to be paid as follows When Veteran's loan presently to be applied for is approved and ready for disbursement.' On the same day Mrs. McBriety signed a letter to Spear, in which she agreed to rent the property covered by the contract of sale to him for a term of six months, the term commencing on the date that the house was completed. In this letter she acknowledged the payment from Spear to her of $300 as prepayment for the rent of the property during the six months' term.

The house was completed and ready for occupancy on April 1, 1947, when the Spears moved in and took possession. In August, 1947, Spear notified McBriety that he was going to disaffirm the contract, and demanded repayment to him by Mrs. McBriety of the payment he made to her of $150. at the time of the signing of the contract of sale. The Spears moved out of this property at the end of September, 1947.

On August 19, 1947, McBriety and his wife filed a bill of complaint in the Circuit Court for Dorchester County, in Equity, setting out the facts narrated, and other matters which we need not refer to, and prayed that the deposit of $150, to which we have referred, be decreed to have been 'forfeited as liquidated damages.' There are other prayers in the bill, to which we need not refer.

Defendants answered, testimony was taken, the case heard and considered, and the chancellor, by his decree, dismissed the bill of complaint, and further decreed 'that the complainants refund and pay unto the Defendants the sum of One Hundred Fifty Dollars ($150.00), * * * and pay the costs of these proceedings.' The plaintiffs appealed.

It was stipulated by the parties, that the only issue before the chancellor was 'whether the $150.00 deposit made by the defendants as described in Complainants' Exhibit 'A' (the contract of sale) should be returned to the defendants or be retained by the plaintiffs as liquidated damages.'

Spear testified: 'After I was there the first two months the refters overhead started warping. That bent and broke the wallbord overhead. I informed Mr. McBriety about it. He had it fixed; had the rafters overhead spliced. I think there is three or four rafters spliced. I think there is two in the bedroom and one in the living room. That rafter is sawed half in two. They have the rafter tacked up to the ceiling with a piece of floor.' On cross examination he was asked by Mr. McBriety (who represented himself and his wife):

'Q. You knew the house was built of green lumber? A. You didn't tell me it was built of green lumber.'

McBriety testified that three or four days before the contract was signed, when Spear came to their residence to try to rent a house from them, 'Mrs. McBriety said to Henry Spear 'I will buy the house from my husband on Leonard Lane if it will accommodate you. It will not be ready to occupy until about April 1st. Of the $450.00 you have paid me on No. 9 Cherry Street, I will rent you the house for six months for $300.00; the remaining $150.00 can be your deposit on the purchase price of the house on Leonard Lane. When you become twenty-one years of age it is my understanding you will apply for a mortgage to be guaranteed by the Veteran's Administration for the balance of the purchase price of the property on Leonard Lane.''

So what we have in this case is a contract made by a minor to buy a house and lot when he became of age, if he could obtain a loan from the Veteran's Administration for the balance of the purchase price, to wit, $5100. Mention has been made in the briefs of the Act of the General Assembly of Maryland, 1947, Chapter 13, which was approved February 14, 1947. This Act was passed for the purpose of enabling veterans who are minors to receive the benefits of the Servicemen's Readjustment Act of 1944. The contract of sale in this case was executed before this Act was passed, and it is perfectly plain that the parties did not contemplate that a future law would have anything to do with, or at all govern, this transaction. The contract was to be consummated when the minor became of age. The case before us involves a contract for the sale of land, entered into by adults with one whom they knew to be under the age of twenty-one years; and would not attain that age for seven months thereafter; and it was the clear intention of the parties that this contract was not to be consummated until the minor attained full legal age.

It is a...