Morris v. Wilson

• Decision Date: 31 October 1946
• Docket Number: 15.
• Citation: 49 A.2d 458,187 Md. 217
• Parties: MORRIS et ux. v. WILSON et al.
• Court: Maryland Court of Appeals

49 A.2d 458

187 Md. 217

MORRIS et ux. v. WILSON et al.

No. 15.

Court of Appeals of Maryland

October 31, 1946

Appeal from Circuit Court, Cecil County; J. Owens Knotts, Chief Judge, and William R. Horney, Judge.

Suit by James G. Morris and wife against Andrew W. Wilson and others for specific performance of a contract of sale of realty. From a decree dismissing amended and supplemental bills without prejudice to any remedy at law, plaintiffs appeal.

Decree affirmed.

G. Elbert Marshall, of Easton, for appellants.

Richard Carvell, of Chestertown (William J. Bratton and E. D. E Rollins, both of Elkton, on the brief), for appellees.

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

MARKELL, Judge.

In October, 1943, Andrew W. Wilson, his brother Alexander Wilson and his sister Mrs. Cochran (defendants, appellees) owned the Reybold Wharf Farm, on the Elk River, in Cecil County. They acquired the farm under the will of their father, who died in 1907, subject to a life interest of their mother, who died in November, 1934. By a writing, dated November 20, 1934, Andrew was, by his brother and sister 'authorized to manage the Reybold Wharf Farm and to collect all receipts from same and to make all necessary expenditures'. Andrew lives at Georgetown, Kent County and Alexander has lived in Cecil County for 53 years. Mrs Cochran, who in 1943 was 75 years old, lives in Florida. Her son Fletcher Cochran lives in New Jersey and is engaged in business in New York City. In 1935, as 'executor' of her mother's 'estate', she gave Fletcher a power of attorney. In 1939 she gave him a general power of attorney as to 'her real and personal property wherever situated'. Mrs. Cochran, under her mother's will, had a life interest, with remainder to her children, in the 'Pearce Farm', which adjoins the Reybold Wharf Farm but has no water front. The Pearce Farm therefore is more salable with the Reybold Wharf Fram than separately.

Thus in 1943 Fletcher had authority to sell Mrs. Cochran's interest in either or both farms, but no authority to sell Andrew's or Alexander's interest in the Reybold Wharf Farm; Andrew had no authority to sell his sister's interest in the latter farm. When asked whether Andrew had the right to sell Reybold Wharf Farm or Mrs. Conchran's interest in it, Fletcher testified, 'No, I don't think so. * * * our method of procedure in the sale of anything connected like this Reybold Wharf Farm would be to submit whatever offers or propositions had been made for approval and, in that event, if we all agreed, why then we would have a sale'. This prudent practice was pursued without much consideration for third persons.

For some time the owners of both farms had wanted to sell them. On July 26 and August 25, 1943 Fletcher wrote to Clark Grieb, of Chestertown, undertook to give him an exclusive agency for '60 to 90 days' to sell both farms, and said, 'Tentatively a figure of $8,500 for Reybold Wharf and $22,500 for the Pearce Farm will do for a starter'. Some time in July or August Andrew had another purchaser for the farm, and went to the office of Mr. Harrison W. Vickers, in Chestertown, to consult him. They telephoned Fletcher, who said, 'Don't do anything. * * * I have placed this farm in Mr. Grieb's hands'. Grieb was present. On September 21, 1943 Grieb negotiated a sale of both farms to Wilbur Hubbard for $30,000 and obtained a deposit of $5,000 from Mr. Hubbard. A contract of sale, in the names of the respective owners, of both farms, was prepared and sent to Fletcher for circulation and execution by the several parties. Fletcher says, 'as soon as [he] had received this sale contract', he called Andrew up and told him that Grieb had sold both farms to Mr. Hubbard. Andrew says, we think correctly, that he did not know anything about the Hubbard sale until after October 2, 1943.

At intervals during the five years before 1943 Andrew and Alexander had spoken about the farm to Orange B. Burrell, a real estate broker at Earleville, stating a price and asking him to sell it. Andrew says he employed Burrell to sell the farm to net the sellers $9,000. Burrell sold it to plaintiffs (appellants) for $9,500 and was to be paid $500. Andrew consulted with Alexander about the sale; 'he agreed to it, first get your money'. Burrell says when he made the sale to Mr. Morris, he 'was selling the whole farm', not just the interest of Alexander and Andrew. Andrew says that before the sale to plaintiffs he told Fletcher the farm was in Burrell's hands and Fletcher didn't make any objection to it and knew Burrell was trying to make a sale.

Plaintiffs live in Philadelphia above the husband's store. Their daughter, now 25, has been employed in her father's store since she was 18. Among her duties, when her father is away, is to open the mail 'and take out the checks and see that they get to the bank'. Unless the mail concerns the business, she puts it aside (without reading it) for him to read when he gets back.

On October 1, 1943 plaintiff husband came to Cecil County looking for a river front farm. He met Burrell, was shown several farms, and made out and turned over to Burrell a deposit check for the Reybold Wharf Farm, viz., a check dated October 1, 1943, to the order of Andrew Wilson, Agent, for $500, 'Deposit on Wilson Farm at Reybold Wharf for the purchase price of $9500.' After Mr. Morris had left, Burrell saw Andrew and offered him the $500 deposit check but Andrew said he would not take it 'until we have an agreement.' The next morning, Saturday October 2d, Burrell and Andrew went to Elkton, saw a lawyer, Mr. James Weinroth, and 'Mr. Burrell dictated the agreement to Mr. Weinroth.' Andrew signed it as agent, and Burrell mailed it in duplicate to plaintiffs, who signed one copy and returned it by mail. Andrew deposited the check in an account in his name as agent.

The agreement, dated October 2, 1943, between Andrew W. Wilson, Agent, Seller, and plaintiffs, Buyers, provides that: Seller sells to Buyers 'All that certain farm', known as 'Reybold Wharf Farm', for $9,500 payable, $500 received, the balance of $9,000 within 30 days; Buyers 'shall receive immediate possession' for repairs and improvements, but no buildings and improvements shall be torn down 'before full settlement;' Seller will within 30 days execute a deed to the farm, 'free and clear of any liens and encumbrances', and 'in the event that the said Seller is in anyway unable to give such deed then any sum or sums paid shall be refunded by the said seller;' and if Buyers shall fail to make settlement within 30 days, then 'the said $500 paid hereon shall be deemed liquidated damages for their failure so to do and shall not be returned to them.'

The same day, October 2d, Andrew wrote to Fletcher that Burrell ahd sold the farm to Morris for $9,500.

'We are to pay Mr. Burrell $500 as his commission, which leaves us $9000 clear. Jimmie Weinroth drew up a lease this morning for thirty days for $500, which I am depositing in the bank. Hope that this will be satisfactory. Please tell me where I can locate your mother in reference to signing the deed, which Jimmie is drawing this week'. On receipt of this letter Fletcher on Monday, October 4, telephoned Andrew and says he told Andrew he, as attorney, and his mother would not execute the contract. Andrew says Fletcher said, 'what right did you have to sell my mother's part of that farm' and that Grieb had sold the farm to a man in Chestertown; Andrew said, 'Well, how did Mr. Grieb sell the farm when he hasn't my O.K. on it?' Nevertheless Andrew had the deed drawn, executed by him and Alexander and sent to his sister, who returned it unexecuted.

Mr. Weinroth on October 6 wrote Mr. Morris that Andrew had 'contacted' him again with reference to the farm and it appeared there was 'some slight disagreement between the owners of the property, which I feel will be straightened out very soon.' However, he advised Morris 'not to make any improvements or undertake any expense' about the farm until after the settlement date, in order 'to protect yourself from any possible loss.' On October 20 Burrell wrote to Morris that he was sorry for the delay in getting the deed, that it had been on the way for several days, 'has to go to Florida to one heir and then to New York for another and two are here at Cecilton. The one at New York owns the farm adjoining * * * and thought she had a buyer for hers and yours together, and wanted Wilson to sell it with hers, but he refused as he already had sold it to you. That is the only mixup, and that is alright now. Andrew Wilson has handled the estate for many years and he says she will sign the deed with the rest of us when she receives it.' On October 24 Morris acknowledged Burrell's letter and said, 'unless I am otherwise notified I'll be down to make settlement on Friday, the 29th.' When the sister refused to execute the deed and returned it unexecuted, Andrew on the afternoon of Monday, October 25, gave Burrell a check of Wilson, Agent, dated October 25, to Morris' order, for $500, and the contract signed by plaintiffs, which Burrell mailed to Morris with a letter, misdated October 24, saying, 'I am returning check for the farm, one of the heirs would not sign the deed, but returned it from Florida unsigned. I am very sorry it did not go through as planned.'

The letter and check did not reach Morris' office until October 27, after Morris that morning had left Philadelphia to visit his father, who was ill. Morris did not return until late on the afternoon of the 29th. Meanwhile on the 28th his daughter had deposited the check, endorsed for deposit by his wife in his name.

When Morris on his return learned that the check had been deposited by his daughter ...