Powichrowski v. Sicinski

• Decision Date: 29 June 1921
• Docket Number: 83.
• Citation: 114 A. 899,139 Md. 376
• Parties: POWICHROWSKI et ux. v. SICINSKI et ux.
• Court: Maryland Court of Appeals

114 A. 899

139 Md. 376

POWICHROWSKI et ux. v. SICINSKI et ux.

No. 83.

Court of Appeals of Maryland

June 29, 1921

Appeal from Circuit Court No. 2 of Baltimore City; H. Arthur Stump Judge.

"To be officially reported."

Suit by Franciszek Sicinski and wife against Alexander Powichrowski and wife. Decree for plaintiffs, and defendants appeal. Reversed, and bill dismissed.

David Ash, of Baltimore (Charles Jackson, of Baltimore, on the brief), for appellants.

Frank G. Turner, of Baltimore, for appellees.

ADKINS J.

This is a suit to enforce specific performance of a contract to purchase a store building, fixtures, and stock of goods.

The bill was filed by appellees on July 20, 1920. It alleges the execution of the contract filed as an exhibit, and that at the time of the execution thereof appellants paid $500 on account of the purchase money, as set out in the contract and that immediately upon the execution thereof possession was delivered to appellants of the property, business, stock of goods, etc., referred to in said contract; and that appellants retained possession thereof, and conducted a retail grocery business, such as had previously been conducted by appellees in said property, disposing of certain goods and replacing certain portions of the stock sold; that appellees made arrangements to comply with their part of the contract, and appellants were notified of the time and place when and where title would be conveyed to them; that notwithstanding appellees have been and now are ready and willing to convey the property mentioned in the contract upon appellants complying with the terms of said contract appellants have refused and have declared their intention not to comply with said contract; that upon appellants abandoning said property, appellees, realizing the value of a grocery business being actively conducted, concluded to operate said business for and on behalf of appellants until such time as they would carry out their contract of purchase, the said determination being communicated to appellants, and as no objection was raised thereto, appellees have continued to conduct said business for and on behalf of appellants; that appellants own two pieces of real estate in Baltimore City, Nos. 2443 and 2502, Fleet street, which said properties appellees believe are the only assets appellants are possessed of.

Prayer of bill is:

(1) That contract may be specifically enforced.

(2) That a receiver may be appointed to take charge of the property mentioned in the contract and the business therein conducted, and to hold said property and conduct said business pursuant to further orders of court for the benefit of the parties to this cause as their respective rights thereto may hereafter be determined.

(3) That appellants may be restrained and enjoined from disposing of, or incumbering or otherwise dealing with, the said properties belonging to them, or either of them, on Fleet street, until the further order of court.

(4) For further relief. The contract, filed with the bill as an exhibit, is as follows:

"This agreement, made this 19th day of March, nineteen hundred and twenty, between Franciszek Sicinski, Emilia Sicinski, his wife, of Baltimore City, State of Maryland, of the first part, Alexander Powichrowski, of the same place, of the second part.

Witnesseth, that the said parties of the first part do 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 Baltimore City, known as 2520 Foster avenue, subject to an annual ground rent of thirty-seven dollars and fifty cents, dwelling, store fixtures, stock shelving and everything belonging to grocery business, at and for the price of six thousand five hundred dollars, of which five hundred dollars have been paid prior to the signing hereof and the balance is to be paid as follows: In cash within thirty days from date.

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, etc., to be paid or allowed for by the vendor to day of settlement.

Witness our hands and seals.

F. Sicinski.

Emilia Sicinski.

Alex. Powichrowski,

Agata Powichrowski."

The answer filed August 9, 1920, admits the execution of the contract and the cash payment, and that appellants took possession of the property and conducted business therein upon the signing of the contract; that they sold certain goods, but avers that they bought other goods largely in excess of goods sold; denies notification of appellants by appellees of the time and place, when and where title would be conveyed, or willingness of appellees to make such conveyance; denies that appellees were ready to convey, and that appellants refused to accept said property, and avers that appellees refused to convey said property to appellants, put them out of the premises, and retained the cash payment, and also goods and merchandise belonging to appellants to the amount of approximately $300; admits that when appellees refused to consummate the contract of sale appellants bought another retail grocery business, and that they are now conducting same; denies that appellants abandoned the business mentioned in the contract, and avers that appellants do not know what appellees have been doing with it, since they forced appellants to vacate the premises; avers that appellants have no objection to the court assuming jurisdiction of the property and business and conducting same by receivers for the benefit of all parties until the merits of the controversy are determined; admits that the properties 2443 and 2502 Fleet street are the only assets possessed by appellants.

Receivers were appointed August 10, 1920, and on their petition they were the same day authorized and directed to employ Franciszek Sicinski, one of the appellees, to conduct the business.

On October 25, 1920, an order was passed, enjoining appellants from selling, incumbering, or giving away the Fleet street properties.

It will not be necessary to review at great length the testimony in this case. Suffice it to say that, according to the testimony of Franciszek Sicinski, who alone testified in behalf of appellees on that point:

Alexander Powichrowski, one of the appellants, after conducting the business with the assistance of the witness and the wife of witness until Saturday, April 10th, at midnight of that day, threw down the keys on the meat block, left the store, and went out. "I said: 'Are you going to come to-morrow morning?' He said: 'I do not come no more.' He did not come Sunday. Monday at 10 o'clock all the bread and cakes lay outside. I had to lock the store. I took the bread in, and at 10 o'clock he came in. I said: 'What is the matter with you; did you sleep over, or what?' He said: 'I am not going to bother with it. I paid for one small ham; I am going to take it.' He took the ham, and I did not see him any more."

The version of Alexander Powichrowski as to what took place on that day is as follows:

"Q. Did he [Sicinski] clerk for you at any time in the store? A. Some time in the morning he opened the door and said, 'How is business?' and he goes.

Q. Did he sell any goods for you during the time you were there? A. No; just the day he put me out.

Q. What day did he put you out? A. Saturday, April 10th quarter of 5.

Q. In the afternoon? A. In the morning. I just come and opened the store, and he took his license. I said, 'I have to stay under your license before the settlement; after the settlement I can take license.' He said, 'No; you cannot sell them; I am going to arrest you.' He was going to call the policeman, and I put a bar on the front store. He said, 'You cannot sell any more.' Then two ladies in the store, I tried to sell them, and he said, 'You cannot sell; you have no license.'

Q. When were you to have a settlement? A. I told him Thursday I would settle, April 10th.

Q. You told him Thursday before the settlement? A. Yes.

Q. You told him Thursday, April 12th? A. No, April 8th, that I would settle April 10th.

Q. He left you there then. A. Yes.

Q. Did you mean it when you say you notified him on the 8th that you would be ready to settle by the 12th of April? A. My time was April 19th, but I wanted to settle April 12th.

Q. Did you have the money to pay him? A. I paid down $500.

Q. Had you made any provision- A. No, sir; I paid all my bills.

Q. You do not understand me. You paid him $500 down, and on the 8th of April you said to him that you were ready to settle on the 12th? A. Yes.

Q. Did you have any money to settle with? A. At the time,

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